Dayanand S/O Makkanna Patil vs The State Of Karnataka
2022 Latest Caselaw 4167 Kant

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                                                                R
            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

        DATED THIS THE 11TH DAY OF MARCH 2022

                           BEFORE

       THE HON'BLE MR. JUSTICE K. SOMASHEKAR

          CRIMINAL APPEAL No.200120/2016

Between:

Dayanand S/o Makkanna Patil
Age: 25 years, Occ: Driver
R/o: Kalakhora Village
Tq: Basavakalyan, Dist: Bidar
                                                 ... Appellant

(By Sri Shivanand V. Pattanashetti, Advocate)


And:

The State of Karnataka
R/by Addl. SPP High Court of
Karnataka, Kalaburagi Bench
(Through Mudabi P.S. Dist:Bidar)
                                              ... Respondent

(By Sri Gururaj V. Hasilkar, HCGP)


       This Criminal Appeal is filed under Section 374 (2) of
Cr.P.C., praying to set aside the judgment of conviction
and order of sentence dated:22.08.2016 and 25.08.2016
respectively, passed by the II Addl. District & Sessions
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Court, Bidar sitting at Basavakalyan in S.C.No.189/2014
and acquit the appellant/accused no.1.


      This appeal coming on for dictating judgment this
day, the Court delivered the following:


                        JUDGMENT

This appeal is directed against the judgment of

conviction rendered by the II-Additional District and

Sessions Judge, Bidar, sitting at Basavakalyan in

S.C.No.189/2014 dated 22.08.2016, whereby

rendering conviction against accused No.1 - Dayanand

who is appellant before this Court. This accused was

convicted by the trial Court for the offences

punishable under Sections 504 and 333 of Indian

Penal Code, 1860 (hereinafter referred to as the 'IPC')

for short) and sentenced him to undergo rigorous

imprisonment for a period of three months and to pay

a fine of Rs.1,000/- with default clause for the offence

punishable under Section 504 of IPC and to undergo

imprisonment for a period of 5 years and to pay a fine

of Rs.25,000/- with default clause for the offence

punishable under Section 333 of IPC. This appeal is

filed seeking to consider the grounds as urged and to

set aside the conviction held against the

appellant/accused No.1 and to acquit him of the

offences punishable under Sections 504 and 333 of

IPC.

2. Heard the learned counsel Sri Shivanand V.

Pattanshetti for the appellant/accused No.1 and the

learned High Court Government Pleader for the

respondent/State. Perused the judgment of conviction

in S.C.No.189/2014 dated 22.08.2016 in respect of

the accused-Dayanand. The aforesaid judgment

consisting the evidence of PWs-1 to 13 and documents

at Exs.P1 to P-19 inclusive of M.Os.1 to 5.

3. Factual matrix of the appeal are as under:

It transpires in the case of the prosecution that

in pursuance of the order/direction issued by the

superior officer that the accused persons are selling

illegal arrack in the hotel of accused No.2 during Devi

Tanda fair, on 16.01.2014 at 11.00, the complainant

and CW-6 had been to collect some sort of information

against the persons being arraigned as accused, in the

limits of Kalkhora village and they reached to that

place. The complainant and CW-6 were sitting in the

hotel of accused No.2. At that time, accused No.3

identified that they are police and therefore along with

other accused started abusing them in filthy language

saying that since one hour they are sitting in this hotel

causing inconvenience to sell arrack. As such, the

accused have picked up quarrel with the complainant

and CW-6. When they went out of the hotel, accused

No.1 namely Dayanand assaulted CW-6 with means of

stick on his left parietal region as a result of that he

sustained some bleeding injuries. In the course of

that incident, accused No.5 namely Srinath also

assaulted with means of a stick on the left parietal

region of CW-6 and as a result of that he sustained

bleeding injuries. The complainant who came forward

to veil the incident, was assaulted by accused Nos.2,

3, 4 and 6 with means of their hands and legs and

caused injuries. By this act, the accused have caused

obstacle to discharge their duty being a Government

servant. In pursuance of the act of the accused, on

the filing of a complaint by the complainant, criminal

law was set into motion by recording FIR as per

Ex.P11 for the offences punishable under Sections

143, 147, 148, 353, 332, 333, 504 read with Section

149 of IPC. PW-10 being an Investigating Officer in

part who received the complaint at Ex.P-11 filed by

Jagadevappa being a police constable and based upon

his complaint criminal law was set into motion by

recording a FIR as per Ex.P-11.

