Karnataka High Court
Sri Pavan vs State Of Karnataka By on 3 July, 2024
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CRL.A No. 401 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO. 401 OF 2014
BETWEEN:
SRI. PAVAN
S/O LATE S.C. MUNIYAPPA
AGED ABOUT 21 YEARS
R/AT NO.707, 58TH CROSS
II CROSS, 15-F BUS STOP
KUMARASWAMY LAYOUT
BANGALORE-560 071.
...APPELLANT
(BY SRI. KARTHIK V., ADVOCATE)
AND:
STATE OF KARNATAKA BY
CHIKKAJALA POLICE
BANGALORE
...RESPONDENT
Digitally signed by
SHAKAMBARI
(BY SRI. K. NAGESHWARAPPA, HCGP)
Location: HIGH
COURT OF
KARNATAKA THIS CRL.A. IS FILED U/S. 374(2) OF CR.P.C PRAYING
TO SET ASIDE THE ORDER DATED:14/28.3.14 PASSED BY THE
V ADDL. DIST AND S.J., DEVANAHALLI IN S.C.NO.61/12 -
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
P/U/S 341 AND 307 OF IPC AND THE APPELLANT/ACCUSED IS
SENTENCED TO UNDERGO R.I. FOR 3 YEARS AND SHALL PAY
FINE OF RS.30,000/- (RUPEES THIRTY THOUSAND), IN
DEFAULT OF PAYMENT OF FINE, HE SHALL FURTHER UNDERGO
R.I. FOR A PERIOD OF 1 YEAR FOR THE OFFENCE P/U/S 307 OF
IPC.
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CRL.A No. 401 of 2014
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Appellant-accused has challenged the judgment of
his conviction and order of sentence dated 14.03.2014 in
Sessions Case No.61/2012 and order of sentence dated
28.03.2014 passed by the V Addl. District and Sessions
Judge, Devanahally, Bengaluru Rural District, convicting
him for the offences punishable under Sections 504, 341,
307 of IPC and sentencing him as under:
2. The parties to this appeal are referred to as per
their rank before the trial Court for the sake of
convenience.
Proceeding before the trial Court:
3. PW.1 V.M.Vijaya, the mother of victim girl filed
a complaint before the Chikkajala Police Station stating
that, her daughter Kum.Lavanya was studying in the final
year B.Com at Presidency College, Kempapura, Bengaluru.
Their residential quarters is situated at Government
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Hospital compound, Bettahalasuru of Bengaluru North
Taluk. In their quarters, PWs.1, 2 and other children are
staying. PW.2 used to attend her classes and returning
home in the afternoon. Thereafter, she used to attend the
coaching classes at Yelahanka Upanagara between 2.30
p.m and 4.30 p.m.
4. It is specifically stated in the complaint - Ex.P1
that, accused stated to be a choreographer and teaching
dance at Presidency College. It is stated that, PW.2 and
accused were known to each other and both started loving
each other. It is alleged that, one month prior to the
incident, when PW.2 was attending her tuition classes,
accused told her that, he is loving her and wants to marry.
But, PW.2 flatly refused. Thereafter, accused went to the
house of PW.1 and requested this PW.1 to perform his
marriage with PW.2 as she is loving him. But, PW.1
advised him not to indulge in such love affair. Thereafter,
it is alleged that accused was insisting PW.2 to love him
and marry him.
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5. It is alleged by the complainant that, as usual
on 17.11.2011, PW.2 Lavanya came from College. As it
was a holiday for her tuition classes, she was in the house.
At about 4.00 p.m. accused came to the house of PW.1
and insisted PW.1 to arrange his marriage with Lavanya.
But, PW.1 told him that they are not interested to arrange
marriage of PW.2 with him and further told that, if her
husband and son got the knowledge of this fact, it will
become very serious and warned him not to come to the
house. It is alleged that, at 5.30 p.m. PW.2 wanted to go
to Yelahanka Dairy Circle to get some eatables for her. It
is alleged that, accused followed her. In front of VIT
college, accused again insisted PW.2 to marry him and
when she denied, he became angry. Because of this
refusal, he told that, she should die and she shall not
marry another person. By saying so, he removed a blade
from his pocket and assaulted PW.2 Lavanya with the said
Razor blade on her neck and caused her bleeding injuries.
PW.2 became scared and she became afraid of her mother
if she informs the same to her. Therefore, she called PW.7
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Kiran and asked him to come to spot. Accordingly, PW.7
Kiran and his brother PW.8 Chethan came to the place of
incident on their motor cycle. On seeing them, accused left
the place. On her request, she was taken to the local
Hospital and thereafter, she was shifted to Colambia Asia
Hospital in an Ambulance for further treatment. When she
was moving to the Hospital, she informed the said fact of
sustaining injuries to her mother through telephone. PW.1
rushed to the Hospital.
6. In the Hospital, when PW.2 was under
treatment, one Sri Byalamurthy, the then Asst. Sub-
Inspector of Chikkajala Police Station examined as PW.11
came to the Hospital and recorded the statement of PW.1
as per Ex.P1, went to the Police station and registered
crime against the accused for the offences punishable
under Sections 341, 504 and 307 of IPC and set the
criminal law in motion.
