Karnataka High Court
Daya @ Dayananda vs State Of Karnataka on 16 January, 2021
Author: B.Veerappa And M.Nagaprasanna
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JANUARY, 2021
PRESENT
THE HON' BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL APPEAL No.2178/2017
C/W
CRIMINAL APPEAL Nos.2171/2017, 2172/2017
AND 2193/2017
IN CRL.A No.2178/2017:
BETWEEN:
DAYA @ DAYANANDA
S/O. YAGAPPA,
AGED ABOUT 55 YEARS,
R/AT KAMANAHALLI,
BAGALORE,
(PRESENTLY R/AT
# 82, INNASAPPA LAYOUT,
CONVENT ROAD, KAMANAHALLI,
THOMAS TOWN POST,
BANGALORE 560084.
(NOW IN JUDICIAL CUSTODY,
CENTRAL PRISON, BANGALORE) .. APPELLANT
(BY SRI HASHMATH PASHA, SENIOR ADVOCATE A/W
SRI KALEEM SABIR, ADVOCATE FOR M/S HASHMATH PASHA AND
ASSOCIATES)
2
AND:
STATE OF KARNATAKA
BY THALAGATTAPURA POLICE,
BANGALORE-
(REPRESENTED BY LEARNED
STATE PUBLIC PROSECUTOR)
...RESPONDENT
(SRI V.M. SHEELVANT, SPP-I A/W
SRI VIJAYKUMAR MAJAGE, ADDL SPP)
****
THIS CRIMINAL APPEAL IS FILED BY THE APPELLANT -
ACCUSED NO.13 UNDER SECTION 374(2) OF THE CODE OF
CRIMINAL PROCEDURE, 1973, PRAYING TO SET ASIDE THE
JUDGMENT OF CONVICTION DATED 29.11.2017 AND ORDER OF
SENTENCE DATED 06.12.2017 PASSED AGAINST HIM IN S.C.
No.231/1998 C/W S.C.NO.135/1999 C/W S.C.NO.212/1999 C/W
S.C.NO.297/1999 ON THE FILE OF HON'BLE VII ADDITIONAL
DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT,
BENGALURU, CONVICTING HIM FOR OFFENCES UNDER SECTIONS
143, 148, 448, 324, 428 AND 302 R/W 149 OF IPC AND
CONSEQUENTLY ACQUIT HIM FOR THE SAID OFFENCES AND HE
MAY BE SET AT LIBERTY TO MEET THE ENDS OF JUSTICE.
IN CRL.A No.2171/2017:
BETWEEN:
1. POUL
S/O MARISWAMY,
AGED ABOUT 54 YEARS,
R/AT SOMANAHALLI VILLAGE,
BANGALORE DISTRICT
3
2. CHOWRAPPA
S/O ANGADI ANTHONY,
AGED ABOUT 57 YEARS,
R/AT SOMANAHALLI VILLAGE,
BANGALORE DISTRICT.
(NOW ALL ARE IN JUDICIAL CUSTODY,
CENTRAL PRISON, BANGALORE)
...APPELLANTS
(BY SRI HASHMATH PASHA, SENIOR ADVOCATE A/W
SRI KALEEM SABIR, ADVOCATE FOR
M/S HASHMATH PASHA AND ASSOCIATES)
AND:
STATE OF KARNATAKA
BY THALAGATTAPURA POLICE,
BANGALORE-
(REPRESENTED BY LEARNED
STATE PUBLIC PROSECUTOR)
...RESPONDENT
(SRI V.M. SHEELVANT, SPP-I A/W
SRI VIJAYKUMAR MAJAGE, ADDL SPP)
****
THIS CRIMINAL APPEAL IS FILED BY THE APPELLANTS -
ACCUSED NOS.16 AND 17 UNDER SECTION 374(2) OF THE CODE
OF CRIMINAL PROCEDURE, 1973, PRAYING TO SET ASIDE THE
JUDGMENT OF CONVICTION DATED 29.11.2017 AND ORDER OF
SENTENCE DATED 06.12.2017 PASSED AGAISNT THEM IN S.C.
No.231/1998 C/W S.C.NO.135/1999 C/W S.C.NO.212/1999 C/W
S.C.NO.297/1999 ON THE FILE OF HON'BLE VII ADDITIONAL
DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT,
BENGALURU, CONVICTING THEM FOR THE OFFENCES UNDER
SECTIONS 143, 148, 448, 324, 428 AND 302 R/W 149 OF IPC AND
CONSEQUENTLY ACQUIT THEM FOR THE SAID OFFENCES AND
THEY MAY BE SET AT LIBERTY, TO MEET THE ENDS OF JUSTICE.
4
IN CRL.A No.2172/2017:
BETWEEN:
1. AROGYA SWAMY,
S/O. CHOWRAPPA,
AGED ABOUT 62 YEARS,
R/AT BYATARAYANAPURA,
BANGALORE,
2. CHINNAPPA
S/O. YAGAPPA,
AGED ABOUT 67 YEARS,
R/AT BYATARAYANAPURA,
BANGALORE,
3. DAVID
S/O. RAJAPPA,
AGED ABOUT 42 YEARS,
R/AT KANAKAPURA TALUK,
RAMANAGARA DISTRICT
4. BABU @ JOHN PRASAD
S/O. BALASWAMY,
AGED ABOUT 43 YEARS,
R/AT KAMANAHALLI,
BANGALORE.
5. BARATHLOME
S/O. RAJAPPA,
AGED BOUT 39 YEARS,
R/AT KAMANAHALLI,
BANGALORE.
(NOW ALL ARE IN JUDICIAL CUSTODY
CENTRAL PRISON, BANGALORE)
...APPELLANTS
(BY SRI HASHMATH PASHA, SENIOR ADVOCATE A/W
SRI KALEEM SABIR, ADVOCATE FOR
M/S HASHMATH PASHA AND ASSOCIATES)
5
AND:
STATE OF KARNATAKA
BY THALAGATTAPURA POLICE,
BANGALORE-
(REPRESENTED BY LEARNED
STATE PUBLIC PROSECUTOR)
...RESPONDENT
(SRI V.M. SHEELVANT, SPP-I A/W
SRI VIJAYKUMAR MAJAGE, ADDL SPP)
****
THIS CRIMINAL APPEAL IS FILED BY THE APPELLANTS -
ACCUSED NOS.7, 8,9,10 AND 12 UNDER SECTION 374(2) OF THE
CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO SET ASIDE
THE JUDGMENT OF CONVICTION DATED 29.11.2017 AND ORDER
OF SENTENCE DATED 06.12.2017 PASSED AGAISNT THEM IN S.C.
No.231/1998 C/W S.C.NO.135/1999 C/W S.C.NO.212/1999 C/W
S.C.NO.297/1999 ON THE FILE OF THE VII ADDITIONAL DISTRICT
AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT,
BENGALURU, CONVICTING THEM FOR THE OFFENCES UNDER
SECTIONS 143, 148, 448, 324, 428 AND 302 R/W 149 OF IPC AND
CONSEQUENTLY ACQUIT THEM FOR THE SAID OFFENCES AND
THEY MAY BE SET AT LIBERTY, TO MEET THE ENDS OF JUSTICE.
IN CRL.A No.2193/2017:
BETWEEN:
1. PUSHPARAJ @ BABU,
S/O SHANTHARAJU,
AGED ABOUT 48 YEARS,
R/AT THOMAS TOWN,
BANGALORE-560084.
6
2. RAVI @ RAVI PRASAD
S/O SHANTHARAJU,
AGED ABOUT 42 YEARS,
R/AT THOMAS TOWN,
BANGALORE-560084
(NOW BOTH ARE IN JUDICIAL CUSTODY,
CENTRAL PRISON, BANGALORE)
...APPELLANTS
(BY SRI HASHMATH PASHA, SENIOR ADVOCATE FOR A/W
SRI KALEEM SABIR, ADVOCATE FOR
M/S HASHMATH PASHA AND ASSOCIATES)
AND:
STATE OF KARNATAKA
BY THALAGATTAPURA POLICE,
BANGALORE-560109.
(REPRESENTED BY LEARNED
STATE PUBLIC PROSECUTOR)
...RESPONDENT
(SRI V.M. SHEELVANT, SPP-I A/W
SRI VIJAYKUMAR MAJAGE, ADDL SPP)
****
THIS CRIMINAL APPEAL IS FILED BY THE APPELLANTS -
ACCUSED NOS.2 AND 3 UNDER SECTION 374(2) OF THE CODE OF
CRIMINAL PROCEDURE, 1973, PRAYING TO SET ASIDE THE
JUDGMENT OF CONVICTION DATED 29.11.2017 AND ORDER OF
SENTENCE DATED 06.12.2017 PASSED AGAISNT THEM IN S.C.
No.231/1998 C/W S.C.NO.135/1999 C/W S.C.NO.212/1999 C/W
S.C.NO.297/1999 ON THE FILE OF HON'BLE VII ADDITIONAL
DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT,
BENGALURU, CONVICTING THEM FOR THE OFFENCES UNDER
SECTIONS 143, 148, 448, 324, 428 AND 302 R/W 149 OF IPC AND
CONSEQUENTLY ACQUIT THEM FOR THE SAID OFFENCES AND
THEY MAY BE SET AT LIBERTY, TO MEET THE ENDS OF JUSTICE.
7
THESE CRIMINAL APPEALS HAVING BEEN HEARD THROUGH
PHYSICAL HEARING AND RESERVED FOR JUDGMENT, COMING ON
FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, B.VEERAPPA, J,
DELIVERED THE FOLLOWING:
JUDGMENT
Criminal Appeal No.2178/2017 is filed by Accused No.13;
Criminal Appeal No.2171/2017 is filed by Accused Nos.16 and 17;
Criminal Appeal No.2172/2017 is filed by Accused Nos.7,8,9,10 and
12; and Criminal Appeal No.2193/2017 is filed by Accused Nos.2
and 3. All these appeals are filed against the common Judgment
of conviction and order of sentence dated 29.11.2017/6.12.2017
made in S.C. No.231/1998 c/w S.C. No.135/1999 c/w S.C.
No.212/1999 c/w S.C. No.297/1999 on the file of VII Addl. District
& Sessions Judge, Bangalore Rural district, Bangalore, in so far as
convicting Accused Nos.2,3,7 to 10, 12,13, 16 and 17 for the
offences punishable under Sections 143, 148, 448, 324, 428, 302
r/w 149 of IPC and sentencing each of them to undergo
imprisonment for a period of 3 months for the offence under
Section 143 r/w 149 of IPC; imprisonment for a period of one year
with fine of Rs.1,000/- for the offence under Section 148 r/w 149 of
IPC; imprisonment for a period of six months for the offence under
Section 448 r/w 149 of IPC; imprisonment for a period of one year
with fine of Rs.1,000/- for the offence under Section 324 r/w 149 of
IPC; imprisonment for a period of six months with fine of
Rs.2,000/- for the offence under Section 428 r/w 149 of IPC; and
imprisonment for life with fine of Rs.25,000/- for the offence under
Section 302 r/w 149 of IPC.
I. BRIEF FACTS OF THE CASE
2. It is the case of the prosecution that Accused No.1 -
Shantharaju (now dead) had a land in Somanahalli village,
Uttarahalli Hobli, Bangalore south taluk, to an extent of 2 acres and
he was growing fruits and vegetables in the said land. He had put
fencing with gate for the entire extent of land and in his land, there
was an electric transformer and from it, electricity was being
supplied to the areas in and around the land. The deceased
Narayana and PW.1 - Thimmaiah, PW.2 - Doddavenkatappa and
PW.3 - Hombalaiah, residents of Somanahalli village had larger
extent of lands and also sugarcane zagari machine (Alemane) for
which electricity supply was from the transformer fixed in the land
of Accused No.1. The deceased Narayana and their family members
used to enter the land of Accused No.1 and unauthorisedly fix fuse
and keep open the gate of garden and because of the said act,
cattle used to enter and eat the crop and cause damage.
Therefore, Accused No.1 has objected and hence, the deceased
Narayana has abused and threatened Accused No.1.
3. It is further alleged that on 9.5.1998 at 6.30 p.m. when
accused No.4 - Francis Kumar and his sister's husband - D. Francis
while returning from their land near Joseph farm, the deceased
Narayana and his servant Nagaraj picked up quarrel with them and
exchange of words and hand blows took place between them.
When Accused No.4 and D. Francis were returning and when they
came near Mariswamy's house, the deceased Narayana and PWs.1
and 2 and their men came in a group and attacked them though
they had taken shelter in the house of Mariswamy and after
entering the said house by removing tiles, assaulted Accused No.4
and his brother-in-law - D. Francis. On the incident, the deceased
Narayana lodged a complaint at 8.30 p.m., pursuant to which FIR in
Crime NO.77/1998 was registered for the offences punishable under
the provisions of Sections 341 and 307 of IPC. On the same
incident for having caused injuries to Accused No.4 - Francis Kumar
and D. Francis, D. Francis had lodged complaint upon which case
was registered in Crime No.78/1998 for the offences punishable
under Sections 324, 307 r/w 34 of IPC.
