The State Of Karnataka vs Shekhappa S/O Ningappa Rummagol ...
2022 Latest Caselaw 4849 Kant

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                                                    R
           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

        DATED THIS THE 16TH DAY OF MARCH 2022

                         PRESENT

       THE HON'BLE MR. JUSTICE K. SOMASHEKAR

                           AND

 THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE


         CRIMINAL APPEAL NO.200047/2014

Between:

The State of Karnataka,
Through Deval Ganagapur Police Station,
Represented by its
Addl. State Public Prosecutor.
                                          ... Appellant
(By Sri Prakash Yeli, Addl. SPP)

And:

1. Shekhappa S/o Ningappa Rummagol,
   Age : 53 years, Occ. Coolie,
   R/o Hasargundagi, Tq : Afzalpur,
   Dist : Gulbarga.

2. Ningappa S/o Shekhappa Rummagol,
   Age : 29 years, Occ : Coolie,
   R/o Hasargundagi, Tq : Afzalpur,
   Dist : Gulbarga.

3. Laxman S/o Shekhappa Rummagol,
   Age : 26 years, Occ : Coolie,
                             2



  R/o Hasargundagi, Tq : Afzalpur,
  Dist : Gulbarga.

4. Ravi S/o Shekhappa Rummagol,
   Age : 21 years, Occ : Student,
   R/o Hasargundagi, Tq : Afzalpur,
   Dist :Gulbarga.

5. Devakki W/o Shekhappa Rummagol,
   Age: 43 years, Occ: Household,
   R/o Hasargundagi, Tq : Afzalpur,
   Dist: Gulbarga.

6. Parvati W/o Neelappa Rummagol,
   Age : 53 years, Occ : Coolie,
   R/o Hasargundagi, Tq : Afzalpur,
   Dist : Gulbarga.
                                          ... Respondents

(R1 - Died;
By Sri Shivasharana Reddy, Advocate for R2 to R6)


      This Criminal Appeal is filed under Section 378(1)
and (3) of the Code of Criminal Procedure, praying to set
aside the judgment and order of acquittal dated
25/27.09.2013 passed by the Prl. Sessions Judge,
Gulbarga in Sessions Case No.180/2011 thereby acquitting
the respondent-accused for the offences punishable under
Sections 143, 148, 323, 324, 307, 504 and 506 read with
Section 149 of IPC and to convict and sentence the
respondent/accused for the aforesaid offences.


     This appeal coming on for final hearing this day,
K. Somashekar J., delivered the following:
                            3



                        JUDGMENT

This appeal is directed against the judgment of

acquittal rendered by the court of the Principal

Sessions Judge at Kalaburagi in Sessions Case

No.180/2011 dated 25/27.09.2013, acquitting the

accused of the offences punishable under Sections

143, 148, 323, 324, 307, 448, 504 and 506 read with

Section 149 of Indian Penal Code, 1860.

2. This appeal is preferred by the State with a

prayer set aside the acquittal judgment rendered by

the trial court and to convict the accused of the

offences for which the charges levelled against them.

3. Heard the learned Additional State Public

Prosecutor for State and the learned counsel Sri

Shivasharana Reddy for respondent Nos.2 to 6.

Perused the judgment of acquittal rendered by the

trial court in Sessions Case No.180/2011 and the

records consisting of the evidence of PWs.1 to 17 and

so also the documents at Ex.P.1 to Ex.P.14 inclusive

of MOs.1 to 4.

4. Factual matrix of the appeal are as under:-

It is transpired in the case of the prosecution

that on 06.06.2010 at around 9.30 p.m. when the

complainant-Suresh along with his family members

namely CWs.6 to 9 were all present inside the house

and were watching the television. Then the accused

No.1-Shekhappa and accused No.2-Ningappa alleged

to have trespassed into their house and abused the

complainant in a filthy language and insisted he

minimizes the television sound or switch off the

television. It is said that there was some exchange of

words between the complainant and the accused. It is

said that later accused Nos.1 and 2 have turned to

their house. It is further alleged that later again the

accused entered into the house of the complainant

along with the co-accused No.3 - Laxman and accused

No.6-Parvati by holding deadly weapons such as axe,

jambiya and clubs to kill the complainant.

