State Of Karnataka vs Lakshya Malhothra
2022 Latest Caselaw 3679 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 04TH DAY OF MARCH, 2022

                            PRESENT

            THE HON'BLE MR. JUSTICE B. VEERAPPA

                                AND

            THE HON'BLE MR. JUSTICE S. RACHAIAH

              CRIMINAL APPEAL NO.1609 OF 2016

BETWEEN:

STATE OF KARNATAKA,
BY H.S.R. LAYOUT POLICE STATION,
BENGALURU,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILIDNG,
BENGALURU - 591 221.
                                                 ... APPELLANT
(BY SRI K. NAGESHWARAPPA, HCGP)

AND:

LAKSHYA MALHOTHRA,
AGED ABOUT 31 YEARS,
S/O CARNAL A.K. MALHOTHRA,
NO.2153, 16TH CROSS,
22ND 'C' MAIN, H.S.R. LAYOUT,
BENGALURU CITY - 571 221.
                                               ... RESPONDENT

(BY SRI R. RANGASWAMY FOR SRI MUNIREDDY,     ADVOCATES)


      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) & (3)
CR.P.C PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER DATED 14.06.2016 PASSED BY THE LXIV
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ADDL. CITY CIVIL AND S.J., (CCH-65) AT BENGALURU IN
S.C.NO.1468/2013 ACQUITTING THE RESPONDENT/ACCUSED FOR
THE OFFENCE PUNISHABLE UNDER SECTIONS 333, 353, 307 OF IPC
AND SEC.3 OF PREVENTION OF DESTRUCTION AND LOSS OF PUBLIC
PROPERTY ACT. THE SPP/STATE PRAYS THAT THE ABOVE ORDER OF
ACQUITTAL MAY BE SET ASIDE.

     THIS CRIMINAL APPEAL ON FOR HEARING              THIS   DAY,
S.RACHAIAH J, DELIVERED THE FOLLOWING:

                         JUDGMENT

The State / appellant being aggrieved by the judgment and

order of acquittal passed by the learned LXIV Addl. City Civil and

Sessions Judge (CCH-65) at Bengaluru in S.C.No.1468/2013

dated 14.06.2016, thereby acquitting the accused for the

offences under sections 333, 353, 307 of IPC and section 3 of

the Prevention of Destruction and Loss of Public Property Act.

2. Brief facts of the case are:-

PW.1 - Ranganath and PW.8 - Sunil who were serving as

Police Constables in HSR Police Station were deputed for night

patrolling duty on 6.2.2013. At about 3.00 a.m. on 7.2.2013,

they found that a car was parked near Nandini Cool Joint, 19th

Main Road, II sector, HSR Layout, Bengaluru, therefore, they

enquired the accused as to why he had parked his car during the

night hours. The accused did not reply satisfactorily. Sunil

P.W.8 a Police constable tried to take photograph in his mobile

camera, by the time, accused suddenly opened front door of the

car, the car door hit the said Sunil - PW.8 and he fell down and

sustained injury. At that moment, when PW.1 - Ranganath tried

to rescue his colleague, the accused attacked him and tried to

assault both of them. Ranganath tried to contact control room

through walky-talky, by the time, accused abused him in filthy

language and tried to snatch walky-talky, in that process,

accused took lathi from Ranganath and tried to assault him on

his head. Ranganath tried to escape from the assault. However,

the accused hit him on his right forearm, consequently, the said

Ranganath sustained injury. The accused has destroyed the

lathi and also the walky-talky. PW.1 - Ranganath, Police

Constable lodged a complaint against the accused.

3. On the basis of the complaint lodged by PW.1, police have

registered the case in Cr.79/2013 for the offences punishable

under sections. 333, 353, 307 of IPC and section 3 of the

Prevention of Destruction and Loss of Public Property Act. On

the same day, accused was apprehended and he was produced

before the Magistrate. The police have investigated the case and

filed charge sheet.

4. On committal to the Sessions court, the Sessions Court

framed the charge against the accused for the above said

offences and read over and explained in the language known to

him. However, the accused denied the said charges and claimed

to be tried.

5. In order to prove the case of the prosecution, the

prosecution has cited ten witnesses, among them eight witness

have been examined as PW.1 to PW.8 and got marked six

documents i.e., Ex.P1 to Ex.P5 and also identified 3 material

objects MO.1 to MO.3.

6. The Sessions Court after hearing both the parties and

perusing the oral and documentary evidence on record,

acquitted the accused for the above stated offences. Being

aggrieved by the said judgment, the State has preferred this

appeal seeking to set aside the judgment of acquittal.

