State By Kyathsandra Police vs Devarajaiah S
2022 Latest Caselaw 912 Kant

                             1
                                             R

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 20TH DAY OF JANUARY, 2022

                       PRESENT

       THE HON'BLE MR.JUSTICE K.SOMASHEKAR
                            AND
         THE HON'BLE MR. JUSTICE P.N.DESAI

         CRIMINAL APPEAL NO. 2038 OF 2016
BETWEEN:
State by Kyathsandra Police
Represented by State Public Prosecutor
High Court Building
Bengaluru - 560 001.
                                         ...Appellant

(By Smt. K.P. Yashodha - HCGP)

AND:
1.     Devarajaiah S
       S/o. Shamaiah
       Aged about 39 years
       Occ: Teacher

2.     Venkatesha
       S/o. Shamaiah
       Occ: Teacher

3.     Mamatha
       Aged abut 34 years
       Occ: House wife
                            2


4.   Chinnaswamy
     S/o. Venkatappa
     Aged about 68 years

5.   Thimmakka
     Aged about 62 years
     Occ: House Wife

6.   Sumithra
     D/o. Hanumantharayappa
     Aged about 23 years
     Occ: House wife

7.   Siddaraju
     S/o. Hullaraiah
     Aged about 37 years

8.   Shamaiah
     S/o. Siddaiah
     Aged about 72 years
     Occ: Farmer

All R/o. Bovipalya Urdgere Hobli
Tumkuru Taluk and District-572101.
                                         ...Respondents

(By Sri. S. Victor Manoharan - Advocate for R-1 to R-8)

       This Criminal Appeal filed under Sec.378(1) and
(3) of Criminal Procedure Code, by the advocate for the
appellant praying to set aside the judgment and order of
acquittal dated 22.06.2016 passed in Sessions Case
No.124/2014 on the file of the Principal District and
Sessions Judge, at Tumakuru for the offence
punishable under Sections 143, 147, 341, 504, 395,
307, 323, 354, 506 r/w 149 of IPC, by allowing this
                               3


appeal    and    convict          and     sentence      the
accused/respondents.

     This criminal appeal coming on for further
arguments through video conference this day,
K. SOMASHEKAR .J delivered the following:

                   JUDGMENT

This appeal is directed against the impugned

judgment rendered by the trial Court in

S.C.No.124/2014 dated 22.06.2016 which ended in

acquittal for the offences under Sections 143, 147, 341,

504, 395, 307, 323, 354, 506 r/w 149 of IPC, 1860.

2. This appeal is preferred by the State by urging

various grounds and seeking for intervention, if not,

there shall be miscarriage of justice. Therefore, in this

appeal seeking for allowing the appeal and to set-aside

the acquittal judgment rendered by the trial Court in

S.C.No.124/2014. Consequent upon setting aside the

acquittal judgment to convict the accused for the

offences which leveled against them.

3. Heard Smt.K.P.Yashoda, learned HCGP for

State who is present before the Court physically and so

also, learned counsel Sri S.Victor Manoharan, learned

counsel for respondent Nos.1 to 8 who is appearing

through video conferencing. Perused the impugned

judgment of acquittal in S.C.No.124/2014 dated

22.06.2016 consisting the evidence of PWs.1 to 8 and so

also, documents at Ex.P1 to P5. No material object has

been marked on the part of the prosecution.

4. The factual matrix of the appeal are as under:

It is transpired in the case of the prosecution that

on 15.12.2013, complainant namely Geetha who is the

gravamen of the incident who filed a complaint before

the Kyathsandra Police and based upon her complaint,

criminal law was set into motion by registering the case

in Crime No.374/2013 for the offences reflected therein.

It is transpired in the complaint that on the aforesaid

date when complainant Geetha after delivering milk at

Hiredoddavadi Milk Dairy was returning to home in her

TVS XL Heavy Duty motorcycle bearing Regn.No.KA-06-

EB-267. At around 7.30 p.m. when the complainant

was passing near her garden at Bhovipalya, the accused

persons being members of an unlawful assembly came

to the complainant and picked-up quarrel asking her to

withdraw the case lodged against them and in that

process outrage her modesty and took away her two-

wheeler. It is further alleged that on the next day i.e.,

on 16.12.2013 at 10.00 a.m., on the same place, the

accused persons assaulted the complainant with means

of hands and kicked on her person as a result of that

inflicted some sort of injuries having intention or

knowledge and due to the said circumstances,

complainant - Geetha suffered injuries as alleged in the

complaint and also made attempt to take away her life.

