Karnataka High Court
The State Of Karnataka vs Sri H S Ramesh on 2 April, 2024
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CRL.A.No.127/2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF APRIL, 2024
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE T.G.SHIVASHANKARE GOWDA
CRIMINAL APPEAL NO.127/2021 (A)
BETWEEN:
THE STATE OF KARNATAKA
BY SUB INSPECTOR OF POLICE
BANAKAL POLICE STATION
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU-560 001 ...APPELLANT
(BY SMT.SOWMYA.R., HCGP)
AND:
SRI H S RAMESH
S/O LATE SANNEGOWDA
AGED ABOUT 68 YEARS
R/AT BADVANADINNE
KOLUR VILLAGE, BANKAL HOBLI
Digitally MUDIGERE TALUK
signed by K S
RENUKAMBA CHIKKAMAGALURU DISTRICT-577 101 ...RESPONDENT
Location:
High Court of (BY SRI A.N.GANGADHARAIAH, ADVOCATE)
Karnataka
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) &
(3) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
OF ACQUITTAL DATED 27.12.2019 PASSED BY THE PRINCIPAL
DISTRICT AND SESSIONS JUDGE, CHIKKAMAGALURU IN
S.C.NO.72/2018 ACQUITTING THE RESPONDENT - ACCUSED FOR
THE OFFENCES PUNISHABLE UNDER SECTIONS 504 AND 307 OF IPC.
THIS CRIMINAL APPEAL, COMING ON FOR FINAL HEARING,
THIS DAY, K.S.MUDAGAL.J., DELIVERED THE FOLLOWING:
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CRL.A.No.127/2021
JUDGMENT
"Whether the impugned judgment and order of acquittal
in S.C.No.72/2018 passed by the Principal District and Sessions
Judge, Chikkamagaluru suffers patent illegality or impropriety ?"
is the question involved in this case.
2. The respondent was prosecuted in S.C.No.72/2018
for the charges for the offences punishable under Sections 504
and 307 of IPC on the basis of the charge sheet filed by Banakal
Police of Mudigere Taluk in Crime No.11/2017 of their police
station.
3. Crime No.11/2017 was registered against the
respondent/accused on the basis of the complaint/statement of
PW.1 as per Ex.P1 allegedly recorded by PW.6 the Head
Constable. For the purpose of convenience, the parties are
referred to henceforth according to their ranks before the Trial
Court.
4. The case of the prosecution in brief is as follows:
(i) PW.1 had occupied the house of the accused. In
O.S.No.30/1992 filed by the accused against PW.1 and another
before Munsiff Court, Mudigere, the decree for ejectment was
passed against PW.1 and other parties. In that background,
there was ill-will between PW.1 and the accused. Due to such
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grudge, on 09.02.2017 at 6.00 p.m. when PW.1 was untying his
cattle in the cow shed situated in his land bearing Survey No.55
within the limits of Banakal Police Station, the accused abused
PW.1 in foul language, insulted and annoyed him. Further he
assaulted PW.1 on the back of his neck, right ear and left side
of the waist and attempted to commit his murder. PW.1
escaped from the hands of the accused and ran towards road.
(ii) PW.2 shifted PW.1 to Government Hospital,
Mudigere. From there PW.1 was referred to higher Medical
Centre, Chikkamagalur. PW.1 was taken to Ashraya Hospital,
Chikkamagalur. When he was being treated in the said hospital,
PW.6 the Head Constable on medico legal intimation visited the
hospital and recorded the statement of PW.1 as per Ex.P1 and
handed over further investigation to PW.7. PW.7 registered the
first information report as per Ex.P11 and handed over further
investigation to PW.10 Assistant Sub Inspector of Police. PW.10
conducted further investigation and filed the charge sheet
against the accused for the offences punishable under Sections
504 and 307 of IPC.
5. The Trial Court on hearing the parties, framed the
charges against the accused for the offences punishable under
Sections 504 and 307 of IPC. The accused denied the charges
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and claimed trial. Therefore the trial was conducted. In support
of the case of the prosecution, PWs.1 to 10 were examined and
Exs.P1 to P13 and MOs.1 and 2 were marked. The accused after
his examination under Section 313 of Cr.P.C. did not lead oral
evidence. However, by way of his defence statement he
produced the following documents:
(i) Certified copy of the judgment in Crl.A.No.78/2018
on the file of Principal District & Sessions Judge,
Chikkamagaluru;
(ii) The report of the Probation Officer, Chikkamagaluru
dated 25.05.2018;
(iii) Certified copy of the judgment dated 05.09.1994 in
O.S.No.30/1992 on the file of Munsiff, Mudigere; &
(iv) Death certificate of H.B.Lokesh/brother-in-law of the
accused.