4. It is further case of the prosecution that on 9.5.1998 at
about 10.30 p.m., when PWs.1 to 3 and others were in their house,
the Accused No.1 - Shantharaju (now dead) and his relatives and
10 others said to have trespassed into their house and assaulted
PWs.1 to 3 and caused damage to the household articles and
tractor and went away. After some time, one electric Krishnappa
had brought the deceased Narayana in an injured condition stating
that near their land on the way from Thalagattapura Police Station
to village in Maruthi omni van, the deceased Narayana was attacked
by accused persons and caused injuries. Immediately, the
deceased Narayana and Pws.1 to 3 and others went to Police
Station and from there to Deepak Nursing Home for treatment and
from Deepak Nursing Home, they were referred to Victoria Hospital
and from Victoria hospital, they were referred to NIMHANS hospital
and again referred back to Victoria hospital and thereafter took
treatment in Deepak Nursing Home as an inpatient. PW.1 lodged
written complaint before the Police at 11.45 p.m. upon which,
Crime No.79/1998 was registered for the offences under the
provisions of Sections 143, 147, 148,448, 324, 307, 341 r/w 149 of
IPC. After the death of the deceased, Section 302 of IPC was also
included.
5. It is further case of the prosecution that for the same
incident, the accused No.2 - Pushparaj had lodged a complaint
stating that he and his friends by name Pratap, Sundar and David
while returning from Thatagupe towards their house in Somanahalli
near the house of PW.1 - Thimmaiah, PWs.1 to 3 and others with
an intention to kill them assaulted with chopper and clubs and
caused serious injuries. Accordingly, Accused NO.2 - Pushparaj
had lodged the complaint against PWs.1 to 3 and others, upon
which, Crime No.80/1998 was registered for the offences
punishable under Sections 143, 147, 148, 323, 324, 307 r/w 149 of
IPC.
6. It is further case of the prosecution that in respect of the
incident happened at 6.30 p.m. on 9.5.1998, two FIRs in Crime
No.77/1998 and Crime No.78/1998 were treated as case and
counter-case and investigated by different Police Officers
independently. In Crime No.77/1998, charge sheet was filed and
in Crime No.78/1998, the Police filed the 'B' report. Therefore, D.
Francis defacto complainant challenged the 'B' report by filing
complaint under Section 200 of the Code of Criminal Procedure as
protest memo and the Chief Judicial Magistrate took cognizance of
the offences alleged and examined the complainant and his
witnesses and thereafter, the case was tried before the said Court
and ultimately, both the cases ended in acquittal.
7. It is further case of the prosecution that in respect of the
incident happened at 10.30 p.m. on 9.5.1998, two FIRs in Crime
No.79/1998 and 80/1998 were registered. The FIR in Crime No.
79/1998 was registered on the complaint of PW.1 - Thimmaiah and
FIR in Crime No.80/1998 was registered on the complaint of
Accused No.2 - Pushparaj and both were treated as case and
counter-case, but investigated by different Investigating Officers
independently. The Police Officer who investigated Crime
No.79/1998 filed the charge sheet against 18 accused persons and
later, the matter was committed to the learned Sessions Judge and
numbered as S.C. No.231/1998 c/w 135/1999 c/w 212/1999 c/w
297/1999 and trial was conducted. In respect of the case
registered in Crime No.80/1998 on the complaint of Accused No.2 -
Pushparaj, 'B' report was filed without proper investigation. In
S.C. No.231/98 and connected matters, the learned Sessions Judge
after committal framed the charges, read over and explained to the
accused, who pleaded not guilty and claimed to be tried.
8. In order to prove the guilt of the accused, the
prosecution has examined PWs.1 to 19 and got marked the material
documents - Ex.P1 to Ex.P21 and material objects - Mos.1 to 13.
On behalf of the defence, the accused got examined DWs. 1 and 2
and the material documents - Ex.D1 to Ex.D33. After completion of
the evidence of the prosecution witnesses, the statements of the
accused as contemplated under Section 313 of the Code of Criminal
Procedure were recorded. The accused denied all the incriminating
evidence adduced by the prosecution witnesses.
II. FINDINGS RECORDED BY THE LEARNED
SESSIONS JUDGE
9. The learned Sessions Judge based on the material on
record, has formulated six points for consideration. After
considering both the oral and documentary evidence on record, the
learned Sessions Judge has recorded a finding that the prosecution
has proved beyond all reasonable doubt that on 9.5.1998 at about
10.30 p.m. at Somanahalli village within the jurisdiction of
Thalaghattapura Police Station, with a common intention, the
accused persons assaulted PW.1, PW.2 and PW.3, thereby
committed an offence punishable under Section 143 r/w 149 of IPC.
10. The learned Sessions Judge further recorded a finding
that the prosecution has proved beyond all reasonable doubt that
the accused persons on the same day and at the same time,
being the members of the unlawful assembly, to disrupt the peace,
had armed with deadly weapons viz., iron rod, club, cycle chain,
thereby committed an offence punishable under Section 148 r/w
149 of IPC.
11. The learned Sessions Judge further recorded a finding
that the prosecution has proved beyond all reasonable doubt that
on the same day and at the same time, the accused persons
trespassed into the house of PW.1 - Thimmaiah, thereby committed
an offence punishable under Section 448 r/w 149 of IPC.
12. The learned Sessions Judge also recorded a finding that
the prosecution has proved beyond all reasonable doubt that the
accused persons on the same day and at the same time, being the
members of the unlawful assembly armed with deadly weapons -
iron rod, club, cycle chain assaulted PW.1 - Thimmaiah, PW.2 -
Doddavekatappa and PW.3 - Hombalaiah, thereby committed an
offence punishable under Section 324 r/w 149 of IPC.
13. The learned Sessions Judge further recorded a finding
that the prosecution has proved beyond all reasonable doubt that
the accused being the members of the unlawful assembly entered
the house of PW.1, destroyed T.V., radio, wall clock, petromax and
the tractor bearing Regn No.KA02-T-688, thereby committed an
offence punishable under Section 427 r/w 149 of IPC.
14. The learned Sessions Judge further recorded a finding
that the prosecution has proved beyond all reasonable doubt that
the accused being the members of the unlawful assembly assaulted
the deceased Narayana at Somanhalli gate with an iron rod, club,
cycle chain and caused serious injuries and committed murder,
thereby committed an offence punishable under Section 302 r/w
149 of IPC.
15. Accordingly, the trial Court by the impugned judgment of
conviction and order of sentence, convicted and sentenced the
accused persons for the offences punishable under Sections 143,
148, 448, 324, 428, 302 r/w 149 of IPC. Hence, the present
appeals are filed by the accused persons.
16. We have heard the learned counsel for the parties.
III. ARGUMENTS ADVANCED BY SRI HASHMATH PASHA,
LEARNED SENIOR COUNSEL FOR THE APPELLANTS -
ACCUSED
17. Sri Hashmath Pasha, learned senior counsel for the
appellants - accused persons in these criminal appeals contended
that the impugned judgment of conviction and order of sentence
passed by the trial Court convicting the accused persons for the
offences punishable under Sections 143, 148, 448, 324, 428 and
302 r/w 149 of IPC, is erroneous and contrary to the material on
record and the same is liable to be set aside. He further contended
that there is an inordinate delay in lodging the complaint and the 1st
FIR is suppressed by the prosecution. PWs.1 to 5 are the
witnesses for the offences under Sections 448, 324, 427, 143 r/w
149 of IPC. PW.1 narrated the incident occurred on that day and
the evidence of other prosecution witnesses do not connect any of
the accused for commission of the offences. Further, no Test
Identification parade was conducted to find out who assaulted the
deceased Narayana. He would further contend that no
identification features are mentioned either in the complaint or in
the FIR. The evidence of PWs.5 and 8 regarding the assault on the
deceased Narayana cannot be relied upon as they are not able to
identify any of the accused. The said material aspects have not
been considered by the learned Sessions Judge while passing the
impugned judgment of conviction and order of sentence.
18. Learned senior counsel further contended that there was
no source of power (electricity supply) at the place of incident.
PWs.1 to 4 have not explained the injuries on Accused Nos.2 and 9
and one Sundar, thereby they have suppressed the genesis of the
case. PWs. 1 to 5 and 8 are the accused persons in the counter-
case. The said material has not been considered by the trial Court
in the proper perspective while passing the impugned judgment of
conviction and order of sentence.
19. Learned senior counsel would further contend that with
regard to the incident happened at 10.30 p.m. on 9.5.1998, two
FIRs are registered. The FIR was registered in Crime No.79/1998
on the complaint of PW.1 - Thimmaiah and the FIR was registered
in Crime No.80/1998 on the complaint of Accused No.2 - Pushparaj
and both were treated as case and counter-case, but investigated
by different Investigating Officers independently. The Police
Officer who investigated Crime No.79/1998 filed the charge sheet
against 18 accused persons and later, the matter was committed to
the learned Sessions Judge and numbered as S.C. NO.231/1998
c/w 135/1999 c/w 212/1999 c/w 297/1999 and trial was
conducted. In respect of the case registered in Crime No.80/1998,
'B' report was filed without proper investigation. The 'B' report was
subject matter of PCR, which was subsequently numbered as S.C.
No.76/2004. The Accused No.2 - Pushparaj in the present case is
the complainant in the counter-case - S.C. No.76/2004 and PWs.1
to 5 & 8 in the present case are accused in the counter-case. The
learned Sessions Judge conducted trial separately in both the cases
and in S.C. No.231/1998 and connected matters, convicted the
present appellants - accused persons and in S.C. No.76/2004,
acquitted the accused persons therein (i.e., PWs.1,2,3,4,5 and 8 in
the present case), thereby injustice caused to the present accused
persons. Learned senior counsel would further contend that both
the FIRs are one sided and do not disclose the true facts. He
contended that two Investigating Officers cannot conduct the
investigation in case and counter-case and only one Investigating
Officer has to conduct the investigation in both the case and
counter-case to dig out the real truth and to find out which case is
true, in view of Clause 1179 of Police Manual. The same has not
been done. On that ground also, the impugned judgment of
conviction and order of sentence cannot be sustained.
20. Learned senior counsel would further contend that the
cause of death of the deceased Narayana as per the evidence of the
doctor (PW.11) was due to the respiratory failure as a result of
complication of injuries sustained and it does not amount to murder
as per post-mortem report - Ex.P5. Though the death memo
dated 15.5.1998 - Ex.P8 issued by the Bangalore Hospital, the
doctor who treated the deceased Narayana has not been examined.
He would further contend that Dr. Santosh, Deepak Nursing Home,
who issued Ex.P11 to Ex.P14 - Wound Certificates dated 31.7.1998,
has not been examined, but examined only PW.18. To identify the
signature of Dr. Santosh, no records are available in the nursing
home. The incident occurred on 9.5.1998 and Dr.Santosh worked
for only one month and as on 31.7.1998, Dr. Santosh was not on
job and therefore, the wound certificates issued by the hospital on
31.7.1998, cannot be believed. The medical certificate issued is
doubtful as the doctor who treated the deceased has not been
examined.
21. The learned Senior Counsel further contended that the
entire investigation is tainted from the beginning till the completion.
The said material has not been considered by the learned Sessions
Judge while passing the impugned judgment of conviction and order
of sentence against the accused persons. Therefore, he sought to
allow these appeals filed by the accused persons by setting aside
the impugned judgment of conviction and order of sentence.
22. In support of his contentions, the learned senior counsel
relied upon the following judgments:
1. Karnataka v. Balappa Bhau Vadagave, reported in
ILR 1984 Kar. 21 (paragraphs 70, 71, 72, 74, 75)
2. Sudhir v. State of M.P., reported in (2001)2 SCC
688 (paragraph-8)
3. Nathi Lal v. State of U.P., reported in (1990)
Supp. 5 SCC 145
4. Meharaj Singh (L/Nk.) v. State of U.P., reported
in (1994)5 SCC 188 (with regard to FIR...
paragraph-12)
5. Balbir v. Vazir, reported in (2014)12 SCC 670
(with regard to identification of the accused -
paragraph-30)
6. Rehmat v. State of Haryana reported in (1996)10
SCC 346 (with regard to identity of the accused -
paragraph-10)
7. Musa Khan v. State of Maharashtra, reported in
AIR 1976 SC 2566 (with regard to Section -149 of
IPC ... paragraph-5)
8. Lakshmi Singh v. State of Bihar reported in
(1976)4 SCC 394 (with regard to identity ..
paragraph-12)
9. State of Rajasthan v. Rajendra Singh, reported in
AIR 1998 SC 2554 (paragraph-7)
10. A.P. v. Punati Ramulu, reported in 1994 Supp (1)
SCC 590 (paragraph-5)
IV. ARGUMENTS ADVANCED BY SRI V.M. SHEELVANT,
LEARNED SPP FOR THE RESPONDENT - STATE
23. Per contra, Sri V.M. Sheelvant, learned State Public
Prosecutor while justifying the impugned judgment of conviction
and order of sentence, has contended that though two complaints
filed by PW.1 - Thimmaiah and Accused No.2 - Pushparaj, are
arising out of the same incident occurred on 9.5.1998, the mere
conducting investigation by two Investigating Officers in respect of
two complaints between the parties, will not vitiate the proceedings
in view of the provisions of Section 465 of the Code of Criminal
Procedure. He would further contend that PW.2 and 3 are injured,
who stated that the accused persons assaulted the injured
witnesses and the deceased. Mere minor discrepancies in the
cross-examination of the witnesses, will not prejudice the case of
the prosecution. He would further contend that PWs.1,2,3 and 4
are the eye witnesses to the incident occurred at 10.30 p.m. and
PWs.5 and 8 are the eye witnesses to the incident occurred at
11.45 p.m. The evidence clearly corroborates each other and the
incident is proved. He would further contend that the presence of
the accused at 10.30 p.m. as per FIR, is not disputed. The
defence is contrary to the complaint allegations. PWs.1 to 5
identified the accused persons in the Court while PW.5 and 8 are
eye witnesses to the assault on the deceased Narayana. As per
the wound certificate - Ex.P11 of the deceased issued by Dr.