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7. The Investigating Officer conducted the
investigation and after completion of investigation, filed
the charge sheet against accused for the aforesaid
offences. During the course of investigation accused was
arrested and subsequently enlarged on bail.
8. Before the learned trial Court, to substantiate
the case of the prosecution, in all, examined 14 witnesses
and got marked Exs.P1 to P10 with respective signatures
and MO Nos. 1 to 4 and closed prosecution evidence. After
recording the 313 statement of the accused as per
Sec.313 of Cr.P.C., accused himself entered the witness
box as DW.1. During the course of evidence of PWs.1, 3
and 12, certain portions of their statement were marked
as Exs.D1 to D6 and on behalf of the defence Exs.D4, 5, 7
to 12 were marked.
9. The learned trial Court, on hearing the
arguments and on evaluation of the evidence placed on
record by the prosecution found the accused guilty of
committing offences under Section 341 and 307 of IPC and
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acquitted the accused of the charges punishable under
Section 504 of IPC and sentenced him as stated above.
This is how the appellant is before this Court challenging
the impugned judgment.
10. The learned counsel for the appellant-accused
Sri Nagendra Naik submits that, the impugned judgment
passed by the trial Court was not with open mind. The
observations so made were already pre-determined by the
trial Court to convict the accused. It is his submission that,
on reading the entire evidence of the prosecution and the
defence set up by the accused, the very scene of offence
is disputed. The evidence placed on record by the
prosecution is not wholly reliable and hence, unless such
evidence is corroborated by independent witnesses, the
story of the prosecution cannot be believed. In this case.
except the evidence of PW.1 which is full of contradictions,
omissions and discrepancies, there is no direct evidence
connecting the accused in the commission of the crime. It
is his submission that, the whole story of the prosecution
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cannot be believed at any stretch of imagination.
According to his submission, the learned trial Court in
para.19 has observed with regard to the laxity on the part
of the prosecution and unmindful application of mind by
the Public Prosecutor in recording the evidence. It is
observed in para.19 that, unnecessary witnesses are
examined who are all hearsay witnesses. At the best,
PW.1, PW.2, PW9 and 10 would have been examined and
the other witnesses were examined to bring more
contradictions, inconsistencies in the evidence so as to
give an opportunity to the accused to contend that
prosecution examined only interested witnesses and no
independent witnesses were examined. It is observed by
the trial Court that, an attempt was made by the learned
Public Prosecutor to damage the case of the prosecution
rather than to prove it.
11. Relying upon this observation, it is submitted
that, it shows the pre-determination of the mind of the
Court to convict the accused which is not at all warranted
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to observe so. He relied upon various contradictions, so
called omissions and discrepancies and highlighted them in
the course of his arguments. It is his submission that, the
whole case of the prosecution suffers from material
particulars and it is full of embellishment. He prays to
allow the appeal and set aside the impugned judgment.
12. Refuting this submission, the learned High
Court Government Pleader submits that, PW.2 is a victim
and her evidence proves about the commission of the
crime by the accused. She was injured in the hands of the
accused and she being the injured witness would not have
deposed falsehood so as to falsely implicate the accused.
It is his submission that, evidence of PW.2 is corroborated
by the evidence of the doctor who has issued the wound
certificate. This would establish that, prosecution is able to
prove the injuries sustained by PW.2 because of assault
made by the accused by using the razor blade. Even there
was an attempt to cause murder of this PW.2 by the
accused. It is his submission that, the learned trial Court
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has cautioned the prosecution to examine the relevant
witnesses by observing so. The said observation does not
amount to pre-determination. Therefore, he submits, with
cogent and acceptable reasons, the trial Court has
convicted and sentenced the accused by passing the
judgment under challenge. Therefore, he prays to dismiss
the appeal in limine.
13. I have given my anxious consideration to the
arguments of both the side. Perused the records. In view
of the rival submissions of both the side, the following
point arises for my consideration:
"Whether the trial Court has committed
any illegality or infirmity in passing the
impugned judgment of conviction and
order of sentence and whether it
requires interference by this Court?"
14. In the present case, it is seen that the trial
Court basically relying on the evidence of PWs.1, 2 and 7
being the complainant, injured victim and the friend of
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PW.2 has come to the conclusion that, the prosecution is
able to establish the guilt of the accused.
15. Evidently, PW.1 complainant is not an eye
witness to the alleged incident. She came to know about
the incident only when she received a telephone call from
Police about sustaining of injuries by PW.2 Lavanya. But,
her evidence is quite essential to know the background of
the so called incident which has taken place as per her
evidence.
16. She states that, in the year 2011, PW.2
Lavanya was studying at Presidency College in her Final
B.Com and after completion of college hours, she used to
go to Yelahanka new town to attend the coaching classes.
It is her evidence that, about 15 days prior to the alleged
incident at about 2.30 p.m. accused came to her house. At
that time, she was alone in the house. He told that, he is
loving Lavanya. PW.1 told that she does not know him
and enquired about his parents. The accused told that, he
has got deep love on Lavanya and about that, he asked
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PW.1 to enquire with PW.2. At that time, PW.1 told that,
her daughter would not agree for the same and if this fact
is known to her husband and son, they will not keep mum
and asked him not to come to her house. He went away. It
is her further evidence that when her daughter came to
the house at about 3.30 to 4.00 p.m. she enquired her
daughter about her love affair with accused but, she told
that she is studying and she has no love affair with
accused.