It is further alleged that all the accused having

trespassed into the house of the complainant again

abused the complainant and others in filthy language

and accused No.2-Ningappa allegedly assaulted the

complainant with an axe on his head and caused

injuries. It is alleged accused No.3-Laxman stabbed

the complainant with Jambiya. It is said that CW.9-

Bailappa intervened to rescue the complainant.

However, accused No.3-Laxman assaulted CW.9-

Bailappa on his left side shoulder and caused a

bleeding injury. Accused No. 2 Ningappa was also

alleged to have assaulted CW.9-Bailappa with an axe

on the backside of his head and caused some bleeding

injuries. Accused No.1-Shekhappa assaulted CW.8-

Laxman with a club on his left ear and also on the

forehead as a result of that caused bleeding injuries.

Accused No.1-Shekhappa alleged to have assaulted

CW.8-Laxman with the club on his left ear and also on

the forehead as a result of that caused bleeding

injuries. Accused No.1 assaulted CW.6-Vijayakumar

with a club on his head and also on the forehead and

right shoulder. Accused No.5-Devakki alleged to

dragged Savita by pulling her hair. Accused No.6 is

alleged to have assaulted Savita with a club below her

thigh and also on her back.

On the filing of a complaint by the complainant

criminal law was set into motion by registering the

case in Crime No.54/2010 by Devalganagapur Police

Station for the offences reflected in the first

information report (FIR). Investigating Officer has

investigated the case and laid the charge sheet

against the accused in C.C.No.52/2011 to the court of

Civil Judge and JFMC, Afzlapur.

5. After the filing of the charge-sheet against

the accused by the investigating officer and the case

was committed to the court of Sessions under

Sections 209 of the Code of Criminal Procedure by

following the provision of Section 207 of the Code of

Criminal Procedure. Subsequently, the case is

registered as S.C.No.180/2011.

6. Sessions court heard the learned Public

Prosecutor and the defence counsel and framed the

charges against the accused persons for the offences

punishable under Sections 143, 147, 148, 448, 323,

324, 307, 504 and 506 read with Section 149 of

Indian Penal Code 1860. The accused did not plead

guilty but claimed to be tried. Accordingly, a plea of

the accused was recorded separately.

7. After framing of charge against the accused

the prosecution led evidence of PWs.1 to 17 and got

marked Ex.P.1 to Ex.P.14 and so also got marked

MOs.1 to 4. After the closure of the evidence on behalf

of the prosecution statement under Section 313 of the

Code of Criminal Procedure was recorded. The

accused have denied incriminating the evidence

brought out by the prosecution. The accused have not

led the defence evidence as contemplated under

Section 233 of the Code of Criminal Procedure.

8. After hearing the submissions of the

prosecution and the defence the trial court concluded

that the prosecution did not facilitate worthy evidence

to prove their case. The trial court concluded that

evidence is contradictory and inconsistent to each

other with the evidence of PW.4-Arunkumar and the

evidence of PW.9-Sikandar and PW.3-Vijayakumar

and the evidence of PW.17 Manjunath the PSI who

investigated the complaint.

9. On scrutiny of the evidence on record

inclusive of MOs.1 to 4 said to have been seized by

PW.17 being an Investigating Officer trial court held

that the guilt against the accused is not established

beyond all reasonable doubt. The trial court held the

prosecution case is suffering inconsistency and

discrepancy and there is a delay in recording the

complainant and also delay in transmitting the FIR

said to have been recorded by PW.16 and the trial

court has come to the conclusion that the prosecution

has failed to prove the guilt against the accused

beyond all reasonable doubt and a rendered an

acquittal judgment.

10. Whereas the learned Additional State Public

Prosecutor for State in this appeal taken us through

the evidence of PW.12 who is the complainant and

also injured eyewitness. It is submitted that he has

specifically stated in his evidence how the alleged

incident has taken place and also the specific overt act

attributed against each one of the accused. However,

the trial court had discarded the evidence of PW.12

who is the author of the complaint at Ex.P.11 and this

complaint.

