Karnataka High Court
State Of Karnataka vs Sri. B.M. Ibrahim @ Umbai on 12 January, 2024
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CRL.A No.793 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
CRIMINAL APPEAL NO.793 OF 2017
BETWEEN:
1. STATE OF KARNATAKA
THROUGH THE C.P.I
MADIKERI RURAL CIRCLE
MADIKERI RURAL POLICE STATION
KODAGU DISTRICT
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE-1.
...APPELLANT
(BY SMT. K.P. YASHODHA, HCGP)
Digitally signed
by RUPA V AND:
Location: HIGH
COURT OF 1. SRI. B.M. IBRAHIM @ UMBAI
KARNATAKA SON OF MOIDU KUKNHI
AGED ABOUT 47 YEARS
AUTO DRIVER
VATEKADU PAISARY
HODDUR VILLAGE
BALAMURI POST
MURNAD-571252.
2. SRI. T.K. MURULI
SON OF SUBRAMANI
AGED ABOUT 48 YEARS
COOLIE, IKOLA VILLAGE
MURNAD-571252.
...RESPONDENTS
(BY SRI. SUDHANVA D.S. ADV., FOR R1 & R2)
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CRL.A No.793 of 2017
THIS CRL.A. IS FILED U/S.378(1) & (3) OF CR.P.C
PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER DATED 3.10.2016 PASSED BY THE
PRINCIPAL SESSIONS JUDGE, KODGAU, MADIKERI IN
S.C.NO.98/2012 - ACQUITTING THE RESPONDENT/ACCUSED
FOR THE OFFENCE P/U/S 307, 332, 333, 427 R/W 34 OF IPC.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
VIJAYKUMAR A. PATIL J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the State questioning the
correctness of the judgment of acquittal dated 03.10.2016
passed by the Prl. Sessions Judge, Kodagu at Madikeri in
S.C.No.98/2012.
2. Facts in brief leading to filing of this appeal are
that on 31.03.2009 at 4.45 a.m. complainant
Sri.B.P.Ganesh, ASI along with his 3 staff were on patrolling
duty in Kondangeri Junction at Murnad Town. At that time,
accused No.1 along with 2 others, came in an autorickshaw
bearing registration No.KA-12-9973 transporting black
pepper stolen from the godown of one Macharanda Kishan
Ponnappa. The complainant gave signal to stop the vehicle
in order to check. The accused tried to run over the vehicle
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on the police personnel, dashed the vehicle of the
complainant and caused grievous injuries. It is the case of
prosecution that with an intention to prevent the public
servants from discharging their duty, the accused hit the
department vehicle of the complainant bearing No.KA-12 G-
405 and caused loss and damage to the vehicle. Based on
the information, Crime No.89/2009 was registered against
the accused. After completion of investigation, charge sheet
was filed against accused Nos.1 to 3 for the offences
punishable under Sections 353, 332, 333, 427, 307 read
with Section 34 of the IPC. The Trial Court framed charges
for the aforesaid offences. The accused Nos.1 and 2 pleaded
not guilty for the charged offences.
3. The prosecution adduced evidence by examining
16 witnesses as PW-1 to PW-16, got marked 14 documents
as Ex.P1 to Ex.P14 and a material object as MO-1. The
respondents did not adduce any evidence. The Trial Court,
on appreciation of the evidence available on record, has
recorded the finding that the prosecution has failed to prove
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the guilt of the accused and proceeded to acquit the accused
of the charged offences. Being aggrieved by the judgment of
acquittal, the State is in appeal.
4. Smt.K.P.Yashodha, learned High Court
Government Pleader appearing for the appellant submits
that the Trial Court has committed grave error in
appreciating the evidence available on record. It is
submitted that the prosecution, through cogent and
consistent evidence, has proved the case beyond reasonable
doubt that on 31.03.2009 at about 4.45 a.m. the accused,
with a common intention to kill PW-1 and other police
personnel, ran over them a goods autorickshaw driven by
accused No.1. As a result PW-1 sustained grievous injuries.
It is further submitted that the Trial Court has committed
an error in appreciating the evidence of PW-1, the injured
witness who has clearly stated that the accused had an
intention to kill PW-1 and other 3 police officials on duty.