17. It is her further evidence that, after 15 days, at
about 4.30 p.m. again accused came to her house and told
that, he has spoken with her son and husband and by
saying so, he came inside the house, PW.1 told, her son
has gone to attend his job and he will not come early and
also asked him not to come to the house. On hearing the
same, he went away. Thereafter, her daughter came to
the house at about 5.00-5.30 p.m. she asked her daughter
to bring the household articles and accordingly, she sent
her daughter PW.2 to the shop. Her daughter had to board
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the rikshaw and to reach rikshaw stand she has to walk for
10 mts.
18. It is stated that, when her daughter was
moving in a rikshaw towards the shop, at that time,
accused was waiting for her and when she got down from
the rikshaw, he told her that, her mother had agreed for
marriage and why she is not agreeing. By saying so, he
stabbed her neck. The persons who were moving on the
road and police informed PW.1 about the injuries
sustained by PW.2 and she requested to shift her daughter
to Colambia Asia Hospital. After informing her husband,
she went to the said hospital and noticed the injuries on
her daughter who has taken the first aid treatment and
she was requesting her mother to save her. Thereafter,
she underwent surgery. The police came to the hospital
and recorded the complaint as per Ex.P1 and took all the
information from the victim and also seized blood stained
clothes of her daughter.
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19. If this examination-in-chief spoken to by PW.1
is compared with the contents of complaint, it is found
that, there is quite improvement in her evidence on oath.
This PW.1 was thoroughly cross-examined by the defence.
20. On going through the cross-examination
directed to PW.1 she has altogether deposed a different,
inconsistent and contradictory evidence in the cross-
examination. As per her evidence, when she received the
telephone call, her daughter Lavanya spoke to her stating
that, at Sonnappanahalli Area, the accused cut her neck
with blade and ran away. According to her, in between
10.30 to 11.00 a.m. on that day, she gave statement. Her
oral statement was reduced to writing by the Police. It is
her evidence that, she has told the Police that, the said
incident has taken place ahead of Sonnappanahalli near
the road turning. According to her she requested the police
to take her daughter to Colombuia Asia Hospital. She
admits that, at Yelahanka, there is a Government Hospital
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and one Dr.Shashidhar is working in the said Hospital.
Even she admits that, at Bettahalasur there are doctors.
21. With regard to the happenings of the events
prior to the incident, she deposed that, when accused
came to her house stating that, he is loving the victim
Lavanya at that time, she enquired about his antecedents.
It is her evidence that at 3.30 p.m. on that day, when her
daughter came to the house, she enquired about the love
affairs about herself and accused and at that time,
Lavanya told that, she is not loving the accused and she is
studying. According to her evidence, in the compound of
Bettahalasur hospital, there are nine residential quarters
and she is working in the said hospital. She deposed
ignorance that, after leaving the house, where Lavanya
went till she received telephone call from the police and
she does not know about the same. According to her, after
one hour from leaving the house, she received a telephone
call from the police. It was Lavanya who told her that
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accused cut her neck. She does not know the caste of the
accused. She denied all the other suggestions.
22. On scrupulous reading of the entire cross-
examination directed to PW.1, she has changed the scene
of offence which is situated near the Sonnappanahalli
cross in a road curve area. We find quite improvement and
additions in the cross-examination if it is compared to the
complaint allegations.
23. Amongst the witnesses so examined by the
prosecution, PW.3 Srinivas Ramakrishnappa, PW.4
Srinivas Thimmanna are the scene of offence panchas,
PW.5 Ravichandra Krishnappa and PW.6 Ravi Muniyappa
are the seizure panchas of said blade. But, all these four
witnesses being the panchas have turned hostile except
admitting their signatures on the panchanama marked at
Ex.P3 and P4. Therefore, the evidence of these panchas
cannot be believed about their presence when the
aforesaid panchanamas were conducted by the police.
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24. In all criminal cases, panchas are the authors of
the panchanama and if they do not support the contents of
panchanama then, it can very well be stated panchanamas
are not duly proved in accordance with law. This fact is not
properly assessed by the learned trial Court with regard to
the proof of scene of offence panchanama and recovery
panchanama which play an important role in deciding the
conducting of panchanama. When it is alleged by the
prosecution that, at the instance of the accused, the said
blade was seized, it has to be proved in accordance with
law as contemplated under the provisions of Sec.27 of the
Indian Evidence Act. But, seizure panchas have not
supported the case of the prosecution.
25. PW.7 Kiran S/o.Shankar was examined by the
prosecution to prove that he being the friend of PW.2, on
17.11.2011, PW.2 Lavanya called this PW.7 and asked him
to come near the dairy cross. She told that, one boy name
Pavan is with her and she wants to talk with him.
Accordingly, this PW.7 and his brother Chethan examined
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as PW.8 came to the said place and there both enquired
about the relationship of Pavan with PW.2. At that time,
accused told that, he has no relationship with her and by
saying so, he went away. It is the evidence of PW.7 that,
after accused went away, himself and his brother also
went to their house. On the same day, at 5.30 p.m., once
again, Lavanya called him on his telephone and told that
said Pavan near the VIT College cross has cut her neck
and asked him to come to the said place. Accordingly,
himself and his brother Chethan PW.8 went to the said
place. Lavanya was found calling him by showing her
hands. When they went and saw Lavanya, they noticed
oozing of blood from her neck. Therefore, she was taken
to NRV hospital and there the first aid treatment was
provided to her and thereafter, she was shifted to
Columbia Asia Hospital in an ambulance belonging to NRV
hospital.