4. Subsequent to recording the FIR, the case

was taken up for further investigation by PW-13 who

conducted the investigation and laid the charge sheet

against the accused persons. During investigation,

the Investigating Officer conducted spot panchanama

as per Ex.P-3 and also recorded the statement of

witnesses and so also secured the wound certificate at

Ex.P-9 and also opinion report as per Ex.P-10 and also

conducted seizure panchanama as per Ex.P-12

inclusive of issue of sketch map as per Ex.P-13 and

laid the charge sheet against the accused before the

committal Court.

5. Subsequent to laying the charge sheet by

the Investigating Officer whereby the committal

Magistrate had passed the committal order as under

Section 209 of Cr.P.C. by following the requisite

provision of 207 of Cr.P.C. and the case has been

committed to the Court of the Sessions for trial.

Subsequent to committing the case to the Court of

Sessions and whereby heard on charge by the learned

Public Prosecutor for the State and the defence

counsel for the accused and framed the charges

against the accused. The accused did not plead guilty

but claimed to be tried. Accordingly, plea of the

accused have been recorded separately.

6. Subsequently, the prosecution let in

evidence by subjecting to examination of PWs-1 to 13

and so also got marked several documents at Exs.P1

to P19 and marked of M.Os.1 to 5. Subsequent to the

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

incriminating evidence appeared against the accused,

whereby the accused declined the truth of the

evidence of the prosecution adduced so far.

7. Subsequent to recording the incriminating

statement, accused were called upon to adduce any

defence evidence as contemplated under Section 233

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

adduce any defence evidence as contemplated under

Section 233 of Cr.P.C.

8. Subsequent to closure of the entire case of

the prosecution, the trial Court heard the arguments

advanced by the learned Public Prosecutor and so also

counter arguments advanced by the defence counsel

for the accused. On close scrutiny of the evidence of

PW-1 Jagadevappa being a Police Constable who filed

a complaint as per Ex.P-1 and so also the evidence of

PW-2 and PW-3 being the panch witnesses in respect

of Ex.P-3 and the spot panchanama, so also the

evidence of PW-8 Shankumkha who is a Police

Constable by avocation and also being the injured,

inclusive of their evidence on close scrutiny of the

evidence of PW-9 Dr. Sharnagouda and PW-10

Investigating Officer in part, recording FIR as per

Ex.P-11 and so also the evidence of PW-12 Head

Constable who received the MLC intimation relating to

the injured and so also the evidence of PW-13 being

the Investigating Officer who laid the charge sheet

against the accused persons and on close scrutiny of

the documents which were got marked on the part of

the prosecution, the trial Court has come to the

conclusion that the prosecution miserably failed to

prove the guilt of accused Nos.2 to 6 and ended in

acquittal of the offences punishable under Sections

143, 147, 148, 353, 332, 333, 504 read with Section

149 of IPC but held conviction against the

appellant/accused No.1 for the offences punishable

under Section 504 and 333 of IPC, which is

incorporated in the operative portion of the order. It

is this judgment which is challenged under this appeal

by accused No.1 urging various grounds.

9. It is the contention of the learned counsel

for the appellant/accused No.1 by referring the

evidence of PW-1 who is a complainant as per Ex.P-11

and so also in respect of PW-8 that they are Police

Constables and they were discharging their official

duty according to their contention. But the

prosecution, with a malafide intention, given up the

evidence of CW-17 who has been cited as a witness

who led his evidence as part of the prosecution even

though CW-17 being a material witness. Therefore,

the prosecution has failed to prove the guilt of the

accused relating to the material ingredients of Section

333 of IPC whereas the trial Court did not give more

credentiality to the evidence of other witnesses but

only considered the evidence of PWs-1 and 8 who are

the Police Constables and also official witnesses.