Santosh, the deceased sustained 12 injuries. The death of the
deceased Narayana was due to respiratory failure as a result of
complication of the injuries sustained. Further, PWs.1 to 3 have
also sustained injuries. He would further contend that mere delay
in filing the complaint, cannot take away the entire prosecution
case, when the evidence on record clearly implicates the accused in
the commission of the offences. Not conducting Test Identification
parade is not a ground to acquit the accused persons. Both the oral
and documentary evidence on record clearly depicts that the
accused involved in the homicidal death of the deceased. In the
facts and circumstances, the learned Sessions Judge rightly
convicted the accused persons. Therefore, he sought to dismiss
these criminal appeals.
24. In support of his contentions, learned SPP relied upon the
following judgments:
1. Dev Karan v. State of Haryana, reported in
(2019)8 SCC 596 (with regard to Section 149 of
IPC ... paragraphs 15, 16 and 17 to 20)
2. Mano Dutt v. State of U.P., reported in (2012)4
SCC 79 (with regard to Section 302 r/w 34 of IPC
.. paragraphs 44 to 46)
3. State of U.P. v. Naresh, reported in (2011)4 SCC
324 (paragraphs 26, 27 and 30)
4. Bhajan Singh v. State of Haryana reported in
(2011)7 SCC 421 (paragraphs 33, 34 and 40)
5. Abdul Sayeed v. State of M.P., reported in
(2010)10 SCC 259 (paragraphs 25 to 27)
6. Mohar v. State of U.P., reported in (2002)7 SCC
606 (paragraphs 11 and 12)
V. POINT FOR DETERMINATION
25. In view of the rival contentions urged by the learned
counsel for the parties, the only point that would arise for our
consideration in these criminal appeals is:
Whether the appellants - accused persons in
these criminal appeals have made out a case to
interfere with the impugned judgment of conviction
and order of sentence passed by the trial Court
convicting them for the offences punishable under
Sections 143, 148, 448, 324, 428, 302 r/w 149 of
IPC, in the facts and circumstances of the case ?
26. We have given our anxious consideration to the
arguments advanced by the learned counsel for the parties and
perused the entire material including the original records carefully.
VI. EVIDENCE ADDUCED BY THE PROSECUTION WITNESSES
AND THE DEFENCE WITNESSES AND THE DOCUMENTS
RELIED UPON
27. Being the appellate Court, in order to re-appreciate the
entire material on record, it is relevant to consider the evidence of
the prosecution witnesses and the defence witnesses and the
documents relied upon by them.
(i) PW.1 - Thimmaiah, who is the elder brother of the
deceased is the complainant and eye witness to the incident. He
lodged the complaint as per Ex.P1. He deposes with regard to the
incident occurred near his house and stated that the deceased
Narayana was brought by Electric Krishnappa on his scooter in an
injured condition stating that he was assaulted near his land. He
supported the prosecution case.
(ii) PW.2 - Doddavenkatappa is elder brother of the deceased
Narayana and he is an injured eye-witness for the incident near his
house. He supported the prosecution case.
(iii) PW.3 - Hombalaiah is 2nd elder brother of the deceased
Narayana and he is an injured eye witness for the incident near his
house. He supported the prosecution case.
(iv) PW.4 -Shanthappa is the eye witness to the incident near
the house. He supported the prosecution case.
(v) PW.5 - Nagaraju is brother-in-law of the deceased
Narayana. He is an eye witness to the incident near the land at
Somanahalli road. He supported the prosecution case.
(vi) PW.6 - Somashekar is the witness to the spot mahazar -
Ex.P2. He turned hostile to the case of the prosecution.
(vii) PW.7 - Narayana is the witness to the spot mahazar -
Ex.P2. He turned hostile to the case of the prosecution.
(viii) PW.8 - Vijaykumar, who is the brother-in-law of the
deceased is the eye witness to the incident of assault on deceased
near land on Somanahalli road. He supported the prosecution
case.
(ix) PW.9 - M.S. Basavaraj is the Village Secretary, who
issued House extract in Form No.9 of PW.1's house. He supported
the prosecution case.
(x) PW.10 - D.C.K. Kalegowda is the panch to the Ex.P4 -
inquest mahazar held in Bangalore Hospital Mortuary. He
supported the prosecution case.
(xi) PW.11 - Dr. Anand is the doctor, who conducted autopsy
over the dead body of the deceased Narayan on 15.5.1998 in
between 12 noon and 1.30 p.m. and issued the post-mortem report
- Ex.P5. He has opined that the death was due to respiratory
failure due to complication of injuries sustained. He supported the
prosecution case.
(xii) PW.12 - Venkataswamy is the Head Constable and
Station House Officer of Thalghatpura Police Station, who received
the Death Memo on 15.5.1998 at 7.45 a.m, from Bangalore
Hospital as per Ex.P8 intimating the death of Narayana.
Accordingly, he registered the 2nd FIR under Section 302 of IPC as
per Ex.P7. He supported the prosecution case.
(xiii) PW.13 - V. Shekar is the Investigating Officer, who took
up further investigation on 15.5.1998 and conducted inquest. He
supported the prosecution case.
(xiv) PW.14 - Marigowda is the Head Constable, who carried
the 1st FIR - Ex.P10 on 10.5.1998 and delivered to the Magistrate
and on 15.5.1998, he carried the 2nd FIR - Ex.P7 and delivered to
the Magistrate. He also carried counter-case FIR in Crime
No.80/1998 as per Ex.D8 and delivered to the Magistrate. He
supported the prosecution case.
(xv) PW.15 - K.V. Puttathimmegowda is the Circle Inspector
of Police, who took up further investigation from PW.13 on
21.7.1998 and conducted investigation and filed the charge sheet
on 10.3.1999. He supported the prosecution case.
(xvi) PW.16 - Venkatachala is the panch for recovery of
weapons at the instance of Accused No.2 to Accused No.4 under
Ex.P15 - mahazar. He turned hostile to the case of the
prosecution.
(xvii) PW.17 - Chowdappa is the ASI of Thalagattapura Police
Station. He was the Station House Officer on 9.5.1998 at 11.45
p.m. He has deposed that PW.1 - Thimmaiah presented a written
complaint as per Ex.P1, upon which Crime No.79/1998 was
registered and issued the FIR as per Ex.P10 and on 10.5.1998, he
visited the scene of occurrence and drawn the spot mahazar. He
supported the prosecution case.
(xviii) PW.18 - Dr. Ravishankar is the doctor of the Deepak
Nursing Home, who deposed that one doctor by name Dr. Santhosh
Kumar said to have treated the deceased Narayana and PWs.1 to 3
and issued the wound certificates as per Ex.P11 to Ex.P14. He
identified the signature of Dr. Santhosh Kumar. He supported the
prosecution case.
(xvix) PW.19 - K. Rudrappa is the panch for recovery of the
weapon at the instance of Accused No.1 and Accused Nos.2 to 4
under Ex.P15 - mahazar. He has turned hostile to the case of the
prosecution.
(xx) DW.1 - Dr.Ajith Bendict Royan is the Medical Officer in
Hosmat Hospital. He has examined the Accused No.2 - Pushparaj,
Accused No.4 - Francis Kumar and one Mr. Sundar Raj on
12.5.1998 and deposed regarding injuries sustained and treatment
given. The medical records issued by him are produced and
marked as per Ex.P18 to Ex.P27. He supported the case of the
defence.
(xxi) DW.2 - Dr. Rama Jayaram is the Casualty doctor in the
Victoria Hospital. She has deposed that on 10.5.1998 at 1.25 a.m.,
she examined Accused No.9 - David and Accused No.2 - Pushparaj
and one Mr. Sundaraj and noted the injuries in accident register.
Ex.D28 to Ex.D31 are the Accident Register Extracts. She also
examined PWs.1 to 3.
28. Based on the oral and documentary evidence of the
prosecution witnesses as well as the defence witnesses, the learned
Sessions Judge proceeded to convict the appellants - accused for
the offences punishable under Sections 143, 148, 448, 324, 428,
302 r/w 149 of IPC.
VII. CONSIDERATION
29. The case of the prosecution is that on 9.5.1998 at 6.30
p.m. when accused No.4 - Francis Kumar and his sister's husband -
D. Francis while returning from their land near Joseph farm, the
deceased Narayana and his servant Nagaraj picked up quarrel with
them and exchange of words and hand blows in between them
took place. Thereafter at about 10.30 p.m., when PWs.1 to 3 and
others were in their house, Accused No.1 - Shantharaju (now dead)
and his relatives and 10 others said to have trespassed into their
house and assaulted PWs.1 to 3 and caused damage to the
household articles and tractor and went away. After some time,
one Electric Krishnappa (CW.29) had brought the deceased
Narayana in the injured condition stating that near their land on the
way from Thalaghattapura Police Station to the village in Maruthi
omni van, accused persons attacked the deceased Narayana and
caused injuries. Thereafter, the deceased Narayan was taken to
Deepak Nursing Home for treatment and from Deepak Nursing
Home, they were referred to Victoria Hospital and from Victoria
hospital, they were referred to NIMHANS hospital and again
referred back to Victoria hospital and thereafter took treatment in
Deepak Nursing Home as an in-patient. With regard to this
incident, PW.1 lodged written complaint before the Police at 11.45
p.m. on 9.5.1998, upon which case in Crime No.79/1998 was
registered for the offences punishable under the provisions of
Sections 143, 147, 148, 448, 324, 307, 341 r/w 149 of IPC.
Thereafter, the deceased died and after the death of the deceased
Narayana, Section-302 of IPC was also included.
30. It is the case of the defence that in the same incident,
the Accused No.2 - Pushparaj had also lodged a complaint stating
that he and his friends by name Pratap, Sundar and David while
returning from Thatagupe towards their house in Somanahalli near
the house of PW.1 - Thimmaiah, PWs.1 to 3 and others with an
intention to kill them assaulted with chopper and clubs and caused
serious injuries to them and accordingly, Accused NO.2 - Pushparaj
had lodged complaint, upon which case in Crime No.80/1998 was
registered for the offences under Sections 143, 147, 148, 323, 324,
307 r/w 149 of IPC.
31. It is also not in dispute that complaint lodged by PW.1
was registered as Crime No.79/98 and after investigation, the Police
filed the charge sheet and thereafter, the case was committed to
the learned Sessions Judge and numbered as S.C. No.231/98 c/w
S.C. No.135/99 c/w S.C. No.212/99 and S.C. No.297/99. Crime
No.80/98 arising out of the complaint lodged by Accused NO.2 -
Pushparaj was numbered as S.C. No.76/2004. Both the complaints
were arising out of the same incident. Unfortunately, two
Investigating Officers conducted investigation separately and in the
Crime No.79/98 arising out of the complaint lodged by PW.1, the
Police filed the charge sheet and in Crime NO.80/98 arising out of
the complaint lodged by Accused No.2 - Pushparaj, the Police filed
the 'B' report.
32. Ex.P1 - complaint lodged by PW.1 - Thimmaiah depicts
that on 9.5.1998 at about 10.30 p.m. after finishing dinner, when
himself, his wife - Chikkamuniyamma (CW.4) , his sister-in-laws -
Seethamma (CW.6) and Hanumakka (CW.5), his brothers -
Hombalaiah (PW.3) and Doddavenkatappa (PW.2) were sitting and
talking in the house, Accused Nos.1,13 and 14 and ten others
forming an unlawful assembly holding deadly weapons - iron rod,
club, cycle chain trespassed into the house, asked for the deceased
Narayana complaining that inspite of telling him not to fix electric
fuse, he has fixed fuse in his land. So scolding the deceased
Narayana, Accused No.1 - Shantharaju, his sons and others, who
have accompanied him, assaulted PWs.1 to 3 with club and iron rod
and destroyed the household articles like TV, wall clock, small lamp,
chair, radio and also tractor parked in front of the house.
Knowing the incident, when the deceased Narayana was returning
to home alongwith Nagaraju and Kumar in the car bearing Regn.
No.KA.01.N.687, on the way when they were near the land of PW.1,
accused persons obstructed and assaulted the deceased Narayana
with an iron rod, club, cycle chain on head, eyes, chest, nose and
legs and caused serious injuries and damaged the car. On hearing
the incident, One Shivakumar from Kaggalipura took all of them
in his car and admitted to Bangalore hospital. The complaint was
registered on 9.5.1998 at about 23.45 hours for the offences
punishable under Sections 143, 147, 148, 448, 427, 324, 307, 341
r/w 149 of IPC. Admittedly, the said Shivakumar, who has taken
the injured to the hospital, has not lodged the complaint though he
went to the Police Station. The said Shivakumar has also not been
examined before the Court. It is also alleged that counter-case is
an after thought. The said aspects have not been considered by
the learned Sessions Judge in the proper perspective.
33. This Court being the appellate court, in order to re-
appreciate the entire material on record, it is relevant to consider
the evidence of some of the important prosecution witnesses.
(i) PW.1 in the cross-examination, has admitted that at
about 10.30 p.m. on the date of the incident, 18 persons
trespassed into their house and except 3 persons, he is not aware
of any other persons. He also admitted that the Accused No.1, who
was residing in his village and his sons - Pushparaj and Ravi are
known to him. He also admitted that there is a delay in lodging
the complaint as his brother - the deceased Narayana reached
home after about 45 minutes to one hour. According to PW.1, the
deceased Narayana was brought in a scooter by one Krishnappa
(CW.13). But, the said Krishnappa has not been examined before
the Court. PW.1 further deposed that they were in the hospital for
about 15 minutes and thereafter, the written complaint as per
Ex.P1 was filed and he is not aware with regard to the exact time of
lodging the complaint. He also admitted regarding the delay in
lodging the complaint. He also admitted that Accused No.18 is son
of one Narayanagowda from the same village and is far related to
him and Saraswathi is the daughter of Narayanagowda. He also
admitted that there was a complaint by Saraswathi against him and
Narayana and they have been acquitted in the said case. He also
admitted that Narayanagowda opposed the deceased Narayana in
the panchayath elections and succeeded.
