Karnataka High Court

The State By The vs Nandeesha on 2 February, 2022

Bench: K.Somashekar, P.N.Desai

                               1




       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 02ND DAY OF FEBRUARY, 2022
                         PRESENT

          THE HON'BLE MR. JUSTICE K. SOMASHEKAR

                              AND

             THE HON'BLE MR. JUSTICE P.N.DESAI

             CRIMINAL APPEAL NO.1349/2016

BETWEEN:
THE STATE BY THE
AKKURU POLICE STATION
CHANNAPATNA TALUK
RAMANAGARA DISTRICT
REPRESENTED BY STATE
PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU - 560 001                          ... APPELLANT


(BY SRI. RAHUL RAI K, HCGP)

AND:
NANDEESHA
S/O. SOMALINGEGOWDA
32 YEARS, R/AT. HANIYURU VILLAGE,
CHANNAPATNA TALUK
RAMANAGARA DISTRICT - 571 501              ... RESPONDENT


(BY SRI. P.PRASANNA KUMAR, ADVOCATE)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)
AND (3) CR.P.C PRAYING TO GRANT LEAVE TO APPEAL AGAINST
THE IMPUGNED JUDGMENT AND ORDER OF ACQUITTAL DATED
12.02.2016 PASSED BY THE LEARNED PRL. DIST. AND S.J.,
RAMANAGARA IN S.C.NO.132/2010 THEREBY ACQUITTING THE
RESPONDENT-ACCUSED OF THE OFFENCES P/U/S 448, 504, 324,
506, 307 OF IPC.
     THIS CRIMINAL APPEAL COMING ON FOR FURTHER
ARGUMENTS THIS DAY, P.N.DESAI J., DELIVERED THE
FOLLOWING:
                                2




                         JUDGMENT

This appeal arises out of judgment passed in

S.C.No.132/2010 dated 12.02.2016, wherein the

respondent/accused was acquitted for the offence

punishable under Sections 448, 504, 307, 324 and 506

of Indian Penal Code, 1860 (for short hereinafter

referred to as 'IPC').

2. The brief case of the prosecution is that on

08.05.2010 around 06:00 p.m. at Haniyuru Village, the

accused tress-passed into the house of Smt.

Vijayalakshmi with the previous enmity pertaining to

landed property and abused her in a filthy language. It

is further contended that the accused with an intention

to commit murder of Smt. Vijayalakshmi, tried to

assault her with a knife. When Smt. Vijayalakshmi

tried to avoid the same, she sustained injuries to her

left index finger. One H.S.Nithish Gowda - PW.2 came

to rescue Smt. Vijayalakshmi, but the accused also

assaulted PW.2 on his neck and left cheek with the

knife and caused bleeding injuries. In this regard,

Smt. Vijayalakshmi lodged a complaint before the

Akkur Police Station on 08.05.2010 at 08:45 p.m. The

Station House Officer/PW.8 who was present in the

police station, received the complaint as per Ex.P1 and

registered the case in Cr.No.90/2010 for the offence

punishable under Sections 448, 504, 324, 307 and 506

of IPC. After registering the FIR/Ex.P6, the same was

sent to Court.

3. It is the further case of the prosecution that

Sri. M.L.Krishnamurthy, PSI who was examined as

PW.9 took up further investigation. He visited the

place of offence on 09.05.2010 and conducted the

scene of offence panchanama and drew the mahazar

as shown by victim - Vijayalakshmi and one

Somegowda who are the panchas as per Ex.P2. PW.9

also seized M.Os.1 to 3. PW.9/PSI also recorded the

statement of witnesses and thereafter handed over

further investigation to one Mahadevappa - PSI.

Thereafter, PW.7 - M.P.Jayaramu, PSI collected the

wound certificate. He has also recorded the statement

of witnesses and after completion of investigation, he

filed the charge sheet against the accused for the

offence stated above. Thereafterwards, said case was

committed by the learned Magistrate after complying

the provisions of Sections 207, 208 and 209 Code of

Criminal Procedure, (for short hereinafter referred to

as 'Cr.P.C.') to the court of sessions for trial.

4. Learned Sessions Judge after hearing

prosecution and accused, framed the charge against

the accused for the offences punishable under Sections

448, 504, 324, 307 and 506, IPC. Prosecution got

examined nine witnesses as PWs.1 to 9, got marked

six documents as Exs.P1 to P6. On behalf of accused,

no witnesses were examined, but two documents were

got marked as Exs.D1 portion of statement of PW.4

and D2 - deposition copy. Prosecution also got

identified three material objects as M.Os. 1 to 3.