Strangely, the trial Court rendered an acquittal

judgment of accused Nos.2 to 6 but convicted the

appellant/accused No.1. The role of each one of the

accused is required to be appreciated by the trial

Court in a proper perspective. On this count alone,

the impugned judgment of conviction held against

appellant/accused No.1 for the offences punishable

under Sections 504 and 333 of IPC requires to be

intervened.

10. The second limb of argument of the learned

counsel for the appellant/accused No.1 is that the

prosecution ought to have produced the X-ray report

to prove the grievous injuries, if sustained or inflicted

to the injured person. But in the instant case the

prosecution has failed to produce the X-ray report

relating to the injured PW-8, being the police

constable. Non-production of X-ray report of the

injured creates doubt in the prosecution case. The

same has not been appreciated by the trial Court in a

proper perspective. It is further contended that

looking to the further statements of the complainant

who is examined as PW-1 that complainant came to

know the name of the appellant and other accused

after filing the complaint dated 17.01.2014. But

looking to the complaint averments complainant

specifically mentioned the name of appellant and

other accused which clearly goes to show that the

complainant with malafide intention colluding with the

police personnel who were accused in P.C.No.20/2012

filed by the appellant and just to take revenge against

the appellant the instant case has been filed. This fact

has not been properly appreciated by the trial Court.

Therefore, in this appeal it requires to be intervened,

if not intervened by re-appreciation of the evidence,

certainly the accused would be the sufferer and also

there shall be some substantial miscarriage of justice.

11. Lastly the counsel submitted that the

conviction judgment rendered by the trial Court is

liable to be set aside because the trial Court has given

more credentiality to the evidence of PWs.1, 8, 10, 12

and 13 and they are the interested witnesses and so

also official witnesses but their evidence are required

to be appreciated in a proper perspective and there is

required to be evaluated keeping in view the role of

each one of the accused and so also the credibility of

the evidence of PWs-1 and 8 who are the official

witnesses. But the trial Court failed to appreciate the

evidence in a proper perspective even though the

evidence facilitated by the prosecution are found to be

inconsistent and also lot of improvements have been

found in the evidence of the prosecution witnesses.

Therefore, in this appeal it requires re-appreciation of

the evidence as the trial Court misdirected and

misinterpreted the evidence. On all these grounds,

the learned counsel for the appellant seeks for

intervention with the judgment of conviction rendered

against the appellant/accused No.1 by the trial Court.

On all these premises seeking for allowing the appeal

and consequently setting aside the judgment of

conviction rendered against the appellant/accused

No.1 in S.C.No.189/2014 dated 22.08.2016 whereby

held conviction for the offences punishable under

Sections 504 and 333 of IPC.