(ii) PW.2 - Doddavenkatappa deposed that Accused Nos.1
to 3 and 18 persons came to his house on the date of incident and
except Accused Nos.1 to 3, 8, 13, 16 and 17, he could not identify
others. In the cross-examination, he has admitted the counter-
case lodged against them by the accused persons. He further
deposed that 5 to 6 days, he has not informed the incident to
anybody.
(iii) PW.3 - Hombalaiah has deposed that he could not
identify any of the accused persons except Accused Nos.6,8 and 13.
He also admitted in the cross-examination with regard to the
counter-case filed against them by the Accused No.2 - Pushparaj.
(iv) PW.4 - Shanthappa also stated that he could not notice
as to who assaulted whom since he was in frightened condition. In
the cross-examination, he has admitted that he could not identify
as to who has come to the house and could not say as to who
assaulted whom. He admitted that before the lodging the
complaint, the Police visited the spot and further stated that his
memory is fade and could not identify the accused since nearly 11
years has elapsed from the date of the incident.
(v) PW.5 has admitted in the cross-examination that when
the incident occurred at 10.30 p.m, the deceased Narayana was in
the Police Station. The counter-case was also admitted by him.
PW.5 also admitted that while going to the hospital, he went to the
Police Station also. He also admitted that nowhere it is stated in
the hospital about the person who assaulted. After six days of the
incident, he has given the statement to the Police. He also stated
that he could not identify as to who assaulted whom since the
incident took place 10 years back and his memory is fade.
(vi) PW.8 in his examination-in-chief has stated that he
could not identify the accused persons and also as to who assaulted
the deceased Narayana. In the cross-examination, he has admitted
that there was previous quarrel between PWs.1 to 3 and the
Accused No.1 and stated that they have lodged the complaint in the
Police Station and went to the hospital. He further deposed that he
has seen the accused for the first time in the Court. The
admissions in the evidence of PWs.1 to 5 and 8 has not been
considered by the learned Sessions Judge in the proper perspective
while passing the impugned judgment of conviction and order of
sentence.
(vii) PW.11 -Dr. Anand has deposed that since 1992, he has
been working as Professor at Kempegowda Institute of Medical
Sciences and on 15.5.1998, he received a requisition from the
Circle Inspector of Police, Horahalli Circle to conduct the post-
mortem on the dead body of the deceased Narayana, aged about
42 years. He conducted the post-mortem examination on the
same day between 12.00 noon and 1.30 p.m. On external
examination, he found rigor mortis all over the body and post
mortem stains on the back of the body. He found following external
injuries:
1. Sutured wound over the top of the head on the
right side 4.5cms.
2. Laceration over the root of the nose on the left
side 1.5 cms x 1cms x skin deep.
3. Left upper lacerated in the middle 0.5cms x
0.5cms.
4. Three linear abrasion on front of the right side
chest 9.0cms x 0.5cms each covered with brown
scab.
5. Abrasion on the left side front of the chest in the
upper part 3x0.5 cms covered with brown scab.
6. Abrasion on the left side front of the chest in the
upper part below the neck 4 x 5 cms covered with
brown scab.
7. Abrasion on the lateral aspect of left arm on 5 x
1.5 cms covered with brown scab.
8. Abrasion over the back of abdomen on the left
side 6x2 cms covered with brown scab.
9. Abrasion over the back of left hand 1 x 0.5 cms
10. Contusion over the lateral aspect of the right arm
20 x 8 cms.
11. Abrasion voer the lateral aspect of the middle of
right arm 1.5 x 0.5cms brown scab.
12. Sutured wound over the dorsal aspect of the right
index finger 3 cms.
13. Abrasion over the medial aspect of the left knee 2
x 1.5cms.
14. Elastocrape bandage present over right fore arm
and hand on removal of the bandage hand is
swollen.
15. Plaster of paris cast present over right leg and
foot.
16. On removal of the cast ankle and foot are swollen.
The doctor (PW.11) further stated that on dissection, he
found the following internal injuries.
1. left temporalis muscle was contused
2. brain was edematous.
3. 4,5 & 6 ribs on the left side fractured in the mid
ancillary lines.
4. 7 to 10 ribs on the left side fractures in the
postural angle
5. left side pleural cavity contained blood 200ml.
6. Right sternocleidomastoid muscle was contused
7. Right lung middle lobe was adherent to chest wall.
8. Left lung both lobes lacerated.
9. Liver, kidney and spleen were paled
10. Distal Phalanax of right middle finger was
fractured.
11. Right fibula was fractures at the lower 1/3rd.
The doctor (PW.11) opined that the death was due to
respiratory failure as a result of complication of injuries sustained.
In the cross-examination, doctor (PW.11) has admitted that
external injuries 4 to 9, 11 & 13 are almost healed. He further
admitted that except injury Nos.1 and 12, all other injuries are not
surgically attended, but they are only treated. Before issuing the
post-mortem report, he has secured the treatment extract from the
Bangalore hospital. He further stated that as per the case sheet,
the patient was under respiratory problem. The witness volunteers
that respiratory failure in this case was due to the injuries caused to
the ribs and lungs and he could not say as to what was the cause
for complication. The said material aspects of medical evidence
are also not considered by the learned Sessions Judge while passing
the impugned judgment of conviction and order of sentence against
the accused persons.
(viii) P.W.13 - V. Shekhar, who was investigating officer, has
deposed that he was working from December 1995 to July 1998 in
Thalghattapura Police Station as Circle Inspector of Police. On
15.5.1998, the injured Narayana was taking treatment in Bangalore
Hospital and on the information received about his death, he took
charge from P.W.12 and continued the investigation. Accordingly,
he visited the Bangalore Hospital and drew the inquest
panachanama in presence of the witnesses as per Ex.P.4, recorded
the statements of the witnesses - C.Ws.16 and 28 and P.Ws. 5 and
8. Thereafter, he sent the dead body of the deceased to Kims
Hospital for postmortem report. On the same day he went to
Somanahalli village and recorded the statements of P.Ws.1 and 3.
On 16.5.1998, he recorded the statements of C.Ws.4 and 6 and
P.Ws.2 and 4. On 17.5.1998 he went to Somanahalli village and
seized the blood stained clothes kept in the house of accused No.1
and drew panchanama as per Ex.P.9 and seized the material
objects - M.Os.1 to 9 and 13. He has put his signature at Ex.P.9(a)
Accordingly, on 21.5.1998, he sent the seized material objects to
Forensic Science Laboratory and on 25.5.1998, recorded the
statement of C.W.34 and received the postmortem report on
30.6.1998 as per Ex.P.5. On 20.7.1998, he has transferred the file
to C.W.41.(P.W.15). In the cross-examination, he has admitted
that he had seen the case and given the evidence. He recorded the
statement of P.Ws. 5 and 8 for the first time at the time of inquest
panchanama. He has admitted that in Ex.P.6 - the requisition in
Form No.146 sent to the doctor by the Investigating Officer except
mentioning the name of accused No.1, there is no whisper about
other accused persons. It is also admitted by him that he recorded
the statement of P.W.3 for the first time; He has not deposed that
P.W.3 had earlier given his statement; He has recorded the
statement of P.W.2 for the first time on 16.5.1998. Admittedly
Medico Legal Case registers from the concerned hospitals viz.,
Deepak Nursing Home, Victoria Hospital, NIMHANS, Victoria
Hospital were not produced from the concerned hospitals and the
concerned doctors are also not examined from the said hospitals.
He has further deposed that at the time of drawing Ex.P.4, panch
witness P.W.5 had given his statement as per Exs.D.1 to 4. P.W.5
and 8 have not deposed that as there was street light, they had
identified the accused. He also admitted filing of the counter case
by the accused persons against P.W.1 to 9 and others. He does not
know whether accused No.2 Pushparaj, accused No.9 - David and
Sundar were injured or not in Crime No.80/98. He did not take any
Xerox copy of the case. According to him, it is not correct that one
investigating officer should be appointed to investigate a case and
counter case. As far as statement of P.Ws.2 and 4, he does not
know how accused Nos.2 and 9 and Sundar sustained injuries. He
has denied the suggestion that he had obtained the wound
certificates with regard to accused Nos.2, 9 and Sundar. He does
not know whether Thalghattapura Police had sent accused Nos.2, 9
and Sundar to Victoria Hospital for treatment. He has denied the
suggestion that in order to suppress the truth, he has not taken the
counter case.
(ix) P.W.15 - K.V. Puttathimmegowda - Investigating
Officer, who further investigated the case has deposed that he has
been working from 20.7.1998 to 2000 as Circle Inspector of Arohalli
Circle and Thalghattapura Police Station was within his jurisdiction.
He had taken charge from P.W.13 on 21.7.1998. Accordingly,
further statements of C.Ws.9 to 13 and P.W.8 were recorded. On
22.7.1998, the car bearing registration No. KA 03 3652 used by the
accused for commission of offence was seized in front of
Thalghattapura Police Station as per Ex.P.2(c) and accused No.20 is
the owner of that car. He has received the wound certificates of
P.Ws.1 to 3 and deceased Narayana from the Deepak Nursing
Home as per Ex.P.11 and 14. Accordingly, he filed the split up
charge sheet on 7.8.1998 and on 18.2.1999, accused Nos.1 to 4
surrendered before the Court and he took them into custody on
23.2.1999. Thereafter, they were brought from the Central Jail to
Thalghattapura Police Station for recording their voluntary
statement and filed additional charge sheet in C.C.No. 222/1999.
In the cross-examination, he has admitted that case and counter
case have to be investigated by the same investigating officer and
has not explained how P.Ws.1 to 4 and accused Nos.2, 9 and
Sundar sustained injuries. He has denied the suggestion that he
has taken any case register from the Bangalore Hospital and has
sent the same to the doctor, who conducted the postmortem
examination. He has admitted that he has not enquired whether
deceased Narayana had taken treatment at Bangalore Hospital
during those four days. He has denied the suggestion that due to
negligence of the doctors at Bangalore Hospital, deceased Narayana
succumbed to the injuries. He has not enquired with the hospital
about the doctor, who treated the deceased Narayana or what was
the cause for his death. He has mentioned names of the doctors of
the Bangalore Hospital who had treated the deceased as witnesses
in the charge sheet. He has not produced any document from Raj
Nursing Home. Doctor Santhosh from Deepak Nursing Home was
not examined. He has further admitted the suggestion that iron rod
and club i.e., M.O.11 and 12 were not sent to Forensic Science
Laboratory and has denied the suggestion that P.W.8 giving the
statement that he had seen the accused persons in presence of the
car lights or street lights. The said material evidence of P.Ws.13
and 15 has not been considered by the learned Sessions Judge
while passing the impugned judgment of conviction and order of
sentence.
(x) P.W.17 - Chowdappa, the Assistant Sub-Inspector of
Police of Thalgattapura Police Station, who was the Station House
Officer, registered the case on 9.5.1998 as per the Ex.P.1 -
complaint and registered the FIR as per Ex.P.10. He has deposed
that he went along with Head Constable to the spot and as it was
night, he could not conduct the spot mahazar. Then he visited the
Victoria Hospital where the injured person was not in a position to
make statement. Therefore, he returned to the Police Station. On
the next day i.e., on 10.5.1998 at 11.00 a.m., he visited the spot
and recovered the material objects i.e., clubs and glass piece and
arrested accused No.13, 8, 6, 7 and 9 and recorded their
statement. He recorded the statements of C.W.5 and 6 in whose
presence the clubs and glass pieces were seized, but they were not
examined. He conducted enquiry from 9.5.1998 to 11.5.1998, but
not recorded the statement of any of the prosecution witnesses. In
the cross-examination, he has admitted the filing of counter case by
accused No.2 and further deposed that he did not record the
statement of the witnesses on the night of the incident. He has
denied the suggestion that after filing of the complaint by P.W.1, he
has not registered the same. He has further admitted that when he
visited the hospital, accused No.2 was taking treatment in the
Victoria hospital and his name was also mentioned in the Station
House Diary which was recorded on 9.5.1998 showing him as
accused No.2 and he does not know the reason why there is delay
in registering the case. He has further admitted that he was not
aware of lodging of complaint in Crime No.78/98 for the offences
punishable under Sections 341 and 307 r/w 34 IPC., on 9.5.1998 at
6.00 p.m., by the injured persons in the incident i.e., D. Francis and
Francis Kumar and the said matter written in the case diary from
9.5.1998 and 10.5.1998. He was not aware about D. Francis
Kumar sustaining severe injuries and sending him to the hospital
for treatment from the police station through memo. He has
admitted that Francis Kumar was arraigned as accused No.4 in the
present case. He has not conducted the enquiry since 11.5.1998
and even after knowing about filing of case and counters case -
Crime Nos.79/1998 and 80/1998, he has not conducted the enquiry
together. He has further deposed that he was not aware that on
9.5.1998 at about 10.30 when Pushparaj - accused No.2, David and
Sundar were going towards their houses from the Bus stand and
when they were in front of the house of P.W.1, P.Ws.1 to 3 and
their alliances i.e., Pushparaj, David and Sundar obstructed them
and committed assault on them. He has denied the suggestion that
in order to cover up the assault, on 10.5.1998, P.Ws.1 to 3 have
filed the present case. He further has admitted the suggestions
that for the first time on 11.5.1998, that names of accused No.13
Dayalu, accused No. 8 Chinnappa, accused No.6 Martin Raja,
accused No.7 Arogyaswamy and accused No.9 -David were arrayed
as accused persons in the remand application, he not recording the
statements of any of witnesses - P.Ws. 1 to 3 till 11.5.1998 and
also statement of P.W.5 that there was street light as per Ex.P.3.