Thereafter, the statement of the accused as required

under Section 313 (b), Cr.P.C. was recorded. The

accused totally denied the circumstances appearing

against him in the evidence of prosecution witnesses.

The accused has not chosen to lead any defence

evidence. After hearing arguments, the learned

Sessions Judge acquitted the accused which is now

assailed by the State in this appeal.

5. Heard Sri Rahul Rai. K, learned HCGP for

the State and Sri P.Prasanna Kumar, learned counsel

for the respondent/accused.

6. Learned HCGP argued that the impugned

judgment and order of acquittal recorded by the Trial

Court is contrary to law, facts of the case and the

evidence on record. He further argued that the

reasons assigned by the Trial Court while passing the

judgment are erroneous. It is stated that PW-1 is the

injured eyewitness and she has stated about the

assault on her and injuries sustained by her. PW-2 is

also an injured witness and has stated about the

assault. Though the prosecution has proved the

allegations beyond all reasonable doubt, but the

acquittal order passed by the Trial Court has resulted

in miscarriage of justice. Learned HCGP further

submitted that the learned Sessions Judge has not

properly appreciated the evidence on record even

though the prosecution witnesses have supported

prosecution case. Therefore, learned HCGP argued

that since the prosecution has proved its case beyond

all reasonable doubt, the judgment of acquittal passed

by the Trial Court which is not based on any reasons,

needs to be interfered with by this Court and therefore,

he prays for setting aside the same and to convict the

accused and impose appropriate sentence in

accordance with law.

7. Against this, Sri P.Prasanna Kumar, learned

counsel for the accused argued that the learned

Sessions Judge has rightly appreciated the evidence in

proper perspective. There is a civil dispute between

PW-1 and the accused. The evidence on record

indicates that the prosecution has failed to prove the

charges levelled against the accused beyond all

reasonable doubt, PW-1 tried to falsely implicate the

respondent/accused due to ill-will and enmity. Thus,

he submits that there are inconsistencies in the

prosecution theory which go to the root of the case.

The Trial Court after hearing both sides, and

considering the oral and medical evidence, has rightly

come to the conclusion that the accused is entitled for

the benefit of doubt. Accordingly, the learned Sessions

Judge rightly acquitted the accused. The learned

counsel further submitted that this Court being an

Appellate Court, while considering the appeal against

judgment of acquittal, unless the judgment of the Trial

Court is shown to be illegal, capricious or not based on

settled principles regarding appreciation of evidence,

the Appellate Court will be slow in interfering with the

judgment of acquittal. With these main arguments,

the learned counsel prayed for dismissal of the appeal.

8. We have perused the judgment passed by

the learned Sessions Judge.

9. Learned Sessions Judge has raised two

points for consideration. The learned Sessions Judge

has considered the evidence of each witness

meticulously one by one. The Trial Court also referred

to the previous criminal and civil cases which were

decided and pending between the parties. Learned

Sessions Judge has referred to the medical evidence on

record and found that there are several material

contradictions and inconsistencies in the evidence of

the prosecution witnesses. He also found that PWs-1

and 2 being highly interested witnesses and inimical

towards the accused, it is not safe to believe their

version without independent corroboration, particularly

in view of nature of injuries stated by the doctor

compared to the nature of allegations. Accordingly,

learned Sessions Judge has given the benefit of doubt

and acquitted the accused.

10. We have perused the appeal memo and also

the entire evidence on record, both oral and

documentary. This Court being an Appellate Court, is

required to reappreciate the evidence on record. It is

evident PW-1, Smt.Vijayalaklshmi is the complainant

who is said to have set the criminal law in motion by

lodging complaint as per Ex.P1. On a perusal of Ex.P1,

it is seen that the incident occurred on 08.05.2010 at

about 6.00 p.m. when she was in the house. At that

time, accused-Nandeesha suddenly entered her house

and started a quarrel. Accused asked PW-1 to transfer

the land in his name, otherwise he will take away their

life. Stating so, with the help of a knife, he tried to

stab her. At that time, PW-1 sustained injury to her

left index finger. Her son, PW-2, Nithishgowda came

to rescue her, but he was also assaulted with knife.