11. It is urged by the appellant that the

evidence of PW.12 who is an author of the complaint

at Ex.P.11 and PWs.3 and 4 who are the eyewitnesses

have supported the prosecution theory. Merely

because PW.4 did not support the case of the

prosecution; it cannot be the ground to extend the

benefit of the doubt and the same will not cut at the

root of the prosecution case. It is urged that said

witnesses has categorically stated in their evidence

relating to the role of each one of the accused and

injuries caused by the accused. It is urged that injury

certificates at Exs.P.3, Ex.P.4, Ex.P.5, Ex.P.6 and

Ex.P.7 support the case of the prosecution and PW.5

being a Doctor in District Hospital, Kalaburagi has

given treatment to them. However, the prosecution

has disbelieved their evidence highlighting minor

contradictions and acquitted the accused. Hence it is

prayed to allow the appeal by re appreciating the

evidence.

12. The second limb of the argument has been

advanced by referring to the evidence of PW.11.

Though this witness has stated in his evidence relating

to the incident, and though the prosecution has

successfully proved the guilt against the accused

relating to the motive factor and also causing for

injuries on the injured merely because of some minor

contradictions and minor inconsistencies trial court

could not have acquitted the accused. The trial court

has given more credentials to minor contradictions

and also some inconsistencies in the evidence of the

prosecution. It is urged that though Investigation

Officer has not made any efforts to examine the

Doctor of the Vatsalya Hospital where the injured have

been taken a higher treatment same is not fatal to the

case as the doctor who initially treated the injured is

examined. It is also urged that evidence of PW.3-

Vijayakumar and Pw.9-Sikandar would prove the guilt

and prayed to convict the accused by setting aside the

impugned judgement.