12. Learned High Court Government Pleader

for State taken me through the evidence of PW-1

Jagadevappa who is a police constable and has filed a

complaint as per Ex.P-1 and based upon his complaint

PW-10 recorded an FIR as per Ex.P-11 whereby PW-1

Jagadevappa and PW-8 Shanmukha as per the

instructions issued by his superior, went for securing

some information about the person being an accused

and accordingly went to the hotel of accused No.2

Jyoti on 16.01.2014 whereby in the limit of Kalkhora

village there will be a fair of local tanda as they had

the information that in that hotel arrack is being sold

illegally. PW-1 who is the complainant and PW-8 who

is the injured were sitting in that hotel of accused

No.2. At that time, accused No.3 identified that they

are police and therefore along with other accused

started abusing them in filthy language saying that

since one hour they are sitting in this hotel causing

inconvenience to sell arrack. As such, the accused

have picked up quarrel with the complainant and CW-

6. When they went out of the hotel, accused No.1

namely Dayanand assaulted CW-6 with means of stick

on his left parietal region as a result of that he

sustained some bleeding injuries. In the course of

that incident, accused No.5 namely Srinath also

assaulted with means of a stick on the left parietal

region of CW-6 and as a result of that he sustained

bleeding injuries. The complainant who came forward

to veil the incident, was assaulted by accused Nos.2,

3, 4 and 6 with means of their hands and legs and

caused injuries. By this act, the accused have caused

obstacle to discharge their duty being a Government

servant. In pursuance of the act of the accused, on

the filing of a complaint by the complainant, criminal

law was set into motion by recording FIR as per

Ex.P11 for the offences punishable under Sections

143, 147, 148, 353, 332, 333, 504 read with Section

149 of IPC. These are all the evidence facilitated by

the prosecution by subjecting to examination of PW-1

Jagadevappa, who is a police constable by avocation

and also who is an author of the complaint at Ex.P-1

and his evidence is corroborated with the evidence of

PW-8 Shanmukha by avocation is a police constable

and also he is an injured and whereby sustained with

injuries as indicated at Ex.P-9 and also in his report in

terms of a letter at Ex.P-10 and so also the OPD Form

issued by Kalaburagi District Hospital at Ex.P-18 and

chemical analysis report as per Ex.P-19 and so also

the spot mahazar Ex.P-3 and inclusive of cloth seizure

mahazar as per Ex.P-12. All these evidences have

been facilitated by the prosecution whereby the trial

Court rightly came to the conclusion that accused

No.1 Dayanad assaulted PW-8 Shanmukha with

means of club/stick as a result of that he sustained

injuries as disclosed at Ex.P-9 wound certificate

issued by PW-9 doctor who provided treatment to

him.

13. It is the contention of learned counsel for

the appellant/accused No.1 that PW-3 who is a panch

witness of Ex.P-3 in respect of spot panchanama being

conducted by Investigating Officer in his presence and

also in the presence of PW-2 did not support the case

of the prosecution in respect of the fulcrum of the spot

mahazar to even PW-4 - Manikappa, PW-5 Bheemsha,

PW-6 Sharnappa, PW-7 Pandurang and PW-11

Mahesh. They have been subjected to examination on

the part of the prosecution and they did not support

the case of the prosecution. Merely because they did

not support the case of the prosecution even though

they are the independent witnesses but the evidence

of PW-1 Jagadevappa in respect of Ex.P-1 complaint

so also the evidence of PW-8 Shanmukha who is an

injured while they were proceeding on their duty being

Government servant and the accused persons coming

in the way by causing some obstacle to discharge

their duty, the same has been seen in the evidence of

PW-1 and PW-8 and their evidence is corroborated

with the evidence of PWs.10, 12, 13. PW-13 being

the Investigating Officer who laid the charge sheet

against the accused and further supported their

evidence that the evidence of PW-9 being a doctor

who issued the injury certificate Ex.P-9. These are all

the evidence that has been let in by the prosecution.

Merely because the aforesaid witness PWs.4, 5, 6, 8

have not been withstood with their statement, the

evidence of PW-1 and so also the evidence of PW-8

Shanmukh cannot be brushed aside and they are the

Police Constable and while they were proceeding to

their duty being a Government servant these accused

as well as other accused caused some obstacle to

discharge their duty. The same has been seen in the

evidence of PWs-1 and 8 whereby they were present

in the hotel of accused No.2 as they had information

that in the hotel of accused No.2 arrack was being

sold illegally. These are all the evidence facilitated by

the prosecution. Therefore, the trial Court has rightly

appreciated the evidence and rendered a judgment of

conviction against accused No.1 and also sentenced

accused No.1/appelant in the instant case in

S.C.No.189/2014 for the offences punishable under

Sections 504 and 333 of IPC. Therefore, this appeal

deserves to be dismissed being devoid of merits and

whereby the trail Court has rightly appreciated the

evidence and arrived at a proper conclusion and the

prosecution has proved the guilt against this

appellant/accused No.1 beyond all reasonable doubt.