Both PW-1 and PW-2 tried to run away from the house

and at that time, neighbourers viz., Nagaraju, his wife

Smt.Jayasheela, Smt.Susheelamma and Somegowda

came to rescue them. When the people gathered

there, accused threatened to take away their life and

ran away. The oral evidence of PW-1 shows that it is

quite contrary to her written complaint-Ex.P1. PW-1

has stated in her evidence that the accused suddenly

entered the house and told that he will take away her

life. She never stated about any abusive words used

by the accused nor where he tried to assault her. After

the assault, accused himself tried to run away and

though CWs-3 and 4 tried to chase him, they could not

catch him. This evidence shows that PW-1 has given a

different version before Court when compared with her

written complaint, Ex.P1. In her examination-in-chief

itself, she has admitted that there was a site at

Haniyuru village. There is a quarrel and dispute

between them in respect of that property for the last

two years. In cross-examination, PW-1 has stated that

her husband is working in Police Department. She has

admitted that earlier also, she had lodged complaints

against the accused and others at Channapatna Court.

There were other two cases filed by her. She has

given evidence in those cases. Even she denied her

own deposition which is marked as Ex.D2 before the

Court. She has admitted that her husband has also

filed civil suit in respect of the said site against the

mother of the accused and she denied the suggestion

that the said suit was also dismissed, which is contrary

to the evidence on record. The appeal filed in that

behalf was also dismissed, so also the Miscellaneous

Petition filed by her husband was dismissed. This

shows that PW-1 tried to suppress the truth though her

husband himself was party to those proceedings, as

evident from a copy of the judgments and orders

produced by the accused along with Section 313,

Cr.P.C. statement. She has admitted that the accused

is not residing in their village, but he used to visit the

said village. PW-1 expressed her ignorance that the

accused is working at Bengaluru. This shows that the

accused was not at all residing in their village. She has

admitted that there were houses of other persons

around her house. One Smt.Susheelamma is residing

as neighbourer and there is house of Somegowda

which is opposite to their house. She has admitted

that there is a hotel near her house. She has also

admitted that there was Panchayat election on the day

of the incident. She has denied that her husband has

supported PWs-4 and 5 on that day and she has denied

that the accused and her brother-in-law have

supported one Boregowda in the said election. She

has admitted that there was ill-will between herself and

the accused for the last 7-8 years. She has stated that

herself and PW-2 went to the hospital around

7.30/7.45 p.m. and from there, they were taken to

BGS Hospital. She has further stated that it was about

6.30/7.00 p.m. when the accused came to her house,

and when he tried to run away, at that time, 4-5

persons came there, but she does not know their

names. She has further stated that the knife was lying

in their house only. She has denied a suggestion that

she has created the knife for the purpose of this case.

11. Contrary to her evidence, PW-2, her son has

deposed in his evidence that himself and his mother

were watching TV on 08.05.2010 at about 6.00 p.m.

This again is a new version stated by this witness. He

has stated that suddenly the accused came to their

house. How he came, from where and from which

place he came is not forthcoming. A simple general

and vague statement is made that the accused came

inside the house and when the accused tried to stab

his mother, she tried to escape and sustained injuries

to her left index and middle finger. PW-2 has stated

that when he tried to interfere, he also sustained

injuries. Then he himself and his mother went in an

ambulance to the hospital and he has identified the

material objects. In the cross-examination, he has

denied that there was political enmity between them.

He has also stated that he does not know who had

brought the ambulance. They went to BGS Hospital in

a car. PW-2 has stated that he does not know which

hand his mother was holding to rescue herself. He

again stated that the accused quarrelled with his

mother (PW-1) orally and that the quarrel took place

for 5-10 minutes, but he never tried to pacify the

accused. This again is a new version deposed by this

witness which is not at all the prosecution case nor

stated by PW-1. Therefore, the very presence of this

witness at the time of the alleged incident is doubtful.

He has further stated that he caught hold of the

accused when the accused tried to assault him, at that

time there was a scuffle between himself and the

accused and he fell down and sustained injuries to his

back and left hand. Again this is totally inconsistent

and contrary to the theory of assault stated by PW-1

and also medical evidence. He has stated that when

he screamed for help, none came and the accused ran

away. So, the evidence of PW-2 is totally inconsistent

and contrary to the oral evidence of PW-1 and the

contents of Ex.P1.