5. In pursuance of the act of the accused, on filing

of the complaint by the complainant, criminal law was

set into motion by registering crime and thereafter, the

investigating officer took up the case for investigation

and the investigation was done thoroughly as according

to Section 173(2) of Cr.P.C. and laid the charge sheet

against the accused before the committal court.

Subsequent to laying of charge sheet by the

investigating officer that the committal Court passed an

order as under Section 209 of Cr.P.C by complying

Section 207 and 208 of Cr.P.C. Subsequent to

committing the case to the Court of Sessions the case in

S.C.No.124/2014 has been assigned and the charges

were framed against the accused on 17.02.2016

whereby the accused did not pleaded guilty but claimed

to be tried. Accordingly, the plea of the accused was

recorded separately relating to the offence under

Sections 143, 147, 341, 504, 395, 307, 323, 354, 506

r/w 149 of IPC.

6. Subsequent to framing of charge for the

aforesaid offences that the prosecution case was let in

for trial and accordingly, subjected to examine in all

PWs.1 to 8 and got marked documents at Exs.P1 to P5.

But no material objects were marked on the part of the

prosecution. Subsequent to closure of the evidence on

the part of the prosecution the accused were subjected

to examination as contemplated under Section 313 of

Cr.P.C. for enabling them to answer to the incriminating

evidence appearing against them. But the accused

denied the truth of evidence of prosecution.

Subsequently, accused were called upon to adduce

defence evidence as contemplated under Section 233 of

Cr.P.C. But the accused did not come forward to

adduce any defence evidence on their part.

7. Subsequent to closure of evidence in

accordance with relevant provisions of Code of Criminal

Procedure, the trial Court heard the arguments

advanced by the prosecution and so also, on the part of

the defence side and perused the evidence of PWs.1 to

8. PW.1 - Geetha is the complainant and she has filed

the complaint as per Ex.P1 and that complaint has been

received by PW.7 being the PSI and based upon her

complaint, criminal law was set into motion by

recording FIR as per Ex.P4. PW.4 - Narayanappa who is

also one of the panch witness relating to Ex.P2 -

Mahazar drawn on 17.12.2013 which bears the

signature of PWs.1, 4 and 5 as per Exs.P2(a), 2(b) and

2(c).

8. PW.6 - Lokesh is the panch witness relating to

Ex.P3 - Mahazar which was drawn on 29.12.2013 and

it bears the signature of PWs.6 and 7 as per Ex.P3(a)

and 3(b). PW.7 being the PSI secured the complainant

and also based upon her complaint the criminal law

was set into motion by recording FIR at Ex.P4 and also

secured wound certificate as per Ex.P5. Subsequently,

the charge sheet came to laid against the accused.

9. The trial Court having gone through the

evidence of the witnesses on the part of the prosecution

inclusive of exhibited documents as per Exs.P1 to P5

and having convinced by the same, came to the

conclusion that the prosecution did not facilitate

worthwhile evidence even though on several counts of

the offences of IPC the charges were framed and the

benefit of doubt was extended to the accused by

rendering the acquittal judgment by assigning reasons.

It is this judgment which is challenged under this

appeal by urging various grounds.