26. In the cross-examination directed to PW.7, he
deposed that he came in contact with Lavanya in the
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tuition class but, she was not in talking terms with him on
telephone. But, he was knowing her mobile telephone no.
As per his evidence, on that day, near dairy circle she saw
accused Pavan for the first time. He does not know about
the love affair between Lavanya and accused Pavan. He
further deposed that, on that day, at 5.30 p.m. Lavanya
called him and informed that, accused Pavan has cut her
neck. He deposed ignorance about love affair in between
them and in order to put fear in the minds of her parents
she has herself has cut the neck. For this suggestion, he
has deposed ignorance.
27. It is his evidence that, Lavanya did not inform
either before the doctors at Columbia Asia hospital or any
of the staff of the said hospital stating that, accused Pavan
has cut her neck. Likewise, his brother Chethan
corroborates the evidence of his brother.
28. As per his evidence on 17.11.2011, at 3.30
p.m. as per the request of his brother, he went with him
near Yelahanka Mother dairy i.e. a bus stand. There he
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noticed the presence of Lavanya and accused standing
together. Lavanya introduced accused to them. When
there were talks in between them, the accused spoke filthy
words with his brother Kiran and accused told that, he will
take care of Kiran. This evidence is not spoken to by PW.7
in his evidence. Further, this PW.8 states that again they
went at 5.30 p.m. near the VIT college curve, they noticed
the presence of Lavanya and she was not talking. By
making signs, she asked him to come near her. He noticed
oozing of blood from her neck. He too states about
providing first air treatment to Lavanya in NRV hospital
and shifting her to C.A hospital.
29. On reading the evidence of PWs.7 and 8 they
too have changed scene of offence. Evidently, both these
witnesses are not the eye witnesses to the said incident.
They only arrived to the place on receipt of information
from Lavanya to them. Their evidence can be accepted to
the extent that they reached the spot only on information
from Lavanya and noticed the injuries on her neck and
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thereafter, they shifted her to NRV Hospital provided first
aid treatment thereafter, shifted her to the CA Hospital.
30. PW.9 Virupaksha, is none else than the father
of Lavanya and he is also a hearsay witness with regard to
the said incident. In his examination-in-chief, he states
that. on 17.11.2011, Lavanya after coming from college
went to bring the bread from Bakery. At that time, she
noticed standing of accused on the road which is about 5
mts walk from the house of the complainant. It is his
evidence that, on noticing the standing of accused there,
his daughter boarded the autorikshaw and accused also
boarded the autorikshaw. when his daughter got down at
Sonnappanahalli near VIT college cross, accused followed
her and told that, if she refuse to marry him, he will kill
her and by using the blade he cut her neck. This is
altogether a different evidence spoken to by PW.9, the
father of the victim girl. As he is a hearsay witness, no
credibility is attached to this witness except of getting
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information regarding the said injuries on the person of
Lavanya.
31. In the cross-examination, he admits that, till
Lavanya came from the Hospital, he was not knowing how
his daughter sustained injuries. As per the evidence of
PW.1 on getting information with regard to the assault on
her by blade, she informed her husband PW.9. But, this
PW.9 gives different evidence. As per evidence brought on
record, PW.2 was in-patient at CA hospital for two days.
On the date of incident, as per evidence of PW.9, this
PW.9 was informed. Whether this PW.9 visited the hospital
to see his daughter on getting such information of assault
on her is not at all stated either by PW.1 or PW.9 or by
PW.2 Lavanya. Thus, this conduct of PW.9 goes to
establish that, he was not at all aware about the alleged
incident and assault on his daughter. Therefore, the
evidence of PW.9 cannot be accepted.
32. PW.10 Naveen, is also a brother of Lavanya and
he too is a hearsay witness. As per his evidence, after two
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days of incident, Lavanya informed, that accused
assaulted her by using blade. He has completely deposed
ignorance about the love affair between Lavanya and
accused. As he is a hearsay witness, much value cannot
be attached to the evidence PW.10.
33. PW.11 is Bylamurthy, then ASI of Chikkajala
P.S. as per his evidence, on 17.11.2011 at 11.20 p.m.,
PW.1 came to the Police Station and gave a oral
complaint. He reduced the same in writing which is at
Ex.P1 and registered the crime in Crime No.104/2011 for
the aforesaid offences. He identifies Ex.P5 the First
Information Report sent to the Court as well as superior
officers. It is elicited in the cross-examination that, PW.1
has informed him that, her daughter was assaulted by
using the knife. But, here, the blade is seized. Through
this evidence of PW.11, the prosecution has changed the
weapon alleged to have been used to assault PW.2. The
evidence of PW.11 can be accepted to the extent that
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based upon Ex.P1 complaint registered the crime and set
the criminal law in motion.