7. We have heard learned counsel for the parties to the lis.

8. Sri. K.N.Nageshwarappa, learned HCGP representing the

State contended that the Trial Court has committed error by

ignoring and not considering the evidence of the injured and also

the wound certificate which is marked as Ex.P4. Further learned

HCGP contended that the evidence of PW.1 and PW.8 are the

most important material witnesses. Their evidence ought to

have been considered by the Trial Court. The Trial Court has

committed grave error in not considering the evidence of these

witnesses citing them as police officials and the same is

erroneous and unsustainable. Though they are the police

officials, they are the injured witnesses and they are standing

better footing than any other person. It means, they are on par

with any other injured witnesses. As such, learned HCGP

submits that the impugned judgment is contrary to the law and

requires to be set-aside.

9. Per contra, Shri.R.Rangaswamy, learned counsel for the

respondent submits that, the trial court has rightly acquitted the

accused after having considered the oral and documentary

evidence on record. Further contended that, the evidence of the

injured witnesses appears to be contradictory with regard to

injuries and spot mahazar. Both wound certificate and spot

Mahazar said to have been conducted at the same time. Hence,

he sought to dismiss the appeal.

10. In view of the rival contentions urged by the learned

counsel for the parties, the points that arise for our

considerations are:-

i) Whether the Trial Court is justified in acquitting the accused for the offences punishable under sections 333, 353, 307 of IPC and section 3 of the Prevention of Destruction and Loss of Public Property Act?

ii) Whether the appellant - State has made out a ground to interfere in the judgment of acquittal passed by the Trial Court?

11. This Court being a first appellate court, in order to re-

appreciate the entire material on record, it is necessary to have

a cursory look upon the evidence adduced by each witness and

the documents relied upon:-

a) PW.1 - Ranganath was working as Police Constable

attached to HSR Layout. He deposes that, on

07.02.2013, at about 3.30 a.m., he along with PW.8

were on patrolling duty. They noticed a car which

was parked on the side of the road. On seeing the

car, both have went near the car and asked the

inmates as to why they were sitting inside the car in

odd hours. As they did not reply properly, PW.8 -

Sunil tried to take photograph of the inmates of the

car. Then the incident of assault and destruction of

property like breaking of the lathi and also damage

of the walky-talky had taken place. Further, he

deposes that, in that incident, he sustained injuries.

He has lodged the complaint which is marked as

Ex.P1 and also witness to spot panchanama which is

marked as Ex.P2. Supported the case of the

prosecution.

b) PW.2 - Narayana Reddy was working as ASI of HSR

Layout Police Station. He has stated that, on

information given by the PW.1, he went to the spot

and also noticed that PW.1 and PW.8 had sustained

injuries at that incident and also destruction of some

properties had taken place. He further states that,

he with the assistance of other men, apprehended

the accused along with his car and came to Police

Station. He identified MO.1. He has supported the

case of the prosecution.

c) PW.3 - Charan Raj:- worked as Police Constable at

HSR layout Police Station. Hearsay witness to the

incident. Supported the case.

d) P.W.4 - Siddagangappa is the witness to Spot cum

seizure - Mahazar. Turned hostile.

e) P.W.5 Kumar. M.V -Working as Senior Medical

officer at Jayanagar Government Hospital. He is

stated to have treated the Ranganath who is said to

be the injured.

f) P.W.6 - Halagegowda:- Working as ASI at HSR

layout Police Station. He deposed that, he registered

the case in Crime No. 79/2013 and sent the same to

the Magistrate.

g) P.W.7 - Srinivasareddy - He is working as Police

Inspector at HSR Layout Police Station. Conducted

the investigation and filed the chargesheet.

h) P.W.8 - Sunil M.A.- He was working as Police

Constable. He is stated to be the injured in the said

incident.

12. It is well settled that in case of appeal against acquittal,

the scope of appeal is very limited. Our view is fortified by the

dictum of the Hon'ble Supreme Court in the case of ARULVELU

vs. STATE reported in (2009) 10 SCC 206, in para 40,

wherein it is held as under:-

"Unquestionably, the appellate court has power to review and re-appreciate the entire evidence

on record. The appellate Court would be justified in reversing the judgment of acquittal only if there are substantial and compelling reasons and when the judgment of trial court is found to be a perverse judgment. Interfering in a routine manner where other view is possible is contrary to the settled legal position crystallized by the aforementioned judgment of this court. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolstered the presumption that he is innocent. This fundamental principle must be kept in view while dealing with the judgment of acquittal passed by the trial Court."