10. Whereas learned HCGP Smt.K.P.Yashoda for

State who is present before the Court physically has

taken us through the evidence of PW.1 - Geetha who is

the gravamen of the incident and also filed a complaint

by narrating the incident that on 15.12.2013 while she

was returning to her house after delivering the milk at

Hiredoddavadi milk dairy, in the meanwhile, at around

7.30 p.m. the accused had come to the complainant

with an intention to take her away her life and also

picked up quarrel insisting her to withdraw the case

which was lodged against them. In the course of the

said process, the accused alleged to have attempted

outrage her modesty and forcibly took away her two

wheeler. The criminal law was set into motion by filing

of a complaint by the complainant as per Ex.P1 and

whereby the crime came to be registered in Crime

No.374/2013. The complainant is a gravamen of the

incident narrated in the complaint, but the trial Court

misdirected and also misread the evidence of PW.1

inclusive of evidence of PWs.4, 5 and 6 relating to the

fulcrum of mahazar at Ex.P2 dated 17.12.2013 and

another mahazar at Ex.P3 dated 29.12.2013. But her

evidence finds corroborated with the evidence of PW.7

being the PSI and also being an IO who laid the charge

sheet against the accused. He has stated in his

evidence in conformity with the averments made in the

complaint at Ex.P1 and also in conformity with the

averments made in Ex.P4, FIR. But this evidence has

not been appreciated by the trial Court in a proper

perspective manner. Therefore, in this appeal it requires

for intervention, if not, certainly there shall be

miscarriage of justice and whereby the accused being

members of an unlawful assembly with an intention to

take away the life of PW.1 who is the gravamen of the

incident and also wrongfully confined her and also

made an attempt to outrage her modesty. The same is

seen in the evidence of PW.1 - Geetha and also relating

to picking up quarrel with her and insisting to withdraw

the case lodged by her against the accused persons.

11. The second limb of the arguments advanced

by the learned HCGP is that the trial Court did not

appreciate the evidence of the prosecution in a proper

perspective manner. Therefore, under this appeal it

requires for re-appreciation of evidence, if not, certainly

there shall be miscarriage of justice.

12. PW.1 - Geetha who is a gravamen of the

incident narrated in her complaint at Ex.P1 and she has

specifically stated in her evidence relating to the theory

of the prosecution has been narrated in the charge

sheet laid by PW.7 and her evidence finds corroborated

with the evidence of PWs.2 to 4 inclusive of evidence of

PWs.7 who is the investigating officer and so also, PW.8

being the Doctor who issued wound certificate at Ex.P5.

But the trial Court disbelieved the evidence on the part

of the prosecution and arrived at a conclusion that the

prosecution has miserably failed to prove the guilt of the

accused by facilitating the worthwhile evidence and

ended in acquittal judgment.

13. Lastly, learned HCGP contends that the trial

Court has not properly considered the evidence of PW.1

who is the victim and also gravamen of the incident

narrated in her complaint at Ex.P1. Even though the

case in Crime No.266/2013 is registered by the

Kyathsandra Police and the accused were compelling

her to take back the said complaint for which she

lodged the complaint against the accused persons.

However, the accused were extending life threat to her

and also extending life threat to her child if she does not

withdraw the case. On all these grounds learned HCGP

for State in this matter is seeking for intervention of this

Court and also re-appreciation of the evidence is very

much required, if not, there shall be miscarriage of

justice. On all these grounds, seeking to allow the

appeal and consequently, to set-aside the judgment of

acquittal rendered by the trial Court and convict the

accused persons for the charges leveled against them.

14. On controvert to the arguments advanced by

the learned HCGP for State, learned counsel Sri S.Victor

Manoharan for respondents who is appearing through

video conferencing by referring to the evidence of PW.1 -

Geetha based upon her complaint criminal law was set

into motion. But this witness was subjected to cross-

examination and incisive cross-examination has been

done. She had stated that the TVS Excel vehicle which

she was driving was damaged and an amount of

Rs.6,500/- was spent on it, and yet no complaint was

lodged by her. But PW.7 who seized the said vehicle

states that the moped was not damaged. So this only

gives room for suspicion regarding the seizure of the

vehicle as alleged by the prosecution. It is further

contended that in fact, when a specific question was put

to PW.7 about the number of cases being lodged against

the accused including the complainant by the accused,

he stated that unless he sees the records, he cannot

give any answers. This is the main argument advanced

by the learned counsel for respondents by referring to

the evidence of PW.1 who is the complainant and based

upon her complaint, criminal law was set into motion.