The defence counsel has cross-examined PW-1 at length.
Nothing worthy was elicited. The Trial Court has observed
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that the allegations made by the police officials are bald,
containing omissions and contradictions and further
observed that no independent witness has been examined.
It is highly improbable to examine any witness other than
the witnesses who have been examined by the prosecution
as the incident took place at 4.45 a.m. Hence, the evidence
of police personnel should have been believed without giving
much importance to minor contradictions. It is also
submitted that the Trial Court has observed that many
doubts arise from the evidence of PW-1, PW-2, PW-11 and
PW-12, but it has not disclosed those doubts. Such a
finding of the Trial Court is contrary to the evidence
available on record which is required to be re-appreciated in
the present appeal and consequently the judgment of the
Trial Court is required to be reserved.
5. Per contra, Sri.D.S.Sudhanva, learned counsel
for the respondents - accused supports the finding of the
impugned judgment and submits that there are a number of
contradictions in the evidence of the prosecution. It is
submitted that the FIR was registered at 7.30 a.m. on
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31.03.2009. However, the alleged incident took place at
4.45 a.m. and the distance between the place of incident and
the police station is very near. No reason is forthcoming for
the delay in registering the FIR. It is further submitted that
PW-1 produced torn uniform 25 days after the registration of
FIR for the reason best known to him which was seized as
MO-1. The evidence of PW-1 is contrary to his written
complaint at Ex.P1 and the evidence of other 3 police
personnel who claim to be present at the time of incident.
The Trial Court rightly recorded the finding that the evidence
of PW-1 and other witnesses are inconsistent. It is also
submitted that except police personnel no independent
witness has been examined by the prosecution to prove the
case beyond reasonable doubt. It is contended that the
accused have been falsely implicated. Hence, he seeks to
dismiss the appeal.
6. We have heard the learned High Court
Government Pleader, the learned counsel for the
respondents and perused the entire judgment and the
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evidence available on record. We are of the following
opinion.
7. PW-1 who is the injured complainant, has stated
that on 30.03.2009 he along with 3 police officials were on
night patrolling duty. They were checking the vehicles near
Kondangeri Junction in Murnad and at about 4.45 a.m. on
31.03.2009, one goods autorickshaw came from Kondangeri
village and they showed signal to stop the vehicle. However,
driver speeded the goods vehicle and tried to dash against
them. Other 3 police officials escaped but the said
autorickshaw hit PW-1, who sustained injuries on his left
side of the body. The autorickshaw proceeded towards
Virajapet. Praveen and Madappa chased the autorikshaw.
Another police constable Nanjundegowda shifted PW-1 to
Murnad outpost. It is stated that 2 other constables
brought accused No.1 Ibrahim along with the goods auto to
the outpost and informed that 2 other accused fled away.
8. He further states that he got written a complaint
by Praveen, sent it to Madikeri police station and he went to
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Madikeri Government hospital for treatment. He identified
the complaint as Ex.P1, his signature as Ex.P1(a),
photographs of the damaged bike as Ex.P2 and photographs
of goods auto as Ex.P3. In the cross-examination, PW-1
admits that the distance between the place of occurrence of
the incident and the police station is 1/2 or 3/4th k.m. and
there is a hospital opposite to the outpost. He has admitted
that early morning at about 4.45 a.m. it was too dark, there
was fog and visibility was upto 2 to 3 feet distance only. It is
admitted that if a goods auto loaded with 17 gunny bags of
pepper, can achieve speed of 20 to 25 kms per hour in the
plain surface, and if it moves upwards, its speed cannot be
more than 10 to 15 kms per hour. It is admitted that he
went to outpost along with 2 staff. There he stayed till 8
a.m. and he was admitted at Madikeri Government hospital
at 9.30 a.m. It was also admitted that complaint was
registered at 7.30 a.m. as per Ex.P1. He identified MO-1, a
torn uniform. PW-2, who was with PW-1 on patrolling duty,
has deposed that about 4.45 a.m. a goods auto came from
Kondanageri towards Murnad. Despite giving signal, the
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driver speeded the vehicle and tried to hit them and they
escaped. PW-1, ASI fell down with the department bike and
sustained bleeding injuries. He took PW-1 to outpost,
Praveen and Madappa who went to chase the goods auto
brought one person along with the auto and thereafter, PW-
1 went for treatment and he gave information to his superior
officer. In the cross-examination, PW-2 admitted that on
26.04.2009 he produced MO-1, uniform shirt before the CPI
R.Sathishkumar which was seized under the mahazar at
Ex.P4. The said statement of PW-2 clearly demonstrates
that there is a delay in producing MO-1. The alleged
incident took place on 31.03.2009 and the torn uniform of
PW-1, injured complainant was produced and seized under
Ex.P-4 on 26.04.2009 and no explanation is forthcoming for
the delay in producing MO-1. There is inconsistency
between the evidence of PW-1 and PW-2 with regard to
injury, time of taking treatment, etc.