34. PW.12 the Police Constable of Chikkajala Police
Station was examined by the prosecution to prove that on
17.11.2011, when he was on patrolling duty to collect the
sacred information, at 6.00 p.m., when he was so moving
towards NRV hospital, he noticed two boys found shifting
a girl in an ambulance. Her clothes were blood stained.
When he went and enquired a boy by name Kiran told the
history of assault stating that, one Pavan who is in love
with Lavanya, as Lavanya refused to love him, he
assaulted her on her neck by blade and they are shifting to
Columbia Asia Hospital for treatment. He also
accompanied them to Columbia Asia Hospital. He further
deposed that, on the way to the hospital Lavanya gave her
mother's telephone number and he informed her mother
PW.1 that, her daughter Lavanya is being taken to the
Columbia Asia Hospital for treatment. Immediately, he
informed the said incident to the Police Inspector of
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Chikkajala Police Station. It was informed to him by his
Police Inspector that, till arrival of parents of the injured,
he should be in the hospital. After arrival of parents of
Lavanya, he went to the police station. But, PW.9, the
father of Lavanya never deposed that he too went to the
hospital on the date of incident.
35. In the cross-examination, he deposed that, he
has not enquired about the injuries being sustained by
Lavanya and she was in a position to speak. The blood was
oozing from her neck profusely. He spoke with mother of
Lavanya. According to him, at Columbia Asia hospital
Lavanya did not inform the doctors about the person who
assaulted her.
36. The evidence of PW.12 shows that, he
accompanied Lavanya from NRV hospital only and he
called the mother of Lavanya and informed about the
injuries. Though he informed the Police Inspector about
the incident of assault on Lavanya, there is no evidence
that, information given by PW.12 was reduced into writing
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by the SHO of Chikkajala Police station as informed to
Police Inspector. No such evidence is placed on record.
37. The evidence of the PW.11 Bylamurthy shows
that for the first time, PW.1 came to the Police Station at
11.20 p.m on 17.11.2011 and filed a complaint. When at
6.30 p.m. Police Inspector of Chikkajala Police Station got
the information of so called assault on the person of
Lavanya and knew that the said injured is being shifted to
the Columbia Asia Hospital, nothing prevented the IO to
depute any of his police officials to the hospital to record
the statement of victim girl who was in a position to talk or
the persons who accompanied her. He would have directed
the police constable i.e., Srinivas who was examined as
PW.12 to record the statement of Lavanya. It is a serious
lapse on the part of the IO. For this, there is no
explanation offered by the prosecution.
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38. PW.13 Dr.Kiran Jayaram, medically treated the
victim girl Lavanya and she noticed the following injuries
as stated in Ex.P6:
"1. Incised wound over the right of neck measuring
7 cms cutting the underlying muscles.
2. Incised 2cm over middle region of neck towards
the left side cutting the underlying muscles.
3. Incised wound 1 cm over middle of neck".
39. As per his evidence, the said injuries are
grievous in nature. According to him, he has seen the
blade when it was presented before him by the police. To
the extent of medically examining Lavanya and treating
her and issuing Ex.P6, the evidence of this PW.13 can be
accepted. According to his cross-examination, Lavanya did
not inform the name of the assailant. As per his evidence,
the said case is registered as MLC case in the MLC register
and intimation was sent to the Police. He says that, the
said injuries are not self-inflicted injuries. The injuries
were fresh. He denied other suggestions.
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40. PW.14 Thippeswamy Jayadevappa was the
Police Inspector of Chikkajala Police Station at the relevant
time. As per his evidence, he took up the investigation
from ASI on 18.11.2011. Though he knew about the
incident on 17.11.2011 from his police constable. He went
to the hospital to record the statement of injured on the
following day. He states that, the injured was not in a
position to give any statement.
41. This is altogether a different version of police
inspector. He speaks with regard to the investigation
conducted by him, arrest of the accused, recording of the
statement of the witnesses and recovery of the blade etc.,
and the Panchanama. He has been directed with severe
cross-examination.
42. In all criminal cases, IO's are supervisors of
investigation. Unless their evidence is corroborated by
independent witnesses, much value cannot be attached to
such evidence.
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43. Then remains the evidence of victim Lavanya
examined as PW.2. As per her evidence, during 2011, she
was studying in B.Com final degree course at Kempapura
Residency college and evening hours she used to go to
coaching class at Yelanhanka Upanagara, she identifies
accused stating that, he used to teach dance to the
students. She came to know about the accused from her
senior friends. Both exchanged their telephone numbers.
According her evidence for about 5 to 6 months, they used
to have conversation in between them on telephone and
they were exchanging messages.
44. It is her evidence that, one day accused called
her on telephone and told that, he is loving her and wants
to marry. At that time, she told that, she is not loving him.
After that, when she was talking with other boy friends, at
that time, accused came there and asked her not to speak
with other boys. Thereafter, he used to cut his hands by
using blade. It is her further evidence that, whenever she
used to move towards bus stand from college, he used to
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follow her and shout at her that, he loves her. Because of
their culture learnt from her parents, she has not
responded to the persistent demand of the accused. She
has not informed the said fact to anybody but, she used to
weep. When her mother PW.1 asked her, why she was
weeping, at that time, she told that there is some problem
in the college.