But the evidence of PW.1 runs contrary to the evidence

of PW.7. The overall evidence of witnesses contradict

with each other regarding seizure of the vehicle and

damage to the vehicle and same being returned to its

RC owner. Further, the evidence of PW.1 to PW.3 who

are acquainted with each other is contradictory to each

other on various aspects, including the accused

assaulting the complaint. PW.4 - Narayanappa is from

Chikkasarangi village, which is 15 kms away from

Bhovipalya and PW.5 - Krishnappa is from Manangi

and not from Bhovipalya and they are none other than

the friends of PW.3 - Rajanna. Though they are

signatories to the mahazar, but they are not the local

witnesses and they are far away from the places and in

their evidence, they admit their friendship with PW.3 -

Rajanna who is none other than maternal uncle of the

complainant. PW.6 - Lokesh has not supported the

case of the prosecution to prove the fulcrum of Ex.P3

Mahazar. If at all, the mahazar Ex.P2 is to be believed,

the investigating officer could have called for the local

witnesses, who were available at the spot. Therefore, in

view of the contradictions in the evidence of witnesses

there appears to be suspicion and certainly the benefit

of doubt has to be extended to the accused alone.

15. Further counsel for respondents has taken us

through the observations made by the trial Court while

rendering the acquittal judgment. The overall evidence

of witnesses that too be the evidence of PW.1- Geetha

and so also evidence of PWs.2 and 3 inclusive of

evidence of PW.7 who are the material witnesses on the

part of the prosecution is contradictory with each other

on various aspects inclusive of fulcrum of Exs.P2 and

P3 Mahazars. But there is no proper explanation even

regarding to the delay in lodging the complaint by PW.1

- Geetha. PW.1 - Geetha and accused persons are

relatives to each other. PW.8 had given treatment to

PW.1 and issued wound certificate as per Ex.P5.

Therefore, in view of the contradictions in the evidence

of witnesses and they being either relatives or friends of

the complainant, the theory put forth by the

prosecution cannot be accepted as there is no cogent,

convincing and corroborative evidence to establish that

the accused have committed the alleged offences as

narrated in the complaint at Ex.P1. It is contended by

the learned counsel for respondents that the trial Court

has appreciated the evidence in a proper perspective

manner. Therefore, in this appeal it does not arise for

call for intervention and so also, re-appreciation of the

evidence as urged by the State. On all these premises,

learned counsel for respondents/accused seeks for

dismissal of the appeal as being devoid of merits.

16. In these context of the contentions taken by

the learned HCGP for the State as well as the learned

counsel Shri S. Victor Manoharan for Respondents 1 to

8, it is relevant to refer to the evidence of PW-1 / Smt.

Geetha, the complainant who is a gravamen of the

incident and to the evidence of PW-7 / Channaiah being

the I.O. who laid the charge-sheet against the accused

by conducting mahazars at Exhibits P2 and P3 and so

also the specific contention made by the learned counsel

for respondents / accused.

17. Exhibit P2 is the mahazar conducted by PW-7

dated 17.12.2013 relating to the incident narrated in

the complaint filed by PW-1 at Exhibit P1. PW-4 /

Narayanappa and PW-5 / Krishnappa, the panch

witnesses who were secured have subscribed their

signatures to the said mahazar at Exhibit P2. The said

PW-4 / Narayanappa has stated in his evidence that on

16.12.2013 at around 10.00 a.m. while he was coming

from Hiredoddawadi to Bhovipalya in order to purchase

some goats, that he saw some altercation taking place

at the scene of crime and according to his evidence, the

complainant / PW-1 and Accused Nos.1, 2 and 8 were

quarrelling with each other. But he has stated that he

did not know for what reason the altercation took

among them and he also did not know the specific

reason for assault made by the accused persons on

PW-1 / Smt. Geetha and after the incident, he had

proceeded from there to his place. But PW-1 / Smt.