13. Per contra, learned counsel Sri Shivasharan

Reddy for respondent Nos.2 to 6 countering the

argument advanced by the learned Additional State

Public Prosecutor for State would that wound

certificate issued by PW.5 who is a Medical officer

who is alleged to have given treatment to the injured,

does not reflect the injuries on Suresh who arrayed as

PW.12, who is said to have sustained an injury i.e.,

lacerated wound on the right parietal region on the

scalp area. He is said to have been examined in the

District Hospital, Kalaburagi at around 1.25 a.m. in

the night hours on 07.06.2010 and he was

accompanied by one Vijayakumar who is examined as

PW.3. If really that PW.12 who is an author of the

complaint at Ex.P.11 had sustained some injuries on

the head i.e., and if such injures were cut injuries

causing bleeding, and an abrasion on the right side of

his rib on account of accused No.3-Laxman piercing

him with jambiya then those injuries must have

necessarily found in the wound certificate. This

inconsistency in the evidence of the prosecution or

even in the discrepancy between the oral evidence of

the complainant i.e., PW.12 and the evidence of

PW.5-Doctor would create serious doubt in the mind

of the court. In the cross-examination, PW.12 who is

an author of the compliant Ex.P.11 has specifically

stated in the cross-examination that he was also

sustained injuries and the cloth worn by him was

stained with blood. However bloodstained clothe worn

by him was not produced before the police. PW.15-

Bailappa has also been subjected to examination on

behalf of the prosecution and also subjected to cross-

examination. Even at a cursory glance, the cross-

examination of this witness reveals that there was

bloodstain at the scene of the crime and he assisted

the injured in sending them in an ambulance to the

hospital and that their clothes were stained with the

blood. PW.8-Laxman has stated that blood was oozing

on the head of Suresh and his clothes were stained

with the blood and also the blood-stain was found at

the scene of the crime. How for this evidence given by

the witnesses on the part of the prosecution could be

accepted as a whole, relating to the theory put forth

by the prosecution. In the instant case, no blood-

stained clothes of any of the injured persons have

been recovered by PW.11 being an Investigation

Officer who laid the charge sheet against the accused

and he did not whisper anything about the blood-

stains. Insofar as the blood-stains found at the scene

of the crime, the documentary evidence even

available on the record are not credible. The spot

mahazar at Ex.P.1. is drawn by PW.16 being an

Investigating Officer in the presence of the panch

witnesses. It reveals that there was no bloodstain at

the scene of the crime. Investigating Officer who is

examined as PW.17 did not take care even to collect

the blood-stained clothes which the injured persons

were wearing at the time of the alleged incident

narrated in a complaint filed by PW.12 which is

marked at Ex.P.11. Even on scrutiny of the evidence,

it is evident the Investigating Officer has failed to

effectively probe in the matter relating to the incident

narrated in a complaint at Ex.P.11. He failed to

recover blood-stained clothes if any if injured persons

have sustained. He should have taken steps to

recover the same to lay of a charge-sheet against the

accused for an offence punishable under Section 307

of IPC and such other offences whereby charges were

levelled against the accused persons. On scrutiny of

this evidence, doubt arises in the mind of the court

about the credibility of the evidence of the injured

witnesses. The benefit of the doubt must always go in

favour of the accused alone in the criminal justice

delivery system.

14. Whereas, the trial court has given an

opinion in respect of the ingredients of each one of the

offences lugged against the accused relating to

unlawful assembly, with a common object to commit

an offence and also armed with a deadly weapon to

commit the act of rioting by holding a deadly weapon.

15. PW.6 is the mahazar witness. Ex.P8 is the

mahazar. PW.7 is also one of the witnesses for the

recovery mahzor. The evidence of these witnesses

reveals that the mahazar is not proved.

16. Proof of guilt of the accused, it is domain

vested with the prosecution. It should be proved by

facilitating credible evidence. Evidence of all the

injured witnesses must be quite consistent and also

must be cogent. There should not be a material

omission or even a contradiction in the theory of the

prosecution. The trial court has concluded that the

prosecution has proved the guilt of the accused

beyond all reasonable doubt and rendered a conviction

judgment. Even at a cursory glance of the evidence of

the injured witnesses such as evidence of PWs.8, 13,

14 and 15, it can be concluded that their evidence

runs contrary to the evidence of PWs.2, 4 and 9 even

though they are the eyewitnesses on the behalf of the

prosecution.

17. scrutiny of evidence reveals that on

account of the previous enmity between the accused

and the complainant as stated by PW.8-Laxman who

has specifically stated in his cross-examination that

due to dispute over the pathway that there was some

enmity and some quarrel between the complainant's

group and also the group of accused. But all these

aspects would make out the trial court be cautious

while scrutinizing the evidence of the injured

witnesses. The delay in registering the complaint and

also dispatching the complaint by the investigating

agency after recording an FIR is not properly

explained.

18. PW.3 does not say specifically that who

had secured the ambulance 108 by making a phone

call and carried the injured persons to the District

Hospital, Kalaburagi for providing treatment to them.

Even PW.3 does not say anything in his evidence as to

the aforesaid aspect of securing 108 ambulances and

shifting the injured to the Government Hospital,

Kalaburagi. PW.3-Vijayakumar is not consistent with

the theory put forth by the prosecution. The

prosecution evidence available on the record as to

how the injured persons were brought to the hospital

itself is not inconsistent and are contradictory. These

are all the evidence that has been appreciated by the

trial court. Evidence of P.W.17 being an Investigating

officer who has recovered axe at Hasargundagi

Village, Afzalpur Taluk, at the instance of accused

No.2-Ningappa and Jambya at the instance of the

accused-Laxman is not credible. The name of

Ningappa the accused is not found at the house

though it is stated that at his instance the alleged

object of the axe was seized by the Investigating

Officer. A combined reading of the evidence of PW.7 in

respect of Ex.P.9 and the evidence of PW.17

Investigating Officer reveal inconsistency and

contradictions in the theory as put forth by the

prosecution.

19. In the light of the discrepancies or even the

inconsistency found on the material aspects in the

evidence of the prosecution and even the evidence of

the injured witnesses inclusive of the evidence of

PW.12 being a complainant and in the backdrop of the

record which discloses that there was previous enmity

between the accused person and the injured the

prosecution theory does not inspire confidence. When

there was an animosity between the two families quite

naturally there shall be an exaggeration in the

statements for securing the conviction. But PW.12-

Suresh who is a complainant and Pw.8-Laxman being

the brother of the complainant and PW.13-

Vijayakumar who is the blood relative, PW.12 is the

uncle, PW.14-Savita who is the wife of the

complainant and PW.15-Bylappa being the brother of

the complainant are all the family members. The

incident alleged to have been taken place during night

hours. It is said to have taken place inside the house

of PW.12-Suresh at around 9.30 p.m. But at a cursory

glance, the evidence of the prosecution reveals

serious lapses and even lacuna in the prosecution

case. Thus prosecution has miserably failed to prove

the guilt against the accused by facilitating worthy

evidence. Accordingly, the trial court extended the

benefit of the doubt and rendered an acquittal

judgment. Scrutiny of the evidence of PW.12, PW.13

and PW.15 also reveals inconstancy and also

discrepancy.