12. PW-3, Dr.Basavaraja has stated in his

evidence that at about 10.00 p.m. on 08.05.2010, PW-

2 was brought by his father-Shivarudregowda with the

history of assault and he found 3 injuries as mentioned

in the wound certificate as per Ex.P4, which are as

under:

"1. Incised wound of 7 cm x1.5 cms full thickness on left side of face involving lower lip and exposing tooth,

2. Superficial incised wound of 3 cms x 0.2 cms x 0.2 cms on upper part of neck, 4 cms lateral to midline on left side,

3. Cut lacerated wound of 2 cms x 0.2 cms x 0.2 cms on right great toe."

He found that all the injuries are simple in nature. He

has also stated that on the same day, he examined

PW-1 and found one incised wound 2 cms. x 0.3 cms x

0.2 cms on the web space of left hand index finger and

middle finger and it was a simple injury as per the

wound certificate-Ex.P5. The doctor has clearly opined

that the injuries mentioned in Ex.P4 to PW-2 could not

be possible with the use of M.O.1 which is seized by

the prosecution and which, according to PW-1, was

used by the accused to assault her. Thus, it is seen

that the medical evidence is totally inconsistent and

contrary to the theory of assault. It is evident that

M.O.1-knife is not a weapon which could cause injuries

mentioned in Ex.P4. Therefore, the medical evidence

further makes the theory of assault doubtful.

13. Further, PW-3 in his examination-in-chief

has clearly stated that M.O.1 was not sent to him for

his opinion to say whether the injuries could be caused

with such an object. It is also stated that he has not

measured the width of the sharp edge of M.O.1. He

has clearly admitted that there is a possibility that any

person falls suddenly on the bill-hook could possibly

sustain injury No.1 shown in Exs.P4 and P5.

14. PW-4, Nagaraju according to the

prosecution, is an independent eyewitness for the

incident. In his evidence, he has stated that when he

was in the house, he heard some noise and he told his

wife to verify what is happening. After hearing the

screams of his wife, he also went there. He has stated

that the accused was running by holding a knife in his

hand and he caught hold of the accused. At that time,

PWs-1 and 2 fell down in the gutter and when again

they tried to run, at that time, accused assaulted PW-2

on his leg and ran away. Therefore, it appears this

witness is a planted witness just to say something

against the accused and it is not safe to believe his

evidence. Further, prosecution has treated this

witness as partly hostile and cross-examined him. But

when again cross-examined by the accused side, he

has clearly stated that he has not given a statement

before police as per Ex.D1. So the evidence of PW-4 is

also not helpful to the prosecution case in any way.

15. PW-5, Jaysheela is the wife of Nagaraj (PW-

4). She has also given evidence similar to that of PW-

4. She has stated that the accused was chasing PW-1

from their house and he tried to stab her on her

abdomen and when PW-1 tried to stop it, she sustained

injuries to her left hand. Again this evidence is totally

inconsistent with the evidence of PW-1. According to

this witness, the incident occurred in front of the house

of PW-1 on the road, which is not at all the case of the

prosecution. She never stated the presence of her

husband at that time. Her cross-examination also

indicates that it was darkness at that time and public

had also gathered there, but she cannot say who

rescued PWs-1 and 2. She has clearly stated that both

PW-1 and PW-2 had fallen in the gutter and public

lifted them. So it appears that PWs-1 and 2 sustained

some injuries when they fell in the gutter, but not by

the assault.

16. PW-6, Puttegowda is a witness for mahazar.

He has stated that when he was going to the bus stop,

police asked him to sign the mahazar in front of the

house of PW-1. His cross-examination indicates that

he has not seen the seizure of M.O.1. PW-7, Jairam is

the police sub inspector then and PW-8, Nagabhushan

is the head constable who received the complaint and

registered FIR. But on perusing the FIR-Ex.P6, though

the case was registered on 08.05.2010 at about 8.45

p.m., FIR was sent to the Court on the next day i.e.

09.05.2010 at 11.00 a.m. This exorbitant delay in

sending FIR to the Court, that too when the husband of

PW-1 is a police official, creates a doubt about the

veracity of the contents of Ex.P6, particularly when

there is no explanation for such delay.

17. PW-9, M.L.Krishnamurthy, investigating

officer, has denied that PWs-1 and 2 have not given

statement before him stating that they fell in the

gutter. So, the evidence of PW-9 and PW-7, Jairam in

the light of the evidence placed before the Court

creates a doubt about the investigation done by him.