Geetha who is a gravamen of the incident has narrated

in her complaint that accused had formed an unlawful

assembly by holding deadly weapons and made an

attempt to take away her life and also assaulted on her

person which is revealed in the Wound Certificate at

Exhibit P5 issued by PW-8. But the evidence of PW-1

and also the evidence of PW-7 runs contrary to each

other inclusive of the fulcrum at Exhibit P2 of the

mahazar and so also the fulcrum of the mahazar at

Exhibit P3. But Krishnappa who is also one of the

signatory to Exhibit P2 being examined as PW-5,

according to his evidence, two years ago, he had been to

the plantation work at Seetakallu village and police had

come to that place and had informed about certain

persons assaulting a lady but he did not remember the

name of the lady. But PW-1 Smt. Geetha is none other

than the relative of the accused and she has lodged the

complaint by narrating the incident alleged to have been

committed by the accused on her. But PW-5 /

Krishnappa did not spell about the narration of the

incident made at Exhibit P1 and also fulcrum of the

mahazar at Exhibit P2. This witness was subjected to

cross-examination. Even in the incisive cross-

examination, nothing worthwhile has been elicited to

prove the contents of Exhibit P2. Further, once he

stated that he had subscribed his signature near the

plantation and another time, that he had subscribed his

signature to the mahazar at Exhibit P2 in the police

station. PW-5 / Krishnappa had also stated that he

knew PW-3 / Rajanna, who is a relative of PW-1 / Smt.

Geetha. At a cursory glance of the evidence of the

material witnesses, it is revealed that PW-2 /

Kamalakshi is none other than the cousin of PW-1 Smt.

Geetha and that she is one of the relatives of the

complainant. The said PW-2 / Kamalakshi has stated

in her evidence about a rape case having been

registered by the complainant against Accused No.2,

about three years prior to the incident. Based upon her

complaint, criminal law was set into motion and charge-

sheet was laid in S.C.No.125/2014, but the said case

ended in acquittal. The State did not prefer an appeal

by challenging the acquittal judgment rendered by the

Trial Court, in respect of the said rape case registered

against Accused No.2, three years ago. PW-2 /

Kamalakshi has further stated in her evidence that the

accused persons had pressurized the complainant /

PW-1 to withdraw the said complaint lodged by her.

The said fact was intimated to this witness by PW-1

complainant over phone. But no material has been

secured by the I.O. during the course of investigation in

conformity with the same as regards the accused having

insisted the complainant to withdraw the case and also

as regards the accused having extended some sort of

threat and also as regards any altercation having taken

place among the accused and also complainant PW-1,

as narrated in her complaint on the aforesaid date of

the incident.

18. PW-3 namely Rajanna is a relative of PW-1

Smt. Geetha. According to his evidence, while he was

proceeding from Hiredoddavadi towards Bhovipalya

along with PW-2 / Kamalakshi between 9.30 and 10.00

a.m., both of them had seen the accused persons

assaulting PW-1 / Smt. Geetha. Hence, both PW-2 and

PW-3 are said to have pacified both the parties to end

their quarrel and assault. The said witnesses have also

identified the accused before the court in respect of

which the accused had faced trial. According to the

evidence of PW-3 Rajanna and PW-2 Kamalakshi, these

witnesses are partisan witnesses and they are interested

witnesses on the part of PW-1 and they are the chance

witnesses. Even though witnesses have been secured to

draw mahazar at Exhibits P2 and P3, the moped vehicle

alleged to have been used by PW-1 Geetha is alleged to

have been damaged due to the incident. It was also

said to be taken away by the accused and that PW-1 is

stated to have incurred an expenditure of Rs.6,000/- to

Rs.6,500/- in order to get the said vehicle repaired. But

PW-7 being the I.O. has specifically stated in his

evidence that there was no specific damage to the

moped vehicle belonging to PW-1 Geetha. In view of the

same, a doubt arises as regards the case of the

prosecution that the allegation of vehicle damage had

been set up only for filing of complaint against the

accused, that too later on after the incident took place.

But PW-6 / Lokesh who has subscribed his signature at

Exhibit P3 this mahazar was drawn on 29.12.2013 by

PW-7 where the vehicle was there. The documents

relating to the vehicle were seized in front of the house

of Accused No.1 and thereafter the same was handed

over to PW-1. The mahazar was drawn at Exhibit P3.

On a perusal of the contents of Exhibit P3 and contents

of Exhibit P2, there was no counter signatures

forthcoming in the place where the correctional process

took place. But PW-6 Lokesh who identified the

signature has stated in his evidence that merely

because he has subscribed his signature, it cannot be

said that fulcrum at Exhibit P3 of the mahazar has been

stated and also elicited by prosecution through the

witnesses to prove the guilt of the accused. The

prosecution has treated PW-6 as a hostile witness and

even thereafter subjected to cross-examination at

length. But nothing worthwhile has been elicited to

prove the facts at Exhibit P2 mahazar or Exhibit P3 of

the mahazar drawn by PW-7. Therefore, the evidence of

PW-1 and PW-7 runs contrary to each other.