20. No endeavour was made to secure the

Doctor from Vatsalya Hospital, Kalaburagi who gave

treatment to the victims. All these aspects have been

considered by the trial court in rendering an acquittal

judgment. Therefore, in this appeal does not arise for

call for interference is the contention made by the

learned counsel for the respondent No.2 to 6 and

prays for the dismissal of the appeal preferred by the

appellant/State.

21. Chapter 8 of the Indian Penal Code deals

with offences against public tranquillity. S.

Section 141 of Indian Penal Code 1860, deals with

unlawful assembly. But determining the existence of a

common object the court is always required to see the

circumstances in which the incident had taken place

and also to conduct of the members of the unlawful

assembly including the weapons allegedly carried or

used at the scene of the crime. Even common objects

may form on the spur of the movement. But Section

143 of the Indian Penal Code is the penal provision for

being a member of an unlawful assembly. But in the

instant case, several allegations have been levelled

against the accused. Under S.149 of the l Code 1860,

every member of unlawful assembly is guilty of an

offence committed in prosecution. Section 149 does

not create separate offences but only declares

vicarious liability of all members of unlawful assembly

for acts done in the common object.

22. However the evidence on record is running

contrary to the evidence each other evidence. Pw4 te

alleged eye witness has turned hostile. It is contrary

to the evidence of PW.3-Vijayakumar who is also an

eyewitness on behalf of the prosecution. But the

evidence of PWs.12, 13, 14 and 15 said to be

eyewitnesses do not support the prosecution theory.

No attempt is made to secure the Doctor from

Vatsalya Hospital relating to proof of the injury said to

have been sustained by the victims.

23. The trial court has given a finding relating

to the evidence of PW.5 in respect of the wound

certificate at Ex.P.3 to Ex.P.7. No doubt the Medical

Officer has opined in respect of the injuries mentioned

in the wound certificate. But the opinion was based on

the report which has been received from the Vatsalya

hospital. But PW.5 is a Doctor who has been subjected

to the examination. The evidence is based on the

report sent by Vatsalya Hospital, which is not before

the court. It is to domain vested with the prosecution

to prove the guilt of the accused by facilitating the

worthy evidence. PW.5 being a Doctor He is not a

radiologist nor has he mentioned the radiologist's

name while recording the final opinion report and also

not mentioned in the x-ray number. In the absence of

relevant materials evidence, it is not possible to hold

that injuries are inflicted by the accused.

24. Under Section 3 of the Indian Evidence Act,

1872 even minor contradiction and inconsistency in

the testimony of an injured eyewitness do not make

him an untrustworthy and unreliable witness. But in

the instant case evidence of the injured witnesses and

the PWs-3 and 4, PW-12 who is the author of the

complaint at Ex.P-11 and so also the substances

narrated at Ex.P-12 FIR recorded by PW-16,

contradicts the theory of prosecution.

25. Insofar as the interested witness is

concerned, it has been held that the relationship is not

a factor to affects the credibility of witnesses. The

testimony of injured eyewitnesses cannot be rejected

on the ground that they were the interested

witnesses. However, in the instant case, the injured

has been subjected to examination and even the

injury certificates have been issued by PW-5 and he

has also been subjected to examination. But the

Court must scrutinize the evidence and see the

acceptability of the evidence. The trial Court has

cautiously assessed the evidence of the prosecution.

But there are inconsistencies in their evidence and

evidence of eyewitnesses is contradictory to each

other and further their evidence is contradictory to the

evidence of PW-12 - Suresh who is also said to be an

eyewitness and the author of the complaint at

Ex.P.11. Where material contradictions are creating

reasonable doubt then such evidence of eyewitnesses

cannot be relied upon to convict the accused. This

aspect is addressed by the Hon'ble Supreme Court in

the case of Nathia vs. State of Rajasthan reported

in 1999 Cri LJ 1371.