He further deposed that Exs.P.11 to 14 are the wound certificates
issued by the Doctor Santhosh Kumar of Deepak Nursing Home,
who has not been examined. The said material evidence has not
been considered by the learned Sessions Judge before passing the
impugned judgment and order of conviction.
(xi) P.W.18 - Doctor Ravishankar has deposed that from
1993, he has been working as Consultant Surgeon in Deepak
Nursing Home. He knew Santhosh Kumar since he was working as
Casualty Consultant in the Nursing Home and he can identify his
handwriting and signature and accordingly, he has identified the
same at Exs.P.11 to 14 - wound certificates and signature found on
the said certificates as that of Santhosh Kumar. In 1998, Santhosh
Kumar left the Nursing Home and he was not aware where he went
and cannot be expected that he would not be available. He has
identified his signatures at Exs.P.11(a), P.12(a), 13(a) and 14(a).
In the cross-examination, he has admitted that on 10.5.1998, he
was on duty in the Deepak Nursing Home and has not produced any
document. He further deposed that as on the date of the incident,
i.e., 9.5.1998, Dr. Santhosh Kumar has worked only for one month.
He has admitted that as on 31.7.1998, Dr. Santhosh Kumar was
not working in the said Nursing Home; Police have not shown any
weapons in order to obtain his opinion; since the injured persons
had taken treatment before coming to Deepak Nursing Home, the
doctors in Casualty had no opportunity to see the fresh
injuries/wounds; and nature of the wound changes after some time
and after taking treatment; Further the cause of injuries sustained
as per Exs.P.11 to 14, are not due to hit by a round iron rod and
clubs; there is possibility of causing injury No.1 as mentioned in
Ex.P.11, if a person falls on the hard surface, and he is not in a
position to say by using which weapon, injury Nos.2 and 3 are
caused. He also admitted that as per Ex.P.13 - wound certificate,
there is no CT scan report with regard to injury No.3 and no X-ray
report for the fractures mentioned in Exs.P.11 and 14. He does not
know whether the injuries mention in Ex.P.11 is based on the
inquest report from the Police. He admits that according to the
Medical Manual, MLC Register should be maintained, but has denied
that Exs.P.11 to 14 are issued on the request of the Police and
direction of the Hospital Authority. In view of the categorical
admission made by P.W.18, who has not treated the injured
persons and who is the Consultant Surgeon of the Deepak Nursing
Home, who wanted to identify the wound certificates - Exs.P.11 to
14 issued by Dr. Santhosh dated 31.7.1998, that as on date, Dr.
Santhosh was not available in the hospital and was not working in
the hospital, clearly depicts that the wound certificates Exs.P.11 to
14 issued by Deepak Nursing Home is doubtful as Dr. Santhosh,
who had treated the injured and issued wound certificates, was not
examined. The said material aspects has not all been considered
by the learned Sessions Judge while passing the impugned
judgment and order of conviction.
(xii) D.W.1 - Dr. Ramajayaram, examined on behalf of the
defence has deposed that during the years 1995 to 1998, he had
worked as Deputy Chief Medical Officer in the Victoria Hospital.
When he was working as Casualty Medical Officer in the night shift
between 8.00 p.m. to 8.00 a.m. on 9th and 10th of May, 1998, at
about 1.25 a.m., he examined a patient by name David (accused-9)
from Kamanahalli village, who had come with a history of assault
on him on 9.5.1998 at 10.00 p.m. by a group of persons by name
Thimmaiah, Hombalaiah, Narayana and Chikkavenkata (P.W.1 to 3
and deceased) and his son with knife, stone and wooden rod at
Somanahalli. He was conscious but restless and had sustained the
following injuries:
i) a contusion with hemotoma over the dorsal aspect of left
thigh about 8 inches x 6 inches, skin bluish in colour;
ii) a contusion with hemotoma over the left infra scapula
region of size 6 inches x 6 inches, skin bluish in colour and
tenderness;
and he referred the said injured to the surgical ward for further
treatment and the injured person was accompanied by the Police
Constable Buckle No.791 of Thalghattapura Police Station. The
accident register is marked as Ex.D.28. He has further opined that
contusion could be caused due to assault with club. He further
deposed on 10.5.1998 at about 1.35 a.m., he examined one patient
by name Pushparaju - accused No.2 from Kamanahalli with history
of assault on him on 9.5.1998 at 10.00 p.m. by a group of persons
by name Thimmaiah, Humbalaiah, Narayana (deceased)
Chikkavenkata and his son (P.W.1 to 3) with knife, stone and
wooden rod at Somanahalli. He was conscious but restless and had
sustained the following injuries:
i) A sutured wound over the right parital region of size about
2 inches in length and fresh;
ii) A sutured wound over the left occipital region of size about
2 inches in length and fresh;
iii) A sutured wound over the dorsal aspect of left shoulder
joint vertically of size about 3 inches in length and fresh;
iv) A lacerated wound over the dorsal aspect of left fore arm
of size 1 inches x ¼ inch x skin deep fresh;
v) Contusion with hematoma of both lips defused skin bluish
in colour;
He referred the said patient for surgical ward for further treatment,
who was accompanied by the Police Constable Buckle No.791 of
Thalghattapura Police Station. He had brought a Xerox copy of the
accident register marked as Ex.D.29. He has further opined that
injuries 1 and 2 stated supra would be caused by assault with
chopper and injury Nos.3 to 5 could be caused as a result of assault
with club and stones. With regard to nature of injuries, he has
deposed that injury No.1, 3 and 5 were simple, but regarding
Injury No.4, opinion had to be obtained from the Orthopedic
Surgeon. He had also issued would certificate Ex.D.30 and further
on the back side of Ex.D.30, Orthopedic Surgeon has opined that,
injury No.4 as grievous in nature.
(xiii) D.W.1 further has deposed that he also examined
Sundar Raj (accused No.5) of Kamanahalli village, who was brought
by the Police Constable with the history of assault and he was found
with the following injuries:
i) A lacerated wound over the right post
auricular region of size 2 ½ inches by 1
inch bone deep;
ii) Contusion with hematoma over the right
shoulder joint defused skin bluish in
colour and tenderness present;
Further the patient was also referred to surgical ward for further
treatment. He entered the same in the accident register as per
Ex.D.31 and his signature was marked as Ex.D.31(a). The cause of
Injury No.1 could be of blunt edge chopper, injury No.2 by assault
with club and both the injuries were simple in nature. He has
further deposed that accused - Pushparaj (accused No.2) was
examined by the witness with reference to the wound marks found
on the head, shoulder and left forearm and that the injuries
mentioned in the above referred certificate were corresponding. In
his cross-examination, he has deposed that Ex.P.1 the complaint
cannot be treated as the first information regarding a case. He has
denied the suggestion that injury Nos.1 to 5 mentioned in Ex.P.29
may be caused, if a person falls on the hard surface and admits
that injuries shown in Ex.P.31 may be caused, if a person comes in
contact with an hard object. D.W.1 has further deposed that One
Narayana s/o Venkategowda of Somanahalli Village was brought to
the hospital at 1.45 a.m. on 10.5.1998 with a history of assault.
The injuries found at the time of his examination are noted in the
accident register, marked as Ex.D.33 and his signature is marked
as Ex.D.33(e). Though nothing has been elicited in his cross-
examination to disbelieve his evidence, the learned Sessions Judge
has not considered the said material evidence on record before
passing the impugned judgment of conviction and order of
sentence.
34. It is relevant to note that there are so many
inconsistencies in the evidence of the prosecution witnesses. First
of all it is an admitted fact that there is a delay of 21 hours in
registering the complaint for which there is no explanation offered
by the prosecution and on the same incident, two complaints were
lodged by the parties, both FIRs., are one sided and are not
disclosing the real truth. If only one investigating officer had
conducted the investigation on the complaints lodged by two groups
for the same incident, the truth would have been revealed.
Unfortunately both the complaints are lodged on the same day at
the same time, but two investigating officers have conducted the
investigation separately and in one case, 'B' report and in another
final report is filed. P.Ws.1 and 17 have admitted in their evidence
that there is a delay in lodging the complaint. Secondly, the
admission made by the investigating officers clearly depict that the
investigation is tainted from the beginning till completion of the
evidence. The oral and documentary evidence on record do not
show beyond all reasonable doubt the identity of persons, who
assaulted the deceased and the same is not established by cogent
evidence though the Consultant Surgeon of Deepak Nursing Home,
who has issued the wound certificates - Exs.P.11 and 14 has not
treated the patients including the deceased, but as admitted by
him, they were examined by the Doctor Santhosh, who has not
been examined as a witness in this case. The hospital where the
injured persons had taken treatment has not sent the register of
the medico legal case. The deceased has died after five days from
the date of admission to the hospital and cause of death was due to
respiratory failure as a result of complication of injuries as can be
seen from the opinion of the doctor in Ex.P.5 - postmortem report
and it does not amount to murder. Dr. Anand K., P.W.11, the
Professor and Head of the Department of Forensic Medicine,
Kempegowda Institute of Medical Sciences, who conducted the
postmortem examination on the deceased has opined that all the
injuries sustained by the deceased were almost healed. He has
further deposed that except injury Nos.1 and 12, all other injuries
were attended non-surgically, but were only treated. Injury Nos.1
and 12 were also not surgically attended. Before issuing the
postmortem report, he had secured the treatment extract from the
Bangalore Hospital. As per the case sheet about 12 to 14 patients
were under respiratory problem. He voluntaries that respiratory
failure was due to the injuries caused to the ribs and lungs and he
is not in a position to say what was the cause for the complication.
As per Ex.P.5 - postmortem report and Ex.P.11 - the Wound
Certificate, two days and five days are contrary to the death memo
dated 15.5.1998 issued by the Bangalore Hospital Ex.P.8. All these
material aspects have not been considered by the learned Sessions
Judge while passing the impugned judgment of conviction and order
of sentence.
35. As per the Police Manual, two investigating officers are
not permissible to conduct the investigation in case and in cross
case (counter case) out of the same incident in view of the
provision - 1179 of the Karnataka Police Manual, which reads as
under:
"1719. (1) In a factious rioting, a Police officer
should not content himself with laying charge
sheets against both the contending parties,
making the prosecution witnesses in one case
the accused in the other and vice versa, and
put forward the inversions to the court
without any attempt at finding out the truth.
If complaints of the offence of rioting containing
two divergent versions are given by the parties, it
is the duty of the investigating Officer to find out
which case is true and charge it. The easier
course of referring both the case and the counter
case as unbeatable should not be adopted. An
impartial efficient and painstaking investigation
should invariably disclose the true facts of
any occurrence. The laying of charge sheets
in both the case and the counter case should
be resorted to only in exceptional cases or
where, as stated below, both the parties are
guilty of aggression and lawless acts.
2. The principles set forth above apply mutatis
nutandis to all tension and clashes between
parties, whether they be due to faction or
communal or political differences. In such cases,
the police should remain completely neutral, but
that does not mean that they should not make a
distinction between the aggressors and the
victims. When a group takes the law into its
hands with a view to imposing its will or
programme upon those opposed to it, the latter
have a right conferred upon them by law to act in
defence of their lives and properties. Whenever
trouble occurs or is anticipated between two
parties, the police should distinguish between the
aggressor and the victim in the matter of action
under preventive or specific sections of law, the
leaders of both the parties being charged in
specific cases or put up under security sections
only where there is evidence to show that both
the parties have been committing aggression.
Where one party has been forced to act in self-
defence, only the aggressive party should
ordinarily be proceeded against."
36. It is the duty of the investigating officer to find out,
which case is true and file the charge sheet. Admittedly, in the
present case, out of the same incident, two complaints are lodged
on the same day at the same time, but unfortunately, two separate
investigating officers have conducted the investigation and filed the
charge sheets, which is contrary to law. Our view is fortified by the
dictum of the Full Bench decision of this Court in the case of State
of Karnataka by Circle Inspector of Police -vs- Hosakeri
Ningappa and Another reported in ILR 2012 kar. 509 wherein
it has been held that the procedure to be adopted in case and
counter case is that the investigation should be conducted by the
same Investigating Officer and the prosecution should be conducted
by two different Public Prosecutors. The trial should be conducted
by the same Court. After recording the evidence and after hearing
the arguments, the judgment should be reserved in one case and
thereafter, the evidence should be recorded and the arguments
should be heard in the other case. It is needless to observe that
the arguments in both the matters shall be heard by the same
Learned Judge. The judgments should be pronounced by the same
Judge simultaneously i.e., one after the other. In deciding each
case, the Trial Judge can only rely on the evidence recorded in that
particular case and the evidence recorded in the cross case (or
counter case) cannot be looked into. The Judge shall not be
influenced by the evidence or arguments in the cross case.
Paragraphs-5 to 8 of the said judgment read as under:
"5. Case and counter case (cross cases) are, for
all purposes different or conflicting versions of
one incident. Reading of the aforementioned
judgments makes clear that, in order to avert the
danger of an accused being convicted before his
whole case is before the Court and in order to
deter conflicting judgments being delivered upon
similar facts, the consistent and salubrious
practice adopted by the Courts in India right from
1929 is that the cross cases shall be tried
simultaneously by the same Judge. After
recording evidence and after hearing the
arguments, the Judgment should be reserved in
one case and thereafter the evidence should be
recorded and the arguments shall be heard in
another case. Arguments in both the cases shall
be heard by the same Judge. The judgments
should be pronounced by the same Judge one
after another. It is also settled position in law as
laid down by the Supreme Court in the
aforementioned judgments that in deciding the
case and the counter case, the Trial Judge can
only rely on the evidence recorded in that
particular case and the evidence recorded in the
cross case cannot be looked into, nor can the
Judge be influenced by the arguments in the cross
case. Each case must be decided on the basis of
the evidence which has been placed on record in
that particular case without being influenced in
any manner by the evidence and the arguments
in the cross case.