45. It is her further evidence that, after these
incidents, everyday accused started following her. When
she was attending coaching classes, he used to force her
to love him. It is her further evidence that, there was a
house warming ceremony at Tumakuru belongs to them,
therefore, she went to attend the said function but,
accused by getting address came to Tumakuru and
informed her mother that he is loving her.
46. It is her further evidence that, after completion
of her B.Com Semester examination, she called the
aforesaid Kiran on telephone and informed the problems
she is facing because of the accused. At that time, the said
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Kiran told to call Pavan i.e. accused and they will have a
discussion. Accordingly, she went to attend the computer
tally class situated near Yelahanka Dairy circle and called
the accused there. At that time, Kiran and his brother
Chethan also came there. When they advised the accused,
he told that, he will not trouble Lavanya and went to his
house. At that time, she was weeping. Thereafter, she
went to her house, her mother asked her why she was
weeping. On the same day itself in between 5.00 or 5.30
p.m. accused came to her house and told her mother that,
he wants to speak to Naveen her elder brother. At that
time, PW.2 Lavanya told her mother that, she intends to
go to her aunt's house at Vijayapura and took Rs.50/- and
was preparing herself to go to her aunt's house. When she
was wearing the chappals, at that time, accused assaulted
her with blade on her neck.
47. This Lavanya was under the impression that, if
she informs the fact of assault on her, her mother will be
scared of the same. Therefore, by using the cotton she
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wiped off the blood, thereafter, started moving towards
Bettahalusuru Cross for that, she boarded autorikshaw
accused was following her. She was under the impression
that, if she moves in autoriskaw, the accused may commit
something therefore, she got down from autorickshaw at
VIT cross and started walking. At that time, accused
followed her and called her name as Lavanya and asked
her to agree to his proposal and told that, because of her
he has cut his hands. Suddenly, accused caught hold her
both the hands from her behind and by using the shaving
blade, scratched her neck 2 to 3 times. Because of the
same, she sustained injuries on her neck and blood started
oozing. Immediately, she called her friend Kiran and
informed him that, accused has assaulted her by using
blade. On such information, Kiran and his brother came
there and thereafter, both took Lavanya to NRV hospital.
As her nerves were cut, therefore, it was not possible for
the doctor of NRV hospital to give treatment and asked her
to go to higher hospital with facilities and provided an
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ambulance. Thereafter, she was shifted to Columbia Asia
Hospital.
48. When she was on the way to the said hospital
the police informed her mother. Her mother came to the
Hospital and there the doctors treated her. According to
her, at that time, she was unable to speak. On seeing her
mother she started weeping. She took the treatment as an
in-patient for two days.
49. If this evidence of PW.2 is compared with the
evidence of PW.9 her father, according to him, he never
visited the hospital but, it has come in the evidence of
Kiran that, her father also visited the hospital. PW.2 never
says about the visit of her father to the hospital. She
further speaks with regard to the clothes worn by her at
the time of incident which were blood stained.
50. On scrupulous reading of panchanama of scene
of occurrence and the evidence of PW.1 so also PW.8 and
evidence of PW.2, there is a complete change of scene of
offence through their evidence. So, therefore, every
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witness so stated above have stated different scene of
offence with that of scene so mentioned in the scene of
offence panchanama.
51. It has come in the evidence of PW.2 that, after
her discharge from hospital, police came to her house and
recorded her statement and asked her to show the scene
of offence. She showed the scene of offence as VIT cross,
and accordingly police prepared pancahnama Ex.P2. For
the first time, she states in her evidence about the
proposal of accused to love her if not, she should not be
available to others. Therefore, accused has attempted to
kill her by using MO No.4 the blade. Throughout her
cross-examination, she maintains about the said incident
and speaks about her talking with the accused during her
college days.
52. On reading the entire cross-examination
directed to her, we find more contradictions, improvement
and omissions in her evidence with that of her chief
examination. At one breadth, she states that accused was
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not accompanying them whenever she used to go to
college trip but, in another breadth she says that, she
attended many functions with him. She admits that, to
celebrate the New Year function during 2010-11 herself
and her friends along with accused visited a restaurant at
Kanakapura and to that effect she has stated before the
police.
53. Accused was pestering her that, he is loving her
and in four days in a week he used to follow her. She
identifies her Whatsapp number as well as her email.id so
also face book account. According to her, she used to send
messages, chat with him in whatsapp and send messages
through email. She denies about sending of such
messages to him. According to her, she has not taken
treatment at Bettahalalusu hospital immediately after the
incident. As per her evidence, there was first assault in her
house when she was wearing the chappal. At that time,
according to her, blood did not fall on the ground and even
no blood fell on her clothes. She used to wear the veil but,
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on that day, she was not wearing the veil. She decided to
go to Vijayapura in a bus and to board the bus, she has to
go to Bettahalusur cross and accused followed her. She
has stated before the police of following of accused and
also forcing her to love him etc., She denied other
suggestions with regard to providing Mobile sim to her.
She has deposed that, she has stated before the police
about catching hold of her two hands from her behind and
assaulting her. But, this statement is not found in her
statement recorded by the police under Section 161 of
Cr.PC.
54. For the first time she states that, when accused
assaulted with blade, she was unable to speak, cried for
protection, nobody came there. In examination -in -chief
she states that, accused cut her three to four times but, in
cross-examination she states that, he cut her three to four
times. It is further stated by her that, after getting Rs.50/-
from her mother, she did not go to the shop to purchase
the articles. No blood fell at the scene of offence.