18. On re-appreciation of the evidence placed

by the prosecution with reference to the statement

filed by the accused under Section 313, Cr.P.C, it is

evident that there is a civil dispute between the

accused and PW-1 and her husband. It is also evident

that the suit filed by the husband of PW-1 in respect of

the site is dismissed; so also the appeal and

miscellaneous petition are dismissed. There are other

criminal cases filed by PW-1 against the accused and

their family members. Therefore, it is evident that

there is ill-will and enmity between PW-1 and the

accused in respect of the property.

19. Admittedly, the accused is not residing in

the same village. The evidence of PWs-1 to 4 are

contradictory with each other when compared with the

contents of Ex.P1. The oral evidence is inconsistent

with medical evidence of the doctor and wound

certificates at Exs.P4 and P5. The evidence of PWs-1

to 4 creates a doubt as to exactly where the incident

took place. There are no records or evidence to show

that the incident occurred inside the house of PW-1.

Further, though there are other independent witnesses

and other villagers who had gathered there, but they

have not been examined. The theory of assault stated

by PW-1 and PW-2 is totally contrary to the evidence

of the prosecution witnesses. It is evident that there

might have been some quarrel between them and as

stated by the witnesses, PWs-1 and 2 were lifted from

the gutter. So, the possibility of them sustaining any

injuries as stated in the wound certificates by falling on

the ground or in the gutter cannot be ruled out. The

theory of assault with M.O.1-knife cannot be believed.

20. It is settled principle of law that if there are

two views possible from the evidence of the

prosecution, the view that is favourable to the accused

will have to be accepted. Admittedly, in this case,

there is ill-will and enmity between the accused and

PWs-1 and 2. This ill-will and enmity is like a double

edged weapon which cuts either way. In the light of

the evidence of PW-1 and PW-2 and the material

contradictions appearing in their evidence itself, the

theory of trespass cannot be pleaded. There is

absolutely no evidence that the accused tried to take

away their life or to cause any injury as stated by the

witnesses. There is no filthy word used by the accused

or uttered by any of the witnesses. Therefore, due to

family dispute or because of some quarrel, the

possibility of falsely implicating the accused due to ill-

will also cannot be ruled out. Therefore, as the

prosecution evidence shows two views, then in view of

settled principles, the view that is favourable to the

accused will have to be accepted.

21. The Hon'ble Supreme Court in the case of

SHARAD BIRDHI CHAND SARDA .v. STATE OF

MAHARASHTRA1 while dealing with the above

proposition, has held at paragraph 163 as follows:

"163. We then pass on to another important point which seems to have been completely missed by the High Court. It is

(1984) 4 SCC 116

well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. In Kali Ram v. State of Himachal Pradesh, [(1973) 2 SCC 808] this Court made the following observations (para 25 p.820):

"Another golden thread which runs through the web of the 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 This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence."

22. As discussed above, learned Sessions Judge

has given elaborate reasons and arrived at finding of

acquittal. The said finding of acquittal cannot be

interfered with by this court unless it is shown that the

judgment is perverse, erroneous and not based on

settled principles regarding appreciation of evidence in

criminal cases.

23. The Hon'ble Supreme Court in a decision in

the case of Sampat Babso Kale and Another v.

State of Maharashtra [(2019) 4 SCC 739], at

paragraph 8 has held thus:

"8. With regard to the powers of an appellate court in an appeal against acquittal, the law is well established that the presumption of innocence which is attached to every accused person gets strengthened when such an accused is acquitted by the trial court and the High Court should not lightly interfere with the decision of the trial court which has recorded the evidence and observed the demeanour of witnesses. This Court in the case of Chandrappa & Ors. v. State of Karnataka [(2007) 4 SCC 415], laid down the following principles:-

      "42.    From        the    above      decisions,     in   our
     considered       view,        the      following      general

principles regarding powers of the appellate

court while dealing with an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

24. In view of the principles stated by the

Hon'ble Supreme Court in the decisions referred supra,

on re-assessing the entire evidence of prosecution

witnesses and for the discussion made above, we are

of the considered opinion that the prosecution has

failed to prove the guilt of the accused beyond all

reasonable doubt. The learned Sessions Judge has

considered the entire evidence meticulously and has

come to a conclusion that prosecution has failed to

prove the guilt of the accused beyond all reasonable

doubt and acquitted the accused by giving benefit of

doubt. We find that the judgment of acquittal passed