26. The law of evidence does not require any

particular number of witnesses to be examined in

proof of a given fact. However, faced with the

testimony of a single witness, the Court may classify

the oral testimony of a single witness, the Court may

classify the oral testimony into three categories,

namely (i) wholly reliable, (ii) wholly unreliable, and

(iii) neither wholly reliable nor wholly unreliable. In

the first two categories, there may be no difficulty in

accepting or discarding the testimony of the single

witness. The difficulty arises in the third category of

cases. The Court has to be circumspect and has to

look for corroboration in material particulars by

reliable testimony, direct or circumstantial, before

acting upon the testimony of a single witness. This

has been extensively addressed by the Hon'ble

Supreme Court in the case of Lallu Manjhi v. the

State of Jharkhand, reported in AIR 2003 SC 854.

In the instant case, even the injured witnesses have

been subjected to examination and even eyewitnesses

PWs-3, 4 and 9 have been examined coupled with the

evidence of PWs-10 and 17. PW-17 was an

Investigating Officer who investigated the matter and

laid the charge sheet. Their evidence runs contrary to

each other and there is no cogent corroboration and

positive preponderance that the accused have

committed the alleged offence by holding the deadly

weapons with a common object.

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

quantity of the evidence which is required to be

judged by the Court to place credence on the

statement of witnesses. This issue was extensively

addressed by the Hon'ble Supreme Court in the case

of State of Uttar Pradesh vs. Kishanpal reported

in 2008 (8) JT 650. Whereas in this appeal learned

Additional SPP for the State who has taken us through

the evidence of injured witnesses such as PWs-12, 13,

14 and 15 and the evidence of PW-8. PW-8 and 15

have sustained grievous injuries and the same is

indicated in the injury certificate issued by the doctor.

But PWs-3, 4 and 9 being the eyewitnesses have been

subjected to examination on the part of the

prosecution to prove the guilt of the accused. Several

counts of offences have been levelled against the

accused. On scrutiny of the evidence which is

facilitated by the prosecution, guilt beyond all

reasonable doubt is not established. Though the

witnesses sustained injuries and also have taken

higher treatment at Vatsalya Hospital, the prosecution

did not make any endeavour to produce the X-ray

report. Even the evidence of PW-5 in respect of the

injuries and nature cannot be accepted. The same

has been observed by the trial Court. In the absence

of the evidence of medical officer of Vatsalya Hospital

who has given treatment to the injured persons the

trial Court has concluded that the prosecution did not

make any endeavour to prove the guilt of the accused

beyond all reasonable doubt relating to the injuries

inflicted and the injuries inflicted with means of

M.Os.1 to 4 alleged to have been used by the

accused.

28. Trial Court has appreciated the evidence of

the witnesses and also the evidence of the injured

witnesses to hold that the prosecution has failed to

establish the guilt against the accused beyond all

reasonable doubt. The case of the prosecution suffers

from inconsistencies, discrepancies and there is a

delay in recording the complaint and even

transmitting the FIR to the Court. These aspects have

been discussed by the trial Court and concluded that

the prosecution has miserably failed to prove the guilt

of the accused beyond all reasonable doubt.

Therefore, there are no grounds for interference with

the acquittal judgment rendered by the trial Court.

Therefore for the aforesaid reasons and findings, we

are of the considered opinion that the acquittal

judgment rendered by the trial Court does not suffer

from any perversity or absurdity or any infirmity

calling for any interference. Consequently, the

acquittal judgment rendered by the trial Court

deserves to be confirmed. Accordingly, we proceed to

pass the following:

ORDER

The appeal preferred by the appellant/State

under Section 378 (1) & (3) of Cr.P.C. is hereby

rejected. Consequently, the acquittal judgment

rendered by the trial Court in S.C.No.180/2011 dated

25/27.09.2013 is hereby confirmed.

However, any bail bond executed by the

accused/respondent shall stand cancelled.

SD/-

JUDGE

SD/-

JUDGE

sn/swk