14. It is in this context of the contention made

by the learned counsel for the appellant/accused-

Dayanand and so also the counter argument advanced

by the learned High Court Government Pleader for the

respondent/State and based upon the evidence of

P.W.1 who is the complainant in respect of the

complaint at Ex.P.1 and so also the evidence of P.W.8

who is the injured and both P.Ws.1 and 8 by avocation

as Police Constables and they have been discharging

their duties on 16.01.2014 at around 6.30 p.m. But,

on the aforesaid date at around 11 hours, there was

some local fair in the Kalkhora village of Devi Thanda

and whereby accused No.2 in her hotel alleged to

have been engaged in selling the arrack and therefore

P.Ws.1 and 8 were deputed and they have collected

the information about the activities of selling of arrack

in their hotel. Therefore, P.Ws.1 and 8 had been to

the hotel of accused No.2 and whereby they sat hours

together in the hotel. Therefore, accused No.3, who

identified them as police constables when they were in

the hotel, but remaining accused have unlawfully

assembled and abused them in filthy language saying

that they sat in the hotel hours together by causing

convenience to their business of sale of arrack. When

the accused persons alleged abusing P.Ws.1 and 8

and thereafter they have come out from the hotel and

in the meanwhile, accused No.1 who is an appellant

herein alleged to assaulted with means of stick by

chosing the left partial region and that P.W.8 alleged

to have been sustained some bleeding injuries, in the

meanwhile remaining accused No.5 who alleged to

have assaulted on the temporal region of P.W.8 and

as a result of that he sustained bleeding injuries.

When the complainant come forward to telling the

incident and also rescuing P.W.8 from the clutches of

the accused person and in the meanwhile, remaining

accused Nos.2 to 4 and 6 were also alleged to have

assaulted with means of hand and given a blow over

his persons. In pursuance of the act of the accused,

criminal law was set into motion by registering the

crime against the accused for the offences punishable

under Sections 143, 147, 148, 353, 332, 333, 504 r/w

Section 149 of IPC.

15. C.W.17 who is cited as an witness in the

charge-sheet laid by P.W.13 and who is a superior

officer of P.W.1 and P.W.8 and they have been

deputed for discharging their official duties to

ascertain or to collect the information regarding

business of illicit liquor and also to watch over the

aforesaid business of illicit liquor activities as there

was a fair at Kalkora, but after receipt of a credible

information regarding selling of illicit liquor i.e., arrack

in the hotel of accused No.2 and according to the

credible information and so also the deputation made

by C.W.17 being the superior officer and that P.Ws.1

and 8 went to the hotel of accused No.2 in a civil

dress and they have placed an order of brining tea

and water bottle, at that time accused No.3 refused to

supply tea and also the water bottle and that even

though they have been placed order, but the accused

Nos.2, 3 and 4 have been suspected their activities

and identified they are as police constables and

abused them in a filthy language saying as they were

coming in the way of selling of arrack in the hotel of

accused No.2, when there was such kind of incident

alleged to have been taken in the hotel of accused

No.2 by abusing in a filthy language towards the

police personnel and P.Ws1. and 8, who have come

out from the hotel and thereby all the accused

persons formed into an unlawful assembly and at that

time accused No.1 alleged to have assaulted with

means of a stick upon the left side partial region of

P.W.8 and so also alleged to have assaulted by

accused No.5 with means of another stick which was

lying on the ground on the left side temporal region of

P.W.8. As a result of that, P.W.8 sustained injuries, in

the meanwhile, P.W.1 who is the complainant by

avocation as police constable and he intervened to

pacify the incident taken place between P.W.8 who is

also one of the police constable and he was also

deputed subordinate staffs for securing the

information about some sort of a business activities

was taken inside the hotel of accused No.2, at that

time accused Nos.2, 3, 4 and 6 alleged to have been

assaulted with means of their hands and given a kick

over the stomach part of P.W.8 and also caused some

injuries over his person.

16. This allegation made against the accused

persons by filing a complaint as per Ex.P.1 and based

upon complaint, criminal law was set into motion by

recording the FIR as per Ex.P.11, but entire case was

revolving around the evidence of P.W.1 and P.W.8 and

so also the injury sustained over a person of P.W.8

indicates at Ex.P.9 of the wound certificate issued by

P.W.9 being a doctor who is subjected to provide a

treatment to him.

17. Whereas, the trial Court rendered an

acquittal judgment in respect of co-accused Nos.2 to 6

even though alleged to have been participated with

the accused No.1 who is arrayed as an appellant

before this Court. But the role of each one of the

accused in respect of the offences has been lugged

against them. But, M.Os.1 and 2 clubs two in

numbers and M.Os.3 and 4 being packet containing

mud which were collected from the scene of crime and

M.O.5 is cloth and all these material objects have

been seized by investigating officer P.W.13 who

investigated the case and laid the charge sheet

against the accused persons.