6. The Trial Court on hearing the parties by the
impugned judgment and order acquitted the accused on the
following grounds:
(i) There was inordinate delay in filing the complaint
and registering the first information report;
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(ii) There was long standing enmity between the
accused and PW.1, motive for false implication of the accused is
probabilised;
(iii) PW.1 did not disclose the name of the assailant
before the doctor when he was taken to the hospital;
(iv) No Medico Legal intimation was sent by the
Government Hospital, Mudigere about the alleged examination
of PW.1 in the hospital;
(v) There is inconsistency in Exs.P12 and P13 the
medical records issued by PWs.8 and 9;
(vi) PW.1 had implicated the accused in another case
which ended in acquittal in the hands of the Appellate Court.
That indicates that PW.1 due to his failure in the other cases
had determined to implicate him in criminal case; &
(vii) Seized articles were not sent for FSL examination.
7. Smt.Sowmya, learned HCGP reiterating the grounds
of the appeal submits that PW.1 was the injured witness and
there was no reason to disbelieve his evidence. She further
submits that photographs Exs.P2 to P5 and the medical records
Exs.P12 and P13 show that the victim had suffered injuries on
the head, horizontally on the back of neck and such injuries
could not have been caused accidentally or by self infliction. The
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evidence of PW.1 was corroborated by the evidence of PWs.2 to
4, medical evidence and the evidence of official witnesses. The
Trial Court committed patent illegality in rejecting such
evidence.
8. Per contra, Sri A.N.Gangadharaiah, learned Counsel
for the respondent submits that this being an appeal against the
order of acquittal, the scope of interference is very limited. He
further submits that the evidence on record clearly shows that
PW.1 was determined to harass the accused by any means and
basically the presence of the accused at the scene of offence
was not established. He submits that there was delay in filing
the complaint and the inconsistencies in the evidence were not
satisfactorily explained. He further submits that the Trial Court
on sound appreciation of the evidence and applicable law has
acquitted the accused and such judgment cannot be interfered
in this appeal.
Analysis
9. The Trial Court holding that the prosecution failed to
discharge its initial burden of proof has acquitted the accused.
It is the settled proposition of law that in an appeal against the
order of acquittal, the scope of interference is limited. Unless it
is demonstrated that the impugned judgment and order of
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acquittal suffers patent illegality or perversity, the Appellate
Court cannot interfere with such judgment. If on the basis of
the material on record, two views are possible, then the view
favorable to the accused has to be considered. By the order of
acquittal, the accused has double benefit namely the initial
presumption of innocence which is available to the accused in
the trial, secondly which is reinforced by the order of acquittal.
This view of ours is supported by the judgment of the Hon'ble
Supreme Court in Prem Singh v. State of Haryana1.
10. This Court has to examine this matter in the light of
the above said principles and based on materials on record. As
per the prosecution, the accused assaulted PW.1 on 09.02.2017
at 6.00 p.m., in the land of PW.1 with MO.1 and attempted to
commit his murder due to previous enmity.
11. The case of the prosecution was based on the
evidence of:
(i) PW.1 the injured witness;
(ii) PWs.2 and 4 res gestae witnesses who soon after
the incident allegedly shifted the injured to the hospital;
(iii) PW.3 son another hearsay witness;
2013(14) SCC 88
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(iv) Seizure of MOs.1 and 2 the blood stained sickle and
T Shirt of PW.1;
(v) Medical evidence of PWs.8 and 9;
(vi) The evidence of police witnesses namely PWs.6 the
Head Constable who recorded the statement Ex.P1, PW.7 Head
Constable who registered the first information report Ex.P11
and PW.10 the Investigating Officer (Assistant Sub-Inspector of
Police).
Reg. Motive:
12. The accused, PW.1 or the complainant party did not
dispute that the accused filed O.S.No.30/1992 against PW.1 and
there was enmity between them in view of the property dispute.
It is also not disputed that on the complaint of PW.1 the
accused was tried in C.C.No.410/2017 on the file of Additional
Civil Judge & JMFC, Mudigere. After trial in that case, the
accused was convicted for the offence punishable under Section
506 of IPC on 21.04.2018. Ultimately the said judgment was
reversed in Crl.A.No.78/2018 by the Appellate Court on
12.04.2019. The aforesaid facts and circumstances go to show
that there was enmity between PW.1 and the accused.
However, the motive being double edged weapon, the Court
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cannot convict the accused solely based on circumstance of
motive unless the other circumstances corroborate the same.
Reg. Evidence of PW.1 injured witness:
13. It is no doubt true that if the case is based on the
evidence of the injured witness, due credence has to be given
to such evidence. However, such evidence must inspire the
confidence of the Court.
14. In the present case, the evidence of PW.1 has to be
evaluated having regard to the fact that there was long
standing enmity between PW.1 and the accused. According to
the prosecution, the accused assaulted PW.1 on 09.02.2017 at
6.00 p.m. Soon after the incident, PW.2 had taken him to
Government Hospital, Mudigere where PW.8 examined him and
allegedly referred him to Higher Medical Centre.
15. It is also alleged that on seeing PW.1, PW.2
informed PW.4 the wife of PW.1 about the incident. PWs.2 and 4
shifted PW.1 to the hospital. PW.8 the doctor who allegedly
treated PW.1 in Mudigere and PW.9 who allegedly treated PW.1
in Ashraya Hospital have unequivocally stated that when PW.1
was brought to the hospital, he did not name the assailant.