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55. It has come in her evidence that, when accused
was following her, she did not inform other road users
regarding accused following her. She did not shout for
any help but was moving fast. According to her, she has
stated before the Police that by using the shaving blade
accused has cut her neck. But, this fact is not found in the
statement given before the Police. Further she states that
accused caught hold her two hands by using his one hand
and at that time she tried to rescue herself but, she could
not. She requested the accused to leave her but, did not
bite his hands to rescue herself. She cannot say that on
which place of her neck, accused assaulted her. She was
not carrying her vanity bag at that time.
56. It has come in her evidence that even accused
has cut his hands and she has seen the blood oozing from
injuries on hands sustained by him. She says, the hands of
accused were also blood stained. She further states that,
on that day, except Rs.50/- she was not taking any article
with her. It is her evidence that, after assaulting her,
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accused was following her from VIT Cross, and at that
time, she did not notice about holding of a blade in his
hands. She moved for 4 to 5 steps and tried to stop the
two wheelers to give a drop to the hospital. She further
states that, accused was running behind her and following
her. She did not inform the motorcyclist about assault on
her by the accused. There was no continuous oozing of
blood from the injuries. She waited for 10 minutes at VIT
cross, at that time also, blood was oozing but, it did not
fall on the ground. Further, she states that, Kiran and his
brother came to the said place at 6.20 or 6.25 p.m. and
she reached the VIT cross at about 6.10 p.m. She further
states, the Bettahalasur is about 2 kms. away from VIT
cross but, she did not go to that hospital. Kiran and
Chethan came on two wheelers took her to NRV hospital.
Thereafter she was shifted to Colambia Asia Hospital.
57. She further states that to the doctors at
Colambia Asia Hospital , she did not inform the name of
assailant on her and there was no difficulty for her to
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inform the name of the accused who assaulted her. She
denied other suggestions that, she has told her mother
that she is loving accused and wants to marry him as the
caste of accused is different than the cost of PW.2
therefore, her parents did not agree for the same. She has
not informed her parents or her brother about the assault.
She states that she is not married as on 19.3.2013, when
she was under cross-examination.
58. On scrupulous reading of the entire evidence of
this PW.2 being the victim girl, we find that there are
much improvements, contradictions, omissions and
discrepancies in the evidence placed on record by the
prosecution.
59. So far as evidence in criminal cases is
concerned Law is very much settled with regard to the oral
testimony which can be divided into three categories, they
are:
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1. Wholly reliable
2. Wholly unreliable
3. Neither wholly reliable nor wholly unreliable.
60. The Hon'ble Apex Court in Nirmala
Premkumar and another vs. State represented by
Inspector of Police reported in 2024 SCC Online Hon'ble
Apex Court 260 have reiterated with regard to the oral
testimony which are divided into three categories. It is
held in the said judgment that, first two categories of
cases may not pose serious difficulty for the court arriving
at its conclusion. However, in the third category of cases,
the court has to be circumspect and look for corroboration
of any material particulars by reliable testimony, direct or
circumstantial as the requirement of rule of prudence.
61. It is settled principle of law in a case of present
nature, the sole testimony of the victim if found reliable
and trustworthy requires no corroboration and may be
sufficient to invite conviction of the accused.
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62. When PW.2 is a sterling witness, her evidence
should be of high quality and caliber whose version should,
therefore, be unassailable. On reading her evidence in its
entirety, the Court must be in a position to accept it on its
face value without any hesitation. It is held in the
aforesaid judgment that, to test the quality of such
witness, the status of the witness would be immaterial and
what would be the relevant is, the truth fulllness of the
statement made by such a witness. It is further observed
that, what would be more relevant would be the
consistency of the statement right from the starting point
till end, namely, at the time when witness makes the
initial statement and ultimately before the Court. He
should be natural and consistent to the case of the
prosecution qua the accused. Therefore, there should not
be any pre-variations in the version of such a witness.
That means the witness should be in a position to
withstand the cross-examination of any length and how so
ever strenuous may be and under no circumstances should
give room for any doubt as to the factum of occurrence,
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the person involved as well as the sequence of it. Such a
version should have co-relation with each and other of
other supporting material such as recoveries made, the
weapons used, the manner of offence committed, scientific
evidence, and the expert opinion.
63. It is further held in the said judgment, that the
said version should consistently match with version of
every other witness. If this analogy is applied to the
present facts of the case, in this case, except self-serving
interested improved evidence of PW.2 with full of
embellishments, there are no other witnesses spoken
before the Court about the assault on the person of the
victim girl PW.2 by the accused. The other witnesses are
hearsay witnesses including the complainant. The panchas
turned hostile. The pedestrians moving on the road are not
examined as eye witnesses. The PC who came to NRV
hospital has informed the mother of PW.2 and there also
PW.2 did not inform the name of the assailant. Even she
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has not informed the name of the assailant at Columbia
Asia Hospital.
64. Thus, circumstantial evidence to establish the
link of committing the offence on the person of the victim
girl at the scene of offence shown by her to the police is
not established. She has changed the scene of offence. At
one breadth she says the first assault was committed in
her house by the accused and at another breadth, it was
at VIT college cross near the bus stand and so on. So, on
reading the entire evidence placed on record by the
prosecution, the missing link of committing the offence by
the accused at the place so stated by PW.2 is missing.