18. In pursuance of the complaint filed by

P.W.1, criminal law was set into motion by recording

FIR as under Section 154 of Cr.P.C., but subsequent

recording an FIR, the investigation officer has taken

up the case for investigation and laid the charge sheet

against the accused. But there was delay in filing of a

complaint in narrating the incident. It was alleged to

be taken place at the scene of crime. Even there was

a delay in lodging FIR, it is not fatal to the case of the

prosecution but it should explain the delay by giving

acceptable reasons, even the fact that the report was

lodged belatedly, it is relevant factor to which the trial

Court must take notice and take into consideration for

arrival of a conclusion of the incident narrated in the

complaint and so also substances made in the FIR said

to have been recorded by the police having

jurisdiction.

19. The FIR is the primary object to set the law

into motion. When the criminal law was set into

motion, then the investigation officer who has taken

up the case for investigation by following the

provisions of Section 173(2) of Cr.P.C. Even FIR itself

is not a proof of the case initiated against the accused.

Even though it is the case of evidence but it could be

used for corroborating the case of the prosecution. It

is the domain vested with the investigating agency

that keeping in view Section 154 of Cr.P.C. relating to

the nature of the offences register the crime and also

proceeding with the case for investigation. But in the

instant case, P.W.1 who is the police constable and

P.W.8 who is also a police constable and also an

injured, but the delay in filing the complaint relating

to the incident it was occurred at the scene of crime

i.e., hotel belongs to accused No.2. Strangely, in the

instant case, the trial Court rendered the acquittal

judgment in respect of the remaining accused Nos.2

to 6, but the conviction held against the appellant who

is arrayed as accused No.1 by the trial Court is under

clouds of doubts.

20. To attract section 504 of Indian Penal

Code, 1860, the prosecution must satisfy the

intentional insult with intent to prove breach of the

peace. To attract this offence, the important

ingredients to be proved, they are;

a) intentional insult;

b) Insult must be such as to give some provocation to the person insulted; and

c) The accused must intent or know that such provocation would cause another to break the public peace or to commit any other offences.

21. However, the intentional insult must be of

such a degree that should provoke a person to break

the public peace or to commit any other offences.

These ingredients must be satisfied by the prosecution

to prove the guilt against the accused by facilitating

the worthwhile evidence even one of the essential

elements constituting the offences that there should

have been an act or conduct amounting to intentional

insult and the mere fact that the accused abused the

complainant does not sufficient by itself to saying

that the ingredient of Section 504 of IPC has been

established by the prosecution, this issue has been

extensively addressed by the Hon'ble Suprme Court in

the case of Fiona Shrikhande Vs. State of

Maharashtra reported in AIR 2014 SC 957.

22. Insofar as Section 333 of Indian Penal

Code, 1860, it reveals that voluntarily causing

grievous hurt to deter public servant in the discharge

of his duty as such public servant. Even each one of

the ingredients have been voluntarily causes grievous

hurt and the injuries inflicted over the person and it is

the domain vested with the prosecution and it has to

establish through the evidence of injured by

facilitating the worthwhile evidence relating to deter

that discharging of his duty as a public servant or with

an intent to prevent or deter that person or any other

public servant from discharging his duty as such public

servant.