PWs.8 and 9 both state that PW.1 told them that he was
assaulted by somebody. If the accused was the assailant, more
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particularly when the accused and PW.1 were known to each
other for long time, PW.1 could not have missed to mention his
name before the doctor while giving the history.
16. PW.4/wife of PW.1 in her cross-examination states
that the doctor enquired her and her husband both. But she did
not give the history and she did not reveal to the doctor how
her husband suffered injuries. Therefore, PW.4 accompanying
PW.2 to the hospital itself becomes doubtful.
17. As per the prosecution's own record Ex.P12 the
victim was brought to Mudigere Hospital by one Rakesh and not
by PWs.2 and 4. That creates doubt about the evidence of
PWs.1, 2 and 4 that PWs.2 and 4 learnt about the incident and
accompanied him to the hospital. Ex.P11 the first information
report shows that the alleged incident took place on 09.02.2017
at 6.00 p.m. Ex.P1 the statement/complaint was allegedly
recorded on 10.02.2017 at 6.30 p.m. The first information
report was delivered to the learned Magistrate on 10.02.2017 at
9.15 p.m. Delay of more than 12 hours in recording the
statement Ex.P1 was not explained.
18. PWs.8 and 9 do not whisper anything about sending
MLC intimation to PW.6 who claims to have recorded the
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statement on the direction of PW.10. PW.10 does not whisper
anything about he directing PW.6 to visit the hospital and
record the statement/complaint Ex.P1. There is nothing to show
that same was recorded in the presence of the doctor to lend
assurance that the same was recorded in the hospital as
alleged. Therefore there was no whisper regarding the accused
being the assailant. His name was not revealed upto 24 hours
either before the police or before the doctor.
19. To hold that the charge against the accused is
proved beyond reasonable doubt, the prosecution has to
probabilise the presence of the accused and the victim at the
alleged scene of offence. According to the accused, on the date
of the alleged incident, his sister's husband had passed away in
Chinniga village, therefore he had been to that village to attend
his cremation. PW.1 in his cross-examination admits about
death of brother-in-law of the accused in Chinniga village. The
same is further corroborated by the death certificate produced
by the accused. In his defence statement, as rightly pointed out
by the Trial Court, the accused has probabilized his defence of
alibi. The circumstances of PWs.1 to 4 not mentioning the
accused as assailant before the doctors PWs.8 and 9, inordinate
delay in filing the complaint and lack of explanation for the
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same coupled with admission of PW.1 regarding plea of alibi and
enmity between him and the accused impeaches the evidence
of PW.1.
Reg. Evidence of other witnesses and circumstances:
20. Once the evidence of PW.1 fails to connect the
accused to the crime, the evidence of PWs.2 to 4 which is only
hearsay evidence is of no use. The other circumstance relied on
by the prosecution was recovery of MOs.1 and 2 under the
alleged spot mahazar. The incident took place on 09.02.2017.
The mahazar Ex.P6 was allegedly drawn on 14.02.2017 i.e.
after five days. The scene of offence was well within the
knowledge of the witnesses as well as the police. The moment
the complaint was filed, the police should have conducted the
mahazar. But the delay in conducting such mahazar was not
explained. Though the Investigating Officer PW.10 claims that
MOs.1 and 2 the weapon of offence and T-Shirt of the victim
were seized at the scene of offence, PW.1 the victim himself in
his cross-examination states that MO.2 T-Shirt was not lying at
the spot where the mahazar was drawn. He further states that
he cannot say the time of drawing the mahazar.
21. As per Ex.P6, it was PW.1 who pointed out the place
of the accused disposing MO.1 and on that basis MOs.1 and 2
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were seized. PW.1 in his cross-examination says that he does
not remember if he had informed the police about the spot
where MO.1 was dropped by the accused. PW.5 the alleged
pancha witness to the mahazar Ex.P6 in his cross-examination
states that he does not know the contents of Ex.P6. He admits
in his cross-examination that PW.1 is his close friend. The
evidence on record shows that PW.2 was also the friend of
PW.1. Further to prove that the seized articles were stained
with blood of victim PW.1, no expert evidence was adduced.
22. The evidence on record shows that PWs.3 and 4 are
son and wife of PW.1. PWs.2 and 5 were friends. Therefore,
they were all interested in PW.1 and in seeing that his case
succeeds. The Trial Court on finding that the defence of the
accused of he being present at Chinniga village due to demise
of his brother-in-law was probabilized, the aforesaid material
inconsistencies and contradictions in the evidence of the
witnesses, unexplained delay in recording the statement Ex.P1,
registering the first information report and failure of the
Investigating Officer to collect blood sample of PW.1 to match
with the blood stains found on MOs.1 and 2, rightly held that
the charge brought against the accused was not proved beyond
reasonable doubt. The impugned judgment and order does not
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suffer any illegality or perversity warranting interference of this
Court. The appeal deserves no merit. Hence, the following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
KSR