Therefore, the version of PW.2 does not qualify with
regard to the circumstances stated by herein committing
the offence by the accused. There is no quality evidence
spoken to by her which is full of contradictions, omissions
and improvements. If the version of PW.2 qualifies the test
of her veracity in getting evidence before the Court, such
evidence can be considered. Therefore, PW.2 cannot be
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termed as sterling witness and her version cannot be
accepted by the court without any corroboration. Even
Kiran and Chethan who arrived at the scene of offence
were not informed by the complainant that it was accused
who assaulted her in the manner stated in her evidence.
65. In this case, except evidence of PW.2, there is
no acceptable evidence placed on record by the
prosecution. Therefore, the witnesses examined in the
case including PW.2 can be termed as neither wholly
reliable nor wholly unreliable. When sterling witness has
not supported the case of the prosecution in material
particulars by giving graphic account of the incident,
unless there is a corroboration, her evidence cannot be
accepted. The initial statement of the complainant and her
statement before the court are quite contrary.
66. In view of the above said guided law, it can be
stated that, on reading the entire evidence placed on
record threadbare and when it is noticed the manifest
contradictions and discrepancies in the oral evidence of
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the prosecution witnesses, it can be stated that such
evidence have the effect of casting a serious doubt with
regard to the veracity of the prosecution.
67. Though the prosecution has made an attempt
to establish that, the victim PW.2 was the victim in the
hands of accused but, her evidence does not inspire
confidence in view of the absence of corroborative
evidence lead by the prosecution. In a strange turn of
events, she has changed the scene of offences. Her
complaint is very much silent about assault on her in her
house when she was wearing the chappals. Her mother
PW.1 never says that on the day of assault, really accused
was in the house, till PW.2 was found leaving from the
house. On the factum of complaint being made to the local
police in the hospital itself, the police started investigation.
But, the IO has not traced the pedestrians who were
moving on the road at the time of alleged incident. The
neighbours of the complainant's house who have seen the
accused visiting the complainant's house are not
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examined. Therefore, from the initiation of complaint itself
i.e. contents of the complaint and mode and manner of the
same being lodged creates grey cloud of suspicion.
Definitely, it creates a clear doubt with regard to the very
happening of the incident in the manner stated by PW.2.
68. Accused also entered the witness box as DW.1
and has stated that he has filed an application before the
Kumaraswamy Layout police station to provide the copies
of the messages sent by Lavanya. The said application is
marked at Ex..D7. He has also produced D8 to D12 the
copies of messages sent through mail and photographs to
show that both were having love affair between them. He
has been cross-examined by the Public Prosecutor. He
states that these D8 to D12 were taken from
Kumaraswamy Layout and admits about email prints by
anybody. PW.2 never denies specifically with regard to
these messages sent by her.
69. On reading the contents of Ex.D8 to D12 they
are the messages sent by PW.2 addressing accused
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expressing 'her happy new year' greeting as stated at P8.
She has expressed 'happy birthday' greeting to the
accused as per P9. She has stated that, accused is 'her
sweet heart' and 'she loves him too much'. After the
incident, as per the defence of the accused, this PW.2 has
sent the email message stating that "I am really sorry -
pls. understand my situation - I was afraid of my family,
so I played that". This goes to establish that, some play
was played by PW.2.
70. On reading the evidence of DW.1 accused, it
shows that both were acquainted with each other and had
some affair between them. As she was afraid of her family,
she must have given her statement before the Police so as
to implicate the accused. This possibility cannot be ruled
out in view of her evidence spoken in the cross-
examination.
Conclusion:
71. On reviewing the entire material placed on
record, it can be stated that the evidence placed on record
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by the prosecution suffers from material particulars. The
evidence of PW.2 is full of contradictions, omissions and
discrepancies which is not properly explained by the
prosecution. The other witnesses so examined, except
police officers are the hearsay witnesses. Even the police
offices evidence is also not corroborative with evidence of
PW.2. Therefore, one cannot arrive at conclusion of guilt
against the accused and such a guilt cannot be drawn
against as it was not wholly established.
72. The learned trail Court has not considered all
these aspects and simply believed the evidence of PW.2.
But, in view of the discussion made above, there is no
proper appreciation of evidence by the trial Court. Thus,
the impugned judgment suffers from infirmity, illegality
and requires interference.
73. Accordingly, the points raised supra are
answered against the prosecution and in favour of the
accused.
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Resultantly, I pass the following:
ORDER
(i) The Appeal is allowed.
(ii) The judgment of conviction and order of
sentence passed by the V Additional
District and Sessions Judge, Devanahalli,
in SC No.61/2012 dated 14.03.2014 is
hereby set aside.
(iii) Consequentially, the accused is acquitted
of the charges under Sections 341, 504 &
307 of IPC.
(iv) The bail bond of the accused stands
cancelled and set at liberty.
(v) Whatever the fine amount so paid by the
accused is to be released by the trial Court
in favour of accused/appellant digitally
after collecting necessary documents.
(vi) Send back the trial Court records along
with copy of this aforesaid judgment
forthwith.
Sd/-
JUDGE