23. Whereas, in the instant case, Section 143

of IPC has been lugged against the accused relating to

the unlawful assembly. As per the prosecution case,

in the hotel of accused No.2, the alleged incident was

taken place. What is unlawful assembly is explained

in Section 141 of IPC. An assembly of five or more

persons is designated an "unlawful assembly", if the

common object of the persons composing that

assembly. Section 142 of IPC explains about being

member of unlawful assembly. Whoever, being aware

of facts which render any assembly an unlawful

assembly, intentionally joins that assembly, or

continues in it, is said to be a member of an unlawful

assembly. Further, Section 143 of IPC explains about

punishment of committing an offence of unlawful

assembly. Similarly, the offence under Section 147

itself provides for punishment clause for committing

an offence of rioting. But, unlawful assembly that

assemble even prior to that incident alleged to be

taken as according to their meeting of minds and even

the evidence on the part of the prosecution in respect

of Sections 143, 147, 148, 504 and 333 of IPC has

been ended in acquittal in respect of accused Nos.2 to

6. But, the conviction has been rendered against the

accused No.1, who is arrayed as appellant in the

aforesaid case whereby all the accused have faced the

trial, but there must be some nexus between the

common object and the offence committed. But,

strangely, the trial Court rendered the conviction

against the present appellant. But, Section 149 of IPC

reveals and more so it does not create a separate

offence but only declares vicarious liability of all the

members of an unlawful assembly for the act done in

the common object, this issue has been extensively

addressed by the Hon'ble Supreme Court in the case

of Vinubhai Ranchhodbhai Patel Vs. Rajivbhai

Dudabhai Patel reported in AIR 2018 SC 2472.

24. Insofar as applicability of the offence under

Section 149 of IPC relating to the common object, it

must be shown that the incriminating act was done to

accomplish the common object of unlawful assembly.

It must be within the knowledge of the other members

as one likely to be committed in prosecution of

common object. If members of the assembly knew or

were aware of the likelihood of a particular offence

being committed in prosecution of a common object,

they would be liable for the same under Section 149.

But, in the instant case, the charges were framed

against all the accused by holding as a common object

to commission of an offence, but co-accused Nos.2 to

6 and their case was ended in acquittal, but the

inference of common object even has to be drawn

from various factors such as the weapon of offence,

the act of violation committed by them and as a result

of which reveals the charge sheet even filed by the

investigating officer even jointly liable of a members

of unlawful assembly. It is settled position of law that

once a member of unlawful assembly is established, it

is incumbent on the prosecution to establish whether

any specific overtact has been assigned to any

accused. Even more membership of the unlawful

assembly is sufficient. But in the instant case, co-

accused Nos.2 to 6 have been taken a particular role,

but accused Nos.2 to 6 and their case has been ended

in acquittal, but this appellant is convicted for the

offence under Section 333 of IPC. But, when once the

benefit of doubt arise in the mind of the Court, such

benefit must be extended to the accused. But, in the

instant case, the appellant who is arrayed as accused

No.1 and more so alleged that he was assaulted with

means of M.Os.1 and 2 used for causing injuries over

the person of P.W.8. Therefore, in this appeal, it

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

accused No.1, who is arrayed as appellant No.1 would

suffer from miscarriage of justice and whereby the

prosecution did not establish the guilt of the accused

beyond all reasonable doubt.

25. Insofar as the overtact attributed against

the accused whether it is inadequate or even

adequate evidence has been facilitated by the

prosecution it is also an important factor on the part

of the prosecution to be assessed, but in the instant

case even at a cursory glance of evidence of P.Ws.1

and 8 in consonance with the averments at Ex.P.1 and

whereby the instant incident is narrated by P.W.1

being a Police Constable has to be assessed.

26. Insofar as ingredients of Section 149 of

IPC, there must be specific ingredients. Even

according to Section 141 of IPC, the assembly of five

or more person is designated as common object. If

the common object is specifically stated it should be

by means of a criminal force or it shows a criminal

force to compel any person so to do what he is not

legally bound to do, or to omit to do what he is legally

entitled to do. But mere presence in the assembly is

not sufficient and does not make such a person as a

member of an unlawful assembly unless it shows that

he had done something. As according to some sort of

a prior meeting to do the activities as a member of

unlawful assembly as even the scope of Section 149 of

IPC. Section 149 of IPC even thought it is a wider

scope and the membership and inferring the common

object and various circumstances have to be taken

into consideration and having regard to the omnibus

allegation, it is not safe to convict everyone of them

by applying Section 149 of IPC. But in the instant

case, the co-accused Nos.2 to 6 and their case was

ended in acquittal. Therefore, the benefit of doubt

which was arises in the mind of the Court by

appreciating the evidence of the prosecution and even

the doubt that would arise in the mind of the benefit,

it should be accrued on the part of the accused alone

and none else.

27. At this juncture, it is relevant to place

reliance on the judgment of the Hon'ble Supreme

Court in the case of Sharad Birdhi Chand Sarda Vs.