9. PW-3 is the panch witness to Ex.P5 mahazar who
has turned hostile. PW-4 and PW-5 are mahazar witnesses
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for Ex.P6 drawn in connection with seizing gunny bags
containing pepper. The said witnesses have also not
supported the case of prosecution. PW-6 is a witness for
seizure of uniform by drawing mahazar at Ex.P4. He has
also not supported the case of prosecution. PW-7 is the
medical officer PCH, Dommasandra who stated that on
31.03.2009 at about 7.30 a.m., PW-1 came to the hospital
with the history of road accident and on examination he
found 3 injuries and he referred the patient to District
Hospital, Madikeri for further treatment. He was admitted
in the District Hospital on 31.03.2009 and discharged on
02.04.2009. He has further stated that one injury was
grievous in nature and other two injuries were simple. He
identified the wound certificate at Ex.P7 and his signature at
Ex.P7(a). In the cross-examination, he admitted that injury
No.1 was not a fracture. He also admitted that there is a
hospital situated in front of Murnad outpost. He further
admitted that he has not written in the wound certificate as
to where and how, the accident occurred. He also admitted
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that if a person falls from his own bike, then also injuries
mentioned above could be caused.
10. On close reading of the evidence of PW-1, PW-2
and PW-7, it is evident that there are contradictions with
regard to the injuries sustained by PW-1. PW-1 has not
specified in the complaint the injuries sustained by him.
PW-2 has stated that there was bleeding injuries, however,
PW-7 has not stated with regard to the bleeding injuries in
his evidence nor in the wound certificate. Hence, the
evidence of PW-1, PW-2 and PW-7 are contradictory to each
other and it gives rise to doubt the veracity in the
prosecution case.
11. PW-8 was an Inspector working in RTO, Madikeri
who inspected the vehicle and issued M.V. Accident report at
Ex.P8. In the cross-examination, he admitted that he did
not find any damage to the bike and autorickshaw. Ex.P2
and Ex.P3 are the photographs of the bike and goods
autorickshaw. PW-9 has stated that on 31.03.2009 at 6
a.m. he received a complaint from ASI Ganesh and at 7.30
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a.m. he submitted the same to the Rural police station. On
perusal of the complaint at Ex.P1, it becomes evident that
no explanation was offered by any of the witnesses for the
delay in registration of the complaint as the incident had
taken place at 4.45 a.m. Hence, it creates doubt with regard
to the testimony of PW-9 and other witnesses.
12. The prosecution has examined Sri.Praveen B.V.
as PW-11. He stated that he, Ganesh, Nanjundegowda,
Madappa were on night patrolling duty and at about 4.45
a.m., one goods autorickshaw bearing No.KA-12 9973 came
and when all four of them gave signal to stop, the driver, in
order to commit murder dashed against ASI Ganesh and,
the department bike, and went forward without stopping the
goods auto. ASI Ganesh fell down. The bike got damaged
when it fell down. He along with Madappa chased the goods
auto in his private bike and intercepted the goods auto near
the Church of Murnad. 2 inmates of the goods auto fled
away and they were able to apprehend the driver of the auto.
On enquiry, the driver stated his name as Ibrahim and he
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disclosed the names of other persons as Murali and Shashi.