13. By a careful reading of the above judgment of the Hon'ble

Supreme Court, clearly depicts that the accused has got double

presumption. One is the presumption of innocence is intact as

the prosecution has failed to establish the guilt of the accused

and second one is the acquittal passed by the trial court. Such

being the fact, while dealing with such acquittal appeal, a careful

reading and scrutiny is required while evaluating the evidence.

14. The present case on hand is very clear that PW.1 and PW.8

who were on patrolling duty on 7.2.2013, at about 3.00 a.m,

noticed a car and they enquired about the parking of car on the

side of the road by the accused during night hours. Though both

have enquired about the parking of the car on the road side,

that too, in odd hours the accused was sitting along with the girl,

the prosecution has not cited either the girl as accused or made

her as a witness to the incident. This creates the doubt as to

whether really the girl was present in the car with the accused or

not, as a result, the incident has really been taken place or not.

In this context, it is relevant to place the reliance on the

judgment of the Hon'ble Supreme Court in the case of STATE

OF U.P. vs. RAMVEER SINGH and Another reported in

2007(6) Supreme 164 held as follows:-

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 guilty is no less than from the conviction of an innocent.

Keeping in mind the law laid down by the Hon'ble Supreme

Court, it is relevant to deal with the case on merit.

15. PW.1, has stated that, he has sustained injuries and taken

treatment and produced Ex.P4 the wound certificate, which

indicates that PW.1 had taken treatment on 07.02.2013 starting

from 12.17 p.m. to 12.20 p.m. and at the same time, P.W.1 is

said to have been present at the time of drawing up of the Spot

Mahazar - Ex.P2, the same has been drawn on the same time

and date, which creates serious doubt. This doubt obviously

should be favour to the accused.

16. Other witnesses like PW.2, PW.3 are the police officials and

they have supported the case of the prosecution and deposed

that they have seen both PW.1 and PW.8 who were coming by

limping after the incident and further, they have noticed that the

lathi was broken and walky-talky also damaged. The evidence of

these witnesses do not inspire confidence of the court because,

these witnesses do not deposes about the girl who was present

along with the accused at that time. If really the girl was sitting

along with the accused, there was no impediment to these

witnesses to mention about her in their statement or evidence.

Such being the fact, the evidence of PW.1, PW.8, PW.2 and PW.3

are unable to inspire confidence of the court to believe their

version about the incident.

17. It is further stated that the evidence of PW.1 is very clear

with respect to the spot mahazar said to have been conducted

by the police. According to him, Ex.P2 - the mahazar which was

conducted by Investigating Officer in his presence and he has

stated that he was present from the beginning of conducting the

spot mahazar till end. Ex.P2 shows that the said mahazar was

written from 11.30 a.m. to 12.45 p.m. On contrary, in Ex.P4 -

the wound certificate the Doctor who treated PW.1 has noted

that the treatment at Jayanagar General Hospital to PW.1 was

commenced from 12.20 p.m. Such being the fact, it is difficult

to believe their version with respect to the presence of PW.1 at

the spot where the mahazar was drawn and at the same time,

he has taken treatment at Jayanagar General Hospital.

18. PW.4 who is the witness to spot mahazar supposed to

have deposed that he was present at the time of conducting the

spot mahazar and also seen some of the articles said to have

been seized in pursuance of the said mahazar. But, said witness

has turned hostile, not supported the case of the prosecution.

19. PW.5 is Senior Medical Officer, working in Jayanagar

General Hospital has stated that he has treated PW.1 and issued

the wound certificate which is marked as Ex.P4. But in his

cross-examination, he has admitted that though there is a

practice that they are mentioning the case of this nature in the

MLC register, the same has not been produced before the court.

Such being the fact, though the police officers who are

responsible officers of the jurisdictional police station sustained

injuries at odd hours, they have not at all informed to the

Medical Officer about the incident and the same has not been

mentioned as MLC which definitely creates doubt in the mind of

the court.

20. PW.7 who is also Police Inspector stated to have gone to

the spot and conducted spot mahazar as per Ex.P2 has failed to

inform the same to the Doctor about the incident and failed to

got it registered as MLC though a sub-ordinate official has

sustained injury as stated in Ex.P4.

21. In the light of the observation made above, the first point

arising for our consideration is answered in affirmative by

holding that, the Trial Court is justified in acquitting the accused

and further we hold that the appellant - State has not made out

any ground to reverse the same in this appeal.

22. Accordingly, we pass the following:-

ORDER

(a) The appeal filed by the State stands dismissed.

(b) The judgment and order of acquittal passed in

S.C.No.1468/2013 on the file of the learned LXIV

Additional City Civil and Sessions Judge (CH-65),

Bengaluru city, dated 14.06.2016 is hereby

confirmed.

Sd/-

JUDGE

Sd/-

JUDGE

Snc./bss.