6. It is also relevant to note that the investigation
is to be conducted by the same Investigating
Officer and the prosecution should be conducted
by two different Public Prosecutors. The
Government of Karnataka has issued the law
Circular dated 24.9.1982 bearing No. 4836 and
the law Circular dated 12.11.1982 bearing No.
4839, stipulating that the same Investigation
Officer shall investigate case and counter case.
7. However, the Division Bench of this Court in
Abdul Majid Sab v. State of Karnataka by
Ripponpete Police (Supra) has observed thus:
"Para-27: It is well-settled principle
in a case and a counter the same
I.O. should investigate both the
cases and should file final report.
The different prosecutors should
conduct prosecution, the same
Judge should try the cases
simultaneously and render separate
judgments. It is a judicial dicta that
the Court should not read/get
influenced by the evidence recorded
in the other case, unless the said
material in the other case is marked
as an evidence in the case in
question. To say that the Court
should not read/influenced by the
evidence recorded in the other case
under all circumstances would be a
perverse view and runs counter to
the logic of holding simultaneous
investigation by the same I.O. and
trial by the same Judge. Otherwise,
it is impossible for the Judge to
appreciate the guilt of the accused
to find out whether both are
aggressors and both are guilty of
indulging in free fight or one of them
is an aggressor and the other caused
injuries on the accused in exercise of
right of private defence."
(Emphasis supplied by us)
The aforementioned observations made by the
Division Bench in the case of Abdul Majid Sab, in
our considered opinion, run contrary to the dictum
laid down by the Supreme Court in various
judgments cited supra, including the cases of
Nathi Lal v. State of U.P. (Supra), Sudhir v. State
of M.P. (Supra), Mittulal v. The State of M.P.
(Supra) and Kuldip Yadav v. State of Bihar
(Supra).
There is no statute governing the procedure to be
adopted in case and counter case or cross cases.
However, the Supreme Court has laid down the
procedure for trial in such matters. The
Legislature ought to remedy the defect by
enacting the procedure in that regard. However,
the Judge made law relating to procedure
mentioned supra is being followed since 1929 till
this day. The law declared by the Supreme Court
binds all the Courts in India under Article 141 of
the Constitution of India. Hence, the observations
made by the Division Bench in the case of Abdul
Majid Sab (quoted supra) do not lay down good
law on the point, inasmuch as, the observations
run contrary to the well established principles of
law as laid down by the Supreme Court from time
to time.
8. The Supreme Court has described the
procedure and practice of simultaneous trial of
case and counter case as "fair procedure",
"salubrious practice", "salutary practice",
"generally recognised rule", "proper procedure to
adopt" etc., in various judgments. The procedure
to be adopted by the Courts while dealing with
the case and counter case is the Judge made
procedure and not a statutory procedure. The
question, however, is whether the wrong
procedure adopted by the Learned Trial Judge
vitiates the trial, irrespective of the fact whether
prejudice has been caused to the accused or not."
37. Admittedly, in the present case as already stated supra,
two investigating officers have conducted the investigation on the
two complaints lodged separately on the same incident though two
different public prosecutors have conducted the prosecution. The
trial was conducted by the same Court in the case and counter case
and proceeded to rely on the evidence adduced by the parties. If
the case and counter case are not tried simultaneously , the
proceedings ipso facto do not get vitiated as contended by the
learned State Public Prosecution. But where the irregular procedure
adopted by the trial Court has caused prejudice to the accused and
has occasioned failure of justice, the proceeding and the trial
vitiates. Otherwise, the proceedings are protected under Section
465 of the Code of Criminal Procedure. In the present case, the
complaint made by accused No. 2 Pushparaj ended in a 'B' report
filed by the investigating officer and the same was protested and
was filed under Section 200 Cr.P.C. and subsequently, it was
registered as a criminal case, committed to the Sessions Court and
it was numbered as S.C.No.56/1998. It was tried by the same
learned Judge. Therefore, the case filed by P.Ws.2 to 6 is treated
as cross case (counter case) and the learned Judge shall have to
consider each case independently without being influenced by the
admissions or omissions of other case as held by the Full Bench of
this Court stated supra. As such, the learned Sessions Judge while
passing the impugned judgment of conviction and order of sentence
has not considered the said procedural aspects.
38. At this stage, it is also relevant to consider the provisions
of Section 149 of the Indian Penal Code - unlawful assembly. The
basic element of constituting an unlawful assembly is the number of
persons composing the assembly which should not be less than five
persons. It is the duty of the police officer while investigating a
case and a counter-case to investigate both the cases as provided
under Chapter - XII of the Code of Criminal Procedure and after
completing the investigation, assess the material collected to find
out whether on the material collected, there is a case to place the
accused before a Magistrate for trial, and if so, take the necessary
steps for the same, by filing a charge- sheet under Section 173 of
the Code of Criminal Procedure. There may be a case where it may
happen that each party has committed the offence and that each
party has overstepped the bounds of law and if the investigating
officer on the assessment of the evidence reach such a conclusion,
it is perfectly open to him to place charge sheet in both cases as
there would be nothing incompatible in them. But, on the other
hand, if the investigation reveals that if one case is true, the other
must necessarily be false, then the police should file charge sheet in
the case in which the investigation disclosed a case to place the
accused before the Magistrate for trial and refer the other case to
leave the aggrieved party to pursue the matter by him. Our view is
fortified by the dictum of the Co-ordinate Bench of this Court in the
case of The State of Karnataka -vs- Balappa Bhau Vadagave
and Others reported in ILR 1984 Kar. 21 wherein at
paragraphs-70 to 72, 74 and 75, it is held as under:
" 70. A careful reading of all these rulings would
reveal that it is the duty of the police while
investigating a case and a counter-case to
investigate both the cases as provided under
Chapter XII of the Code and after completing the
investigation assess the material collected to find
out whether on the material collected, there is a
case to place the accused before a Magistrate for
trial and if so, take the necessary steps for the
same, by filing a charge-sheet under Section 173
Cr. P.C. There may be a case where it may
happen that each party has committed the
offence and that each party has over-stepped the
bounds of law and if the investigating officer on
the assessment of the evidence reach such a
conclusion, it is perfectly open to him to place
charge-sheet in both the cases as there would be
nothing incompatible in them. But on the other
hand, if the investigation reveals that if one case
is true, the other must necessarily be false, then
the police should file charge-sheet in the case in
which the investigation disclosed a case to place
the accused before the Magistrate for trial and
refer the other case to leave the aggrieved party
to pursue the matter by him. Judicial verdict is
consistent in deprecating the conduct of the police
in placing charge sheets in both the case and the
counter-case, which are contradictory, in the
sense, that if one is true, the other must
necessarily be false, solely with a view to shirk
their responsibility, being afraid of the possibility
or probability of imputing partiality and for
evading the same, filing charge-sheets in both the
cases to appease both the parties leaving the
matter to be decided by the court. In none of
these rulings, investigation of the case and the
counter-case by different officers is either
indicated or suggested.
71. In the instant case, undoubtedly there was
complaint by the deceased Kallappa's party and
counter-complaint by the accused-party in respect
of the same incident out of which two crimes had
been registered and investigated by two different
officers and after completing the investigation
both the cases resulted in placing of charge-
sheets against the accused-party in this case and
the deceased party in the counter-case. It is in
the evidence of P.W. 19 that he recorded the oral
complaint of A1 Balappa as per Ex. P. 29 in the
course of the investigation of the crime registered
on the complaint of P.W. 1 Kumar and handed it
over to the S.H.O. Sadalaga to register a case and
investigate. He also sent the injured accused to
Sadalaga Medical Officer for further treatment. He
has not investigated the truth or otherwise of the
accused version of the incident as put-forth by A1
in his complaint, nor his evidence would show that
he conducted the investigation in this case and
verified the material collected, in the light of the
accused version and in particular about the
injuries caused to them in the same incident. He
has merely stated that he received the injury
certificate of the accused from the Medical Officer,
Dattawad and after completing the investigation
of the crime registered on the complaint of P.W.
1, he placed the charge-sheet against all the five
accused in this case on 23-3-1981 citing deceased
Kallappa's party as the prosecution witnesses.
72. As regards the counter case, obviously arising
out of the complaint Ex. P. 29 of A1, there is a
mere reference by the trial court in the course of
the judgment while dealing with the injuries
sustained by A1 to A3 that the defence itself had
explained the injuries sustained by the accused as
it had to, so explain because of the peculiar
defence taken in the counter-case, obviously by
the prosecution witnesses in this case who were
the accused in the counter-case. Thus it would
appear that the case and the counter case arising
out of the same incident in the instant case were
investigated by two officers, independent of each
other, each of whom after completing the
investigation placed the charge-sheet in the
respective cases, obviously with the dressed-up
investigation, without verifying the truth or
otherwise of the two versions of the same incident
given by the deceased-party as well as the
accused party and collected material in each of
the cases in such a way to make out a case
against the accused in each case so as to place
both of them before the court for trial as if the
case and the counter-case are two independent
crimes although arising out of the same incident.
74. The question is whether this circular which
was obviously based on the ruling of this court in
Gooti Sannaiah's case (1976 (1) Kar. L.J. 10) is
based on the correct understanding of the legal
position enunciated in the said decision. We have
already referred to the legal position enunciated
in the said decision and we are unable to find any
support for the instructions issued to the police
for conducting investigation by different officers in
the case and the counter-case arising out of the
same incident and placing final report after
completing the investigation independent of each
other by following the procedure contained in the
circular instructions. In Gooti Sannaiah's case
(1976 (1) Kar. L.J. 10), all that was emphasized
by a Bench of this Court was the undesirability of
placing charge-sheets in both the case and the
counter-case by the same police of which, if one
is true, the other is essentially false and
prosecuting such contradictory cases one after
another by the same prosecutor. This legal
position as we found earlier, was enunciated as
early as by the erstwhile High Court of Mysore in
Gundi Giriyappa's case (18 Mys. L.J. 229). The
same view was taken by the Madras High Court in
Ramakrishnaiah's case (AIR 1954 Madras 442).
The ratio of the Full Bench decision of the Kerala
High Court in Augustine's case (1982 Cr. L.J.
1557) also falls in line with the ratio of the above
decisions. Neither we find any support for the
proposition that separate investigating officers
should investigate the case and the counter-case
arising out of the same incident in any of the
decided case, much less in the decision of this
Court in Gooti Sannaiah's case (1976 (1) Kar. L.J.
10), nor under any of the provisions of the Code.
There cannot be any two opinions that the case
and the counter case arising out of the same
incident though registered in separate crime
numbers, are not two independent cases but two
versions of the same incident. For the purpose of
investigation, both the complaint and the counter-
complaint are registered separately but the truth
or otherwise of the complaint and the counter-
complaint shall have to be verified by the same
investigating officer, investigating both the crimes
impartially and diligently and after completing the
investigation, assess the material collected in both
the crimes, form an opinion as to which of the
persons in the complaint or the-counter-
complaint, as the case may be, have committed
the offence and place the charge-sheet against
such persons and refer the case in which he found
no offence is made out, so that the concerned
party may prosecute his complaint in a court of
law. However, we may emphasize that in
appropriate cases, though such cases seldom
occur, the investigating officer may file charge-
sheets against both the parties as illustrated in
Gundi Giriyappa's case (18 Mys. L.J. 229) to
which a reference has been made earlier.
75. It is unfortunate that neither the Directorate
of Prosecution which is in-charge of the conduct of
the prosecution in the subordinate courts nor the
State Public Prosecutor, who is representing the
State in Criminal Cases at the High Court level,
has so far perceived in these long seven years
and taken any step to set right the wholly wrong
and erroneous mode of conducting investigation
in case and counter-case arising out of the same
incident by different investigating officers,
independent of each other and filing reports under
Section 173 of the Code based upon the Law
Section Circular No. 3989 dated 7-5-1977
referred supra for which we do not find any
sanction or approval by any of the provisions of
the code. We feel wonder how many roting cases
involving case and counter-case ended in
miscarriage of justice due to this mode of
investigation by the police. We look askance at
the slackness on the part of the aforesaid
agencies and also the wisdom of the authority
responsible for the Law Circular which introduced
the novel investigation in this State."
39. In view of the fact that as per Ex.P.1, the first complaint
lodged by P.W.1 on 9.5.1998 registered at 10.30 p.m., the names
of accused Nos.1, 13 and 14 and others were included in the FIR.
The same was registered on 9.5.1998 at 23.45 hours as per
Ex.P.10 and received by the JMFC at 9.00 p.m. on 10.5.1998.
There is delay of 21 hours. The second complaint Ex.D.2 depicts
that the incident occurred on 9.5.1998 at 10.30 p.m. and it was
registered on 10.5.1998 at 12.15 a.m. The FIR with regard to first
complaint was for the offences punishable under Sections 147, 448,
447, 323, 307, 341, 302 r/w 149 of IPC and for the second
complaint except offence under Section 302 of IPC., all the offences
are common as that of the first complaint. Both the complaints are
received by the JMFC on 10.5.1998. It has to be kept in mind that
there are two separate complaints lodged for the same incident, on
the same day, at same time and in the same police station. As per
Ex.P.11, the wound certificate dated 31.7.1998 issued by the
Deepak Nursing Home, the deceased Narayana Murthy was treated
in the hospital on 10.5.1998 as in-patient for the injuries sustained
by him due to alleged incident and was discharged on 12.5.1998
after two days. Injury Nos.10, 11 and 12 are grievous as per
Ex.D.10 issued by the Doctor S. Lingaraj of Raj Nursing Home.