State of Maharashtra reported in 1984(4) SCC 116,

wherein the Hon'ble Apex extensively addressed the

issues of circumstantial evidence and held that

circumstantial evidence should be conclusive and even

the benefit of doubt and further held that if the

circumstances in the case are consistent either with

the innocence of the accused or with his guilty, then

the accused is entitled to be benefit of doubt. Legal

principles are not magic incantations and their

importance lies more in their application to a given set

of facts than in their recital in the judgment.

28. Whereas, at para No.163, it is held that;

we then pass on to another important point which

seems to have been completely missed by the High

Court. It is 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.

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

Kali Ram V. State of Himachal Pradesh reported in

SCC (Crime) P. 1060, held as under:

"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."

was ended in acquittal and more so they faced trial

along with the accused No.1, who is arrayed as an

appellant before this Court. But the trial Court was

held in conviction against this appellant for the

offences punishable under Sections 504 and 333 of

Indian Penal Code. Even at a cursory glance of

evidence of P.Ws.1 and 8 and so also the averments

made in the complaint at Ex.P.1 so also FIR at Ex.P.11

and inclusive of injuries inflicted over P.W.8 indicates

at Ex.P.9, wound certificate issued by the doctor, but

on close scrutiny of the evidence and even at a

cursory glance of the entire material evidence

inclusive of the evidence of P.W.13, the clouds and

doubt arise in the mind of the Court, but it is the

domain vested with the trial Court to appreciate the

evidence in a proper prospective and if not the

accused would be sufferer and more so there shall be

some substantial miscarriage of justice would cause

on the part of the accused.

31. It is in the instant case, it is relevant to

refer even Section 134 of the Indian Evidence Act,

1872 relating to the quality of the evidence and not

the quantity of the evidence. It is settled law that the

merit of the statement is important and also it is well

known principle of law that reliance can be based on

the solitary statement of a witness if the Court comes

to the conclusion that the said statement is the true

and correct version of the case of the prosecution. It

was extensively addressed by the Hon'ble Supreme

Court in the case of Raja v. State reported in (1997)

2 Crimes 175.

32. In the matter of appreciation of evidence of

witnesses, it is not number of a witnesses, but quality

of their evidence which is important, as there is no

requirement in law of evidence that any particular

number of witnesses is to be examined to

prove/disprove a fact. It is a time-honoured 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. The

legal system has laid emphasis on value provided by

each witness, rather than the multiplicity or plurality

of witnesses. It is quality and not quantity, which

determines the adequacy of evidence as has been

provided by Section 134 of the Indian Evidence Act.

The said principles has been extensively held by the

Hon'ble Apex Court in the case of Laxmibai (Dead)

through LRs v. Bhagwantbura (Dead) through

LRs reported in AIR 2013 SC 1204, whereas in the

instant case, it is said that the trial Court was

misdirected and misinterpreted the evidence of P.Ws.1

and 8 insofar as the appellant/accused No.1. It is the

domain vested with the prosecution to prove the guilt

of the accused by facilitating the material evidence. If

there is no evidence as facilitated by the prosecution

even by proving the ingredients of each one of the

offences, then the clouds would arise in the mind of

the Court and the benefit of doubt shall be extended

to all accused. Therefore, after having gone through

the entire material and after re-appreciating the

evidence of the prosecution both oral and

documentary and after considering totality of the

circumstances, the impugned judgment of conviction

insofar as accused No.1, who is appellant herein is

concerned, needs for interference at the hands of this

Court in extending the benefit of doubt in favour of

the appellant herein.

33. In terms of the aforesaid reasons and

findings, I proceed to pass the following:

ORDER The appeal filed by the accused No.1 under Section 374(2) of Cr.P.C. is hereby allowed.

Consequently, the judgment of conviction and order of sentence rendered against the appellant/accused No.1 in S.C.No.189/2014 dated 22.08.2016 is hereby set aside. Consequent upon setting aside the impugned judgment, the accused is hereby acquitted of the offences under Sections 504 and 333 of Indian Penal Code, 1860.

In the event appellant/accused No.1 executed any personal bond, the same shall stand cancelled.

Fine amount, if any, deposited by the appellant/accused No.1 shall be returned to him with due identification.

SD/-

JUDGE

swk/BL