19. PW-8 / Dr. Sumithra K who provided

treatment to injured PW-1 according to her evidence, on

16.12.2013 at around 4.15 p.m., PW-1 Geetha,

daughter of Hanumantharayappa had come to the

hospital with a history of assault on two occasions, that

is on 15.12.2013 at 7.30 p.m. near the in-law's house

and on 16.12.2013 at around 10.00 a.m. near the grove

in between Hiredoddavadi and Bhovipalya. However, at

a cursory glance of the evidence of PW-1 and PW-7 on

the part of the prosecution, it is seen that they run

contrary to each other and further contradictory to the

evidence of PW-8 Doctor who issued the Wound

Certificate at Exhibit P5. The age of the wound, that is

Injury Nos.1 and 3 to 5 are not forthcoming on the part

of the prosecution. Even the same is not forthcoming in

Exhibit P3 of the mahazar and the assailants name is

also not forthcoming as regards the history of the

assault as given by PW-1 Smt. Geetha. But PW-7 who

is an I.O. who drew the mahazar at Exhibits P2 and P3

he has filed a charge-sheet against the accused relating

to the case in Cr.No.374/2013. But criminal law was

set into motion on receipt of a complaint at Exhibit P1

and based upon her complaint, Exhibit P4 of the FIR

was drawn and thereafter complied with the statutory

conditions under Section 173(2) Cr.P.C. in order to lay

the charge-sheet against the accused persons.

20. The entire case revolves around the evidence

of PW-1 Smt Geetha who is an injured and also who is a

gravamen of the incident. But merit of the statement is

an important aspect on the part of criminal justice

delivery system. It is well-known principle of law the

reliance can be based upon even solitary statement of

witness if the Court comes to the conclusion that the

said statement is the true and correct version of the

case of the prosecution. That is, in criminal justice

delivery system, credentiality must be given to the

quality of evidence. It is the quality of evidence and not

quantity which is required to be judged by the court to

place credence on the statement of witnesses. Even

appreciation of the evidence of witnesses it is not on the

number of witnesses but the quality of evidence which

is an important aspect on the part of the prosecution in

a criminal justice delivery system. There is no

requirement in law of evidence that any particular

number of witnesses are to be examined to prove /

disprove a fact. It is the principle that evidence must be

weighed and not counted. The test is whether the

evidence has a ring of trust, is cogent, credible and

trustworthy or otherwise. But in the instant case,

though the prosecution has subjected to examination in

all PW-1 to PW-8 and even got marked Exhibit P1 of the

complaint and got marked Exhibits P2 and P3 of the

mahazar and even secured Wound Certificate at Exhibit

P5 and subjected to examination PW-8 Doctor, but

nothing worthwhile evidence has been elicited by the

prosecution to prove the guilt of the accused. The Trial

Court has appreciated the evidence facilitated by the

prosecution and has rightly come to the conclusion that

the prosecution has miserably failed to prove the guilt of

the accused. But when clouds of doubt arises, the

benefit of doubt shall always accrue in favour of the

prosecution alone Accordingly, in the instant case, the

Trial Court had extended benefit of doubt. But in

criminal justice delivery system, the evidence must be

positive, cogent and corroborative to probabilise that the

incident ought to have taken place and committed by

the accused. But in the instant case, no worthwhile

evidence has been elicited by the prosecution.

Therefore, we are of the opinion that in this appeal, it

does not arise to call for interference, as there are no

warranting circumstances to re-appreciate the evidence

under the guise that the Trial Court has misdirected or

misinterpreted the evidence. In view of the aforesaid

reasons and findings, we are of the opinion that the

appeal deserves to be rejected. Accordingly, we proceed

to pass the following:

ORDER

The appeal preferred by the appellant / State

under Section 378(1) and (3) Cr.P.C. is hereby rejecte.d

Consequently, the acquittal judgment rendered by the

Trial Court in S.C.No.124/2014 dated 22.06.2016 is

hereby confirmed. If any bail bond has been executed by

the accused, the same shall stand cancelled.

Sd/-

JUDGE

Sd/-

JUDGE KS/DKB