40. Admittedly, the Doctor Santhosh, who treated the
deceased Narayana Murthy has not been examined as admitted by
the Investigating Officer as well as P.W.18. Ex.D.10 - the wound
certificate dated 16.3.1999 issued by Doctor S. Lingaraj of Raj
Nursing Home clearly depicts that Narayana Murthy (deceased
Narayana) was admitted to the hospital on 9.5.1998 at 7.00 p.m.
with three injuries i.e., i) Swelling and tenderness on right eye; ii)
blunt injury on left chest; and iii) blunt injury on left thigh; and has
opined that injuries (i), (ii) and (iii) were simple in nature. Even
the said doctor is also not examined by the prosecution. Ex.P.5 -
the Postmortem report issued by the Doctor K. Ananda, Professor
and Head of the Department of Forensic Medicine has opined that
the death was due to respiratory failure as a result of "complication
of injuries sustained"; the date of death was on 15.5.1998 and the
deceased was in the hospital for more than 10 days. In view of
inconsistency in the wound certificate issued by the doctors and the
postmortem report, serious doubt is created about involvement of
the accused persons in the homicidal death of the deceased as
alleged by the prosecution.
41. On careful reading of the evidence of the investigating
officers and Ex.P.5 - the postmortem report, Ex.D.10 - the wound
certificate and Ex.P.11 - another wound certificate, two views are
possible. "It is well settled that there is no embargo on the
Appellate Court reviewing the evidence upon which an order of
conviction is based. The golden thread which runs through the web
of administration of justice in criminal cases is that, if two views are
possible on the evidence adduced in the case, one pointing to the
guilt of the accused and the other to his innocence, the view which
is favourable to the accused should be adopted. The paramount
consideration of the Court is to ensure that miscarriage of justice is
prevented. A miscarriage of justice which may arise from acquittal
of the guilty is no less than from the conviction of an innocent."
The said aspect also has not been considered by the learned
Sessions Judge and as such, the impugned judgment and order of
conviction cannot be sustained.
42. The case/counter case/cross case has been considered
by the Hon'ble Supreme Court in the case of Sudhir and Others -
vs- State of M.P. and Others reported in (2001)2 SCC 688
wherein at paragraphs-8, 9 and 10 has held as under:
"8. It is a salutary practice, when two criminal
cases relate to the same incident, they are tried
and disposed of by the same court by
pronouncing judgments on the same day. Such
two different versions of the same incident
resulting in two criminal cases are compendiously
called "case and counter-case" by some High
Courts and "cross-cases" by some other High
Courts. Way back in the nineteen hundred and
twenties a Division Bench of the Madras High
Court (Waller and Cornish, JJ.) made a suggestion
(Goriparthi Krishtamma, In re [1929 MWN 881]
that "a case and counter-case arising out of the
same affair should always, if practicable, be tried
by the same court; and each party would
represent themselves as having been the innocent
victims of the aggression of the other".
9. Close to its heels Jackson, J., made an
exhortation to the then legislature to provide a
mechanism as a statutory provision for trial of
both cases by the same court (vide Krishna
Pannadi v. Emperor [AIR 1930 Mad 190 : 31 Cri
LJ 461] ). The learned Judge said thus:
"There is no clear law as regards the
procedure in counter-cases, a defect
which the legislature ought to
remedy. It is a generally recognized
rule that such cases should be tried in
quick succession by the same Judge,
who should not pronounce judgment
till the hearing of both cases is
finished."
10. We are unable to understand why the
legislature is still parrying to incorporate such a
salubrious practice as a statutory requirement in
the Code. The practical reasons for adopting a
procedure that such cross-cases shall be tried by
the same court, can be summarised thus: (1) It
staves off the danger of an accused being
convicted before his whole case is before the
court. (2) It deters conflicting judgments being
delivered upon similar facts. (3) In reality the
case and the counter-case are, to all intents and
purposes, different or conflicting versions of one
incident".
43. The Hon'ble Supreme Court while considering the
procedure to be followed by the trial Court in cross cases in the
case of Nathi Lal and Others -vs- State of U.P. and Another
reported in 1990 (Supp) SCC 145 at paragraph-2 has held as
under:
"2. We think that the fair procedure to adopt in a
matter like the present where there are cross
cases, is to direct that the same learned Judge
must try both the cross cases one after the other.
After the recording of evidence in one case is
completed, he must hear the arguments but he
must reserve the judgment. Thereafter he must
proceed to hear the cross case and after recording
all the evidence he must hear the arguments but
reserve the judgment in that case. The same
learned Judge must thereafter dispose of the
matters by two separate judgments. In deciding
each of the cases, he can rely only on the
evidence recorded in that particular case. The
evidence recorded in the cross case cannot be
looked into. Nor can the judge be influenced by
whatever is argued in the cross case. Each case
must be decided on the basis of the evidence
which has been placed on record in that particular
case without being influenced in any manner by
the evidence or arguments urged in the cross
case. But both the judgments must be
pronounced by the same learned Judge one after
the other."
44. The prosecution witnesses - P.Ws.1 to 5 and 8 have
clearly admitted in the cross-examination that they were unable to
identify particular accused persons, who were involved in the
homicidal death of the deceased, which is a serious draw back in
the case of the prosecution as held by the Hon'ble Supreme Court
in the case of Balbir -vs- Vazir and Others reported in (2014)
12 SCC 670 wherein at paragraph-30, it is held as under:
"30. Another significant aspect of this case is the
absence of identification parade. Persons who
were named in the FIR and others, who had
witnessed the incident at different stages did not
know all the assailants but they claimed that they
could identify the assailants. But the prosecution
failed to hold test identification parade. It is
argued that identification made in court is
sufficient. Reliance is placed on Malkhansingh
[Malkhansingh v. State of M.P., (2003) 5 SCC
746: 2003 SCC (Cri) 1247] wherein this Court has
held that substantive evidence is the evidence of
identification in court. The test identification
parade provides corroboration to the identification
of the witness in court if required and what weight
must be attached to the evidence of identification
in court, is a matter for the court of fact to
examine. There can be no dispute about this
proposition. But in Malkhansingh [Malkhansingh v.
State of M.P., (2003) 5 SCC 746 : 2003 SCC (Cri)
1247] this Court was dealing with a case of gang
rape. This Court noted that courts below had
concurrently found the evidence of prosecutrix to
be implicitly reliable. This Court noted that the
appellants raped the prosecutrix one after
another. She was threatened and intimidated. All
this must have taken time. This Court noted that
it was not a case where the identifying witness
had only a fleeting glimpse of the appellants. The
prosecutrix had a reason to remember the faces
of the appellants as they had committed a
heinous offence and put her to shame. She had
abundant opportunity to note the appellants
features and due to the traumatic experience the
faces of the appellants must have been imprinted
in her memory and there was no chance of her
making a mistake about their identity. The
observations of this Court will have to be read
against the backdrop of these facts. Facts of this
case are different. The incident does not seem to
have lasted for a long time. The eyewitnesses
were sitting outside the Satsang hall. It cannot be
said that they had sufficient opportunity to see
the faces of the accused who were on the run. In
such a case failure to hold identification parade is
a serious drawback in the prosecution case."
(emphasis supplied)
45. Considering the provisions of Section 96 of the Indian
Penal Code with regard to failure to explain the injuries on the
accused, the Hon'ble Supreme Court in the case of Rehmat -vs-
State of Haryana reported in (1996) 10 SCC 346 wherein at
paragraph-10 it is held as under:
"10. There is also another aspect which goes in
favour of the appellant. Admittedly Padam Singh
(PW 4) along with Vijay Singh had first gone to
the Primary Health Centre for medical help but he
did not disclose the name of the assailant to the
doctor. Ordinarily, in a medico-legal case, the
doctor is supposed to write down the history of
the injured but admittedly in this case, medical
papers of Padam Singh (PW 4) do not indicate the
name of the assailant. The names were disclosed
only at the time when the complaint was recorded
by SI Narain Singh at about 9.00 p.m. which was
treated as a formal FIR. The learned counsel for
the appellant, therefore, rightly urged that the
appellant was later on implicated in the present
crime at the instance of the complainant and his
friends. It may also be stated that the prosecution
case even otherwise appears to us improbable
because Padam Singh (PW 4) claims to have got
up early in the morning and seen the appellant
running from the side of his room at about 3.30
a.m. In these circumstances, it is not possible to
sustain the conviction of the appellant under
Sections 307/393 of the Penal Code, 1860."
46. In the case on hand, the oral and documentary
evidence on record depicts that the accused are not identified, as
according to the complaint, there were 22 to 30 persons, who had
formed an unlawful assembly to commit the assault on P.Ws.1 to 3
and deceased Narayana. In the absence of any identity invoking
the provisions of Section 149 of IPC., is bad in law. Our view is
fortified by the dictum of the Hon'ble Supreme Court in the case of
Musakhan and Other -vs- State of Maharashtra reported in
AIR 1976 SC 2566 wherein at paragraph-5, it is held as under:
"5. The appellants pleaded innocence and averred
that they had been falsely implicated due to enmity
and had not participated in the riot. Both the courts
below have accepted the main facts leading to the
occurrence as also participation of the appellants in
the rioting. The Additional Sessions Judge as also the
High Court, however, do not appear to have made a
correct approach in examining the individual cases of
the accused, particularly with reference to their
actual presence or participation in the incident in
question. It is true that having regard to the
background against which the events took place all
the incidents starting from the National Hotel and
ending with the chawl of Jogendra Singh were parts
of the same transaction, nevertheless they were
separate incidents in which different members of the
mob had participated. In these circumstances,
therefore, without there being any direct evidence
about the actual participation of the appellants in all
the incidents it could not be inferred as a matter of
law that once the appellants were members of the
mob at the National Hotel they must be deemed to
have participated in all the other incidents at the
Engineering College Hostel, Bharat Lodge and the
chawl of Jogendra Singh. It is well settled that a
mere innocent presence in an assembly of persons,
as for example a bystander, does not make the
accused a member of an unlawful assembly, unless it
is shown by direct or circumstantial evidence that
the accused shared the common object of the
assembly. Thus a court is not entitled to presume
that any and every person who is proved to have
been present near a riotous mob at any time or to
have joined or left it at any stage during its activities
is in law guilty of every act committed by it from the
beginning to the end, or that each member of such a
crowd must from the beginning have anticipated and
contemplated the nature of the illegal activities in
which the assembly would subsequently indulge. In
other words, it must be proved in each case that the
person concerned was not only a member of the
unlawful assembly at some stage, but at all the
crucial stages and shared the common object of the
assembly at all these stages. Such an evidence is
wholly lacking in this case where the evidence
merely shows that some of the accused were
members of the unlawful assembly at one particular
stage but not at another. In these circumstances,
therefore, the accused who were not present or who
did not share the common object of the unlawful
assembly at other stages cannot be convicted for the
activities of the assembly at those stages. In view of
this error committed by the High Court it has
become necessary for us to examine the evidence on
the limited question as to which of the accused had
actually participated in the incidents at the
Engineering College, Bharat Lodge and the chawl of
Jogendra Singh where acts of incendiarism had taken
place. It is also common ground that the occurrence
had taken place at night and the evidence of the
witnesses identifying the accused had to be
examined with great caution."
47. The inconsistent evidence of the prosecution witnesses
about the assault and non-identification of the particular accused,
who were involved in the homicidal death of the deceased and in
view of the inconsistency in the medical certificates (wound
certificates) issued by different hospitals as per Exs.D.10, Ex.P.11
Ex.P.5-the postmortem report and the absence of examination of
the doctors to prove the said injuries, no reliance can be placed on
the prosecution witnesses and the documents relied upon. Our
view is fortified by the dictum of the Hon'ble Supreme Court in the
case of State of Rajasthan -vs- Rejendra Singh reported in
AIR 1998 SC 2554 wherein at paragraphs-7 and 8 it is held as
under:
"7. It was submitted by the learned counsel for
the State that as many as six witnesses were
found injured and that would establish their
presence at the place of the incident. In our
opinion, this contention is of no help to the
appellant because their evidence has not been
discarded on the ground that they were not
present. Their evidence was discarded because
they were found not telling the truth before the
Court. It was also submitted by the learned
counsel that the evidence of PWs 1 to 4 stood
corroborated by two independent witnesses,
namely Ramjilal and Jeevan Singh. PW 8 Ramjilal
had stated that he had gone to the spot on
hearing the sound of a gunshot and tried to
snatch away the gun from the respondent. But he
was contradicted by his police statement wherein
he had not stated anything regarding snatching of
the gun. This omission on such a vital point has to
be regarded as a contradiction and it creates a
serious doubt about the truthfulness of his
version. PW 9 Jeevan Singh had stated that he
had also rushed to the spot on hearing the sound
of a gunshot. He further stated that he had made
an attempt to save Harveer and in doing so, he
had received an injury. He had not so stated
before the police. This also shows that this
witness had made a material improvement before
the Court in order to make his evidence
acceptable.