On search, pepper gunny bags were found in the auto and
the driver informed that they had committed theft by
breaking open the lock of the godown situated at Yadoor of
Kannangala Village. PW-11 further stated that they took the
accused and goods auto to Murnad outpost, CPI conducted
mahazar by seizing goods auto and the pepper bags. He
identified the said mahazar as Ex.P6 and signature as
Ex.P6(a) and photo of the auto as Ex.P3. He stated that on
01.04.2009, spot mahazar was conducted at Kondangeri
junction. At that time, he was present along with Suresh
and Bopanna and drew up the mahazar at Ex.P5. In the
cross-examination, he admitted that while coming from
Kondangeri, the road is upward and it is not possible to
drive the vehicle in high speed. He states that at about 5.15
to 5.30 a.m. he came back along with accused and he does
not know whether ASI Ganesh went to the hospital prior to
coming to Murnad outpost or not.
13. The prosecution examined PW-12 who was
another eye witness and he has stated that the driver of the
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goods autorickshaw was driving in a rash and negligent
manner and tried to dash against them and 3 of them
jumped and escaped but goods autorickshaw hit ASI Ganesh
and the department bike. He along with PW-1 chased the
autorickshaw and brought the accused to outpost. This
witness identified his signature at mahazar Ex.P6. However,
in the cross-examination, he admitted that while coming
from Kondangeri, the road is upward and one cannot drive
the vehicle speedily. He further stated that he, Praveen and
Nanjundegowda were sitting by hiding at a junction behind
an iron barricade. The hiding behind the barricade by the 3
police personnel was not deposed by PW-1, PW-2 and PW-
11. He also admitted that there was fog at the time of
incident. He stated that PW-1 was sitting on his department
bike and fell down and he did not know what happened to
PW-1 on the spot since he and PW-11 went on the bike to
chase the goods auto. He stated that when they were at
Murnad outpost at 5 a.m., PW-1 was not brought to the said
outpost. But he was brought after 5 a.m. by
Nanjundegowda and PW-1 did not go to the hospital prior to
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coming to outpost. Further, PW-1 stayed in Murnad outpost
for sometime and he went to the quarters to drink water and
then to the hospital at about 5.30 a.m.
14. If the evidence of PW-1, PW-2, PW-11 and PW-12
are read together, they are self-contradictory to each other.
PW-7 has deposed that at about 7.30 a.m., PW-1 came to
the hospital. However, PW-12 eye witness deposed that PW-
1 went to the hospital at about 5.30 a.m. The narration of
events and specific mention of timings by each of the
witnesses are contrary and are not corroborating with each
other. Hence, it creates a doubt in the mind of the Court
with regard to the oral testimony of the official witnesses.
15. The prosecution has examined PW-14 who has
deposed that one person by name Shashi, a Coolie worker
informed him on 31.03.2009 at about 8 to 8.30 a.m. that the
pepper bags kept in godown were stolen. He went to
Virajpet Rural Police Station and lodged a complaint. PSI
came to the spot, inspected and received a message that
pepper bags were seized at Murnad. Hence, he went to
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Madikeri police station and saw 17 pepper bags of MK
belonged to him. The police did not tell him how 17 pepper
bags came to the possession of accused No.1. The said
admission of PW-14 which has been reiterated in the cross-
examination creates doubt with regard to seizure of 17
pepper bags from the possession of accused No.1. The
prosecution has examined PW-15 and PW-16, the person
who received the complaint and the investigating officer who
has spoken with regard to the investigation.
16. On perusal of the evidence available on record, it
is evident that the alleged eye witnesses are not consistent
with regard to the occurrence of incident, timings and the
nature of injuries sustained by PW-1. The evidence of
prosecution is full of contradictions. The prosecution has
not examined any independent witness. The prosecution
has failed to prove the case beyond all reasonable doubts
and the Trial Court has rightly come to the conclusion that
the accused Nos.1 and 2 are not found guilty for the offences
charged against them. The aforesaid finding of the Trial
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Court is based on the appreciation of evidence and the said
finding is neither perverse nor contrary to the evidence
available on record calling for interference in this appeal.
17. For the aforementioned reasons, we dismiss the
appeal.
Sd/-
JUDGE
Sd/-
JUDGE
RV