8. All the witnesses had categorically stated that
they had not beaten the respondent and seen any
injury on the accused. But the evidence
establishes that the respondent had two contused
lacerated wounds: one on his face and one on his
head. The injuries were bleeding injuries and
visible and yet the witnesses stated that they had
not seen any injury on the person of the
respondent. That would mean that neither the
family members of Harveer nor the two
independent witnesses were willing to give a true
version and had tried to suppress the part played
by some of them which had resulted in causing
injuries to the respondent. The High Court was
therefore, justified in not placing reliance on their
evidence."
48. Admittedly, there is a delay in lodging the first
information report which was prepared after reaching the spot and
after due deliberation, consultation and discussions. As such, it
cannot be treated as FIR as it certainly would be a statement made
during the investigation of a case and hit by Section 162 of the
Code of Criminal Procedure. Consequently, it would be unsafe to
rely upon such a tainted investigation by the Investigating Officer.
Our view is fortified by the dictum of the Hon'ble Supreme Court in
the case of State of Andra Pradesh -vs- Punati Ramulu and
Others reported in 1994 Supp (1) SCC 590 wherein at
paragraphs-5 and 6 has held as under:
"5. According to the evidence of PW 22, Circle
Inspector, he had received information of the
incident from police constable No. 1278, who was
on 'bandobast' duty. On receiving the information
of the occurrence, PW 22 left for the village of
occurrence and started the investigation in the
case. Before proceeding to the village to take up
the investigation, it is conceded by PW 2 in his
evidence, that he made no entry in the daily diary
or record in the general diary about the
information that had been given to him by
constable 1278, who was the first person to give
information to him on the basis of which he had
proceeded to the spot and taken up the
investigation in hand. It was only when PW 1
returned from the police station along with the
written complaint to the village that the same was
registered by the Circle Inspector, PW 22, during
the investigation of the case at about 12.30 noon,
as the FIR, Ex. P-1. In our opinion, the complaint,
Ex. P-1, could not be treated as the FIR in the
case as it certainly would be a statement made
during the investigation of a case and hit by
Section 162 CrPC. As a matter of fact the High
Court recorded a categorical finding to the effect
that Ex. P-1 had not been prepared at
Narasaraopet and that it had "been brought into
existence at Pamaidipadu itself, after due
deliberation". Once we find that the investigating
officer has deliberately failed to record the first
information report on receipt of the information of
a cognizable offence of the nature, as in this case,
and had prepared the first information report after
reaching the spot after due deliberations,
consultations and discussion, the conclusion
becomes inescapable that the investigation is
tainted and it would, therefore, be unsafe to rely
upon such a tainted investigation, as one would
not know where the police officer would have
stopped to fabricate evidence and create false
clues. Though we agree that mere relationship of
the witnesses PW 3 and PW 4, the children of the
deceased or of PW 1 and PW 2 who are also
related to the deceased, by itself is not enough to
discard their testimony and that the relationship
or the partisan nature of the evidence only puts
the Court on its guard to scrutinise the evidence
more carefully, we find that in this case when the
bona fides of the investigation has been
successfully assailed, it would not be safe to rely
upon the testimony of these witnesses either in
the absence of strong corroborative evidence of a
clinching nature, which is found wanting in this
case.
6. Keeping in view these circumstances and being
of the opinion that the findings recorded by the
High Court while acquitting A-1 to A-3 and A-6 to
A-8 are borne out by the evidence and are
otherwise also reasonable and sound, we do not
find any justification to interfere with the order of
acquittal. Consequently the State appeal fails and
is dismissed. The respondents are on bail. Their
bonds shall stand discharged."
49. Though a contention was raised by the learned State
Public Prosecutor while defending the impugned judgment and
order of conviction that mere delay cannot take away the entire
prosecution case, when there is the evidence of the prosecution
witnesses and not conducting Test Identification Parade is not a
ground to acquit the accused. As already stated supra, there are
inconsistencies in the evidence of the prosecution witnesses. On
meticulous examination of the evidence on record, it is clear from
the evidence of P.Ws.1 to 5, 8, 11, 13, 15, 17 and 18 that that
there are so many omissions and contradictions in the evidence of
prosecution witnesses, that the entire fabric of the prosecution case
appears to be ridden with gaping holes. It is true that due to
passage of time, witnesses do deviate from their police statements
as their memory fades to some extent. Reasonable allowance can
be made for such discrepancies. But when such discrepancies
make the foundation of the prosecution case shaky, the court has
to take strict note thereof. On thorough reading of the aforesaid
evidences of the prosecution witnesses, the discrepancies are
located and the witnesses have discredited themselves. So also the
medical evidence relied upon by the prosecution is not proved
beyond all reasonable doubt. Therefore, the contention of the
learned State Public Prosecutor cannot be accepted.
50. Though the learned State Public prosecutor relied upon
the dictum of the Hon'ble Supreme Court in the case of Dev Karan
Alias Lambu -vs- State of Haryana reported in (2019) 8 SCC
596 with regard to Sections 141 to 149 of the Indian Penal Code
dealing with unlawful assembly and punishment for the offences
committed in furtherance of common object of unlawful assembly
has held that the emphasis in Section 149 of IPC is on the common
object and not on common intention. Mere presence in an unlawful
assembly cannot render a person liable unless there was a common
object and he was actuated by that common object and that object
is one of those set out in Section 141 of IPC. Admittedly in the
present case, there was a quarrel between the parties and in the
incident, both the parties sustained simple and grievous injuries as
stated in both the complaints registered by the same investigating
officer in the same police station. In view of the fact that there are
inconsistencies in the evidence of the prosecution witnesses, who
were not in a position to identify the accused and the doctors of the
different hospitals, who treated the deceased and others, have
issued the wound certificates and have not been examined as well
as the prosecution failing to establish the common object of
unlawful assembly in furtherance of common object beyond all
reasonable doubt, the judgment relied upon by the learned State
Public Prosecutor has no application to the facts and circumstances
of the present case.
51. In another judgment relied upon by the learned State
Public Prosecutor in the case of Mano Dutt and Another -vs-
State of Uttar Pradesh reported in (2012)4 SCC 79 where the
fight did not occur on spur of moment and the accused had
returned to the place of occurrence with complete preparedness
and after giving Lalkara, had attacked the deceased, it was held
that the common intention of accused to kill the deceased was
proved, especially by their lalkara and further the participation of
the accused in case of common intention would not depend on
extent of overt act where accused with common intention had
inflicted injuries on deceased in preplanned manner and the
provisions of Section 34 of the IPC would be applicable to all.
Admittedly, in the present case, it is the deceased Narayana, who
went to the garden of accused No.1 to fix the electric fuse
expressly, who was the cause for the incident and due to verbal
altercation between the parties, there was a fight between two
groups with regard to which two complaints were lodged by two
different parties and the investigation conducted was by two
separate investigating officers. Admittedly, in the complaint lodged
by accused No.2 - Pushparaj, the trial Court acquitted all the
accused persons i.e., P.Ws.1 to 5 in the present case. The
prosecution has failed to prove beyond all reasonable doubt that
both oral and documentary evidence on record, establish the guilt
of the accused persons in causing homicidal death of the deceased,
as the evidence on record i.e., Ex.D.10, the wound certificate
issued by the Raj Nursing Home in favour of Narayana Murthy
(deceased Narayana), clearly depict that the injuries mentioned
therein are simple in nature whereas the wound certificate issued
by the Pradeep Nursing Home disclose that injury Nos.1 to 9 are
simple and injury Nos.10 to 11 are grievous in nature. Even the
doctor, who treated the deceased, is not examined and the
postmortem report clearly depict that the cause of death was due to
respiratory failure as a result of complication of injuries sustained
by the deceased. Therefore, in view of the inconsistencies in the
evidence of both the prosecution witnesses and medical evidence,
the prosecution has failed to establish the offences as alleged in the
charge sheet against the accused persons beyond all reasonable
doubt. Therefore, the above said judgment relied upon by the
learned SPP is of no assistance to the case of the prosecution and
has no application to the facts and circumstances of the present
case.
52. Though the learned SPP relying upon the dictums of the
Hon'ble Supreme Court in the cases of State of Uttar Pradesh -
vs- Naresh and Others reported in (2011)4 SCC 324 and
Bhajan Singh Alias Harbhajan Singh and Others -vs- State of
Haryana reported in (2011) 7 SCC 421 contended that
credibility of the testimony of the injured witness has to be given
due weightage being a stamped witness and his presence cannot be
doubted, in view of the prosecution witnesses non identifying the
actual assailant and the medical evidence i.e., wound certificates
issued by different doctors of different hospitals and different times
and non-examination of any of the said doctors, both sides i.e.,
P.Ws.1 to 5 and accused Nos.1 to 5 specifically stating that they
also sustained injuries with regard to which they have produced the
wound certificates and doctors, who have issued the wound
certificates, having not examined, the judgments relied upon by the
learned SPP has no application to the facts and circumstances of
the present case.
53. The learned SPP also relied upon the dictums of the
Hon'ble Supreme Court in the case of Abdul Sayeed -vs- State of
Madhya Pradesh reported in (2010) 10 SCC 259 and Mohan
and Another -vs- State of U.P. reported in (2002) 7 SCC 606
with regard identification of accused by the witnesses in a crowd of
assailants the Hon'ble Supreme Court has held that where there are
large number of assailants, it would be difficult for witnesses to
identify each assailant and attribute specific role to him.
Admittedly, in the present case, according to the complaint -
Ex.P.1, it is alleged that about 18 persons attacked P.Ws.1 to 3
near their house in Somanahalli and destroyed the house hold
articles. Neither of the prosecution witnesses have identified the
actual assailant, who was involved in the incident and the wound
certificates are issued by four different hospitals and doctors who
have issued the said wound certificates have not been examined.
Therefore, in the absence of the same, the very judgments relied
upon by the learned SPP cannot be accepted as they have no
application to the facts and circumstances of the present case.
54. It is also relevant to state, at this stage, that according
to the prosecution, the deceased Narayana sustained injuries. As
per the wound certificate - Ex.P.11, dated 31.7.1998, issued by
Deepak Nursing Home, he had sustained 12 injuries, out of which,
injury Nos.1 to 9 were simple and injury Nos.10, 11 and 12 are
grievous in nature. As per the postmortem report Ex.P.5 dated
15.5.1998 issued by the Kempegowda Institute of Medical Sciences,
the deceased had sustained 15 injuries and as per wound certificate
- Ex.D.10, dated 16.3.1999, the deceased had sustained three
injuries, which were simple in nature. In view of the evidence of
P.W.11 - Dr. K. Anand, Professor and Head of the Department of
Forensic Medicine, who has opined that the death was due to
respiratory failure as a result of complication of injuries sustained
and in view of the fact that, the injured was in the hospital for more
than 10 days because of either negligence on the part of the injured
or on the part of the doctors, who treated him in different hospitals,
he might have succumbed to the injuries because of complication.
As could be seen from the Medical Jurisprudence and Toxicology, 1st
Edition, under the Head - "REMOTE CAUSES: though the injury
does not directly cause death, the victim may die after a varying
period from remote causes. Even when the victim dies of
complications, an assailant is responsible, provided death can be
traced to likely result of the injury. In a charge of murder, death
should be clearly connected with the injury. The assailant is
responsible even if the victim was in a bad state of health when
attacked, and if the injury inflicted by the accused accelerated or
precipitated the death". The Remote Causes also include:
(i) Infection:- a) Direct Infection;
b) Remote Infection;
c) Trauma;
2) Gangrene or Necrosis;
3) Acute Tubular Necrosis (Crush Syndrome)
4) Neglect of Injured Person;
5) Surgical Operation;
Death may occur from complications arising from a simple injury
due to improper treatment or negligence on the part of the doctor,
or to negligence or willful disobedient on the part of the patient.
55. In view of the inconsistent medical wound certificates
issued by the different hospitals and in view of the specific evidence
of P.W.11 - Dr. K. Anand and the post mortem report that the
death of the deceased Narayana was due to respiratory failure as a
result of complication of injuries and the deceased having died in
the hospital after more than 10 days, clearly establish that the
prosecution has failed to prove beyond all reasonable doubt that the
death of the deceased was due to injuries sustained in an
unfortunate incident. The said material aspects has not all been
considered by the learned Sessions Judge.
VIII CONCLUSION
56. For the aforesaid reasons, the point raised in the
present appeals is answered in the affirmative holding that the
appellants- accused have made out a case to interfere with the
impugned judgment of conviction and order of sentence passed by
the trial Court convicting the appellants-accused for the offences
punishable under Sections 143, 148, 448, 324, 428, 302 r/w 149
of IPC.
57. In view of the above, we pass the following:
IX ORDER/RESULT
i) a) Criminal Appeal No.2178/2017 filed by
accused No.13,
b) Criminal Appeal No.2171/2017 filed by
accused Nos.16 and 17,
c) Criminal Appeal No.2172/2017 filed by
accused Nos.7, 8, 9, 10 and 12,
d) Criminal Appeal No.2193/2017 filed by
accused Nos.2 and 3,
are hereby allowed;
ii) The impugned judgment of conviction and order
of sentence dated 29.11.2017/6.12.2017 made
in S.C.Nos. 231/1998 c/w 135/1999 c/w
212/1999 c/w 297/1999 on the file of the VII
Additional District and Sessions Judge,
Bangalore Rural District, Bangalore convicting
the appellants-accused for the offences
punishable under Sections 143, 148, 448, 324,
428, 302 r/w 149 of the Indian Penal Code, is
hereby set aside;
iii) The appellants-accused are hereby acquitted of
all the charges leveled against them and they
shall be set at liberty forthwith, if not required in
any other case; and
iv) The fine amount, if any already paid by the
accused, shall be refunded to them.
Let a copy of this judgment shall be sent to the concerned
jail authorities forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
pages 1 to 42 Gss*
43 to end Nsu/-
