Chandra, Mohan and Mandya alias Srinivas vs The State of Karnataka

Anand Byrareddy, J.—Heard the learned Counsel for the appellants and the learned State Public Prosecutor. The appellants were the accused in the following circumstances:

It is alleged that PW.4 had borrowed a sum of Rs. 500/- from accused no. 1 about 2 and 1/2 months prior to the alleged incident and since PW.4, the complainant was unable to refund the money, that a demand was made on him and since he did not repay, he was waylaid on 23.3.2004 by all the accused at about 5.30 p.m., when he was on his way home and again, there was a demand for the money and when he expressed his helplessness in being able to repay, it is alleged that accused no. 1 had head-butted him in the face, accused no. 2 had kicked him on his thigh and stomach and accused no. 3 had stabbed him in the chest. It is as a result of assault that he had suffered injuries and he had barely escaped from the accused and had proceeded to the police station to lodge a complaint against the accused. The Police in turn, took him to the hospital for treatment even before registering a case. It is only on the intervening night of 23.3.2004 and 24.3.2004 that a complaint was registered for offences punishable under sections 341, 323, 504 and 307 of the Indian Penal Code, 1860 (Hereinafter referred to as the IPC, for brevity) read with Section 34 of the IPC. The accused having been taken into custody, after further investigation, they were brought to trial and they having pleaded not guilty and having claimed to be tried, the prosecution had tendered evidence and on the basis of the evidence and after hearing both the parties, the court below had framed the following points:--

Whether the prosecution has proved that on 23.3.2004 at about 5.30 p.m., the accused had illegally obstructed the complainant ?

Whether, the prosecution has proved that on the said date, time and place, the accused had assaulted the complainant and provoked him to violate public peace?

Whether the prosecution has proved that accused no. 1 had head-butted in the face of the complainant and accused no. 2 had kicked him. on his thigh and stomach?

Whether the prosecution has proved Mat accused no. 3 had stabbed in the chest of the complaint and attempted to commit murder?

Whether the prosecution has proved that the accused had committed the offences with common intention?''

The court below had held points 1 and 3 in the affirmative and point no. 2 in the negative and point no. 4 partly in the affirmative and convicted the appellants and sentenced them to undergo simple imprisonment for a period of 3 months for the offence u/s 341 of the IPC, to undergo simple imprisonment for 3 months for the offence u/s 323 of the IPC; and to undergo simple imprisonment for 6 months and to pay fine of Rs. 5,000/- for the offence u/s 324 of the IPC.

It is that which is under challenge in the present appeal.

The learned Counsel for the appellants would contend that the prosecution had miserably failed to establish its case, in that, all the witnesses for the prosecution had not supported the case of the prosecution, except PW.4. It is the sole testimony of PW.4 which has been unquestionably accepted by the trial court in holding that the charges against the accused have been proved. Insofar as the alleged assault and the injuries caused are concerned, the complaint being grossly exaggerated, is not supported by any material evidence, except the oral testimony of PW.4. It is pointed out that the grievous injuries alleged to have been committed by knife used by accused no. 3 is not consistent, in that, the alleged weapon used is not identified with any degree of certainty before the medical practitioner who had examined the complainant in the first instance, whereas in the FIR, it was stated to be a knife and in the evidence it was reiterated. However, the injury itself was a mere a scratch injury measuring 2 centimeters and 1 centimeter, which, even according to the medical practitioner, could not have been caused with a knife. Therefore, the primary allegation of serious offences having been caused by means of a deadly weapon is not established beyond all reasonable doubt, especially, in the light of the fact that none of the witnesses have supported the case of the prosecution and on the mere self serving testimony of PW.4, the court below having taken serious view and mulcted the accused with the punishment of imprisonment as well as fine, which leads to a serious miscarriage of justice. The learned Counsel would also point out with reference to the testimony of PW.4 that it is ridden with material omissions and contradictions and legal infirmities. When the case of the complainant is not supported "by independent witnesses, who were fielded by the prosecution, in the prosecution having examined not less than nine witnesses, the court below was not justified in placing reliance entirely on the evidence of PW.4, which does not on the face of it evoke any confidence as to the allegations being established. Further, the learned Counsel would submit that the court below has committed a serious error in convicting the appellants for an offence punishable u/s 341 IPC, when there was no evidence whatsoever tendered by the prosecution in support of the offence punishable under the said section and hence viewed from any angle, it could not be said that the case of the prosecution was made out merely on the sole testimony of PW.4 and seeks acquittal of the accused.

While the learned State Public Prosecutor would seek to justify the judgment of the court below. As rightly pointed out by the learned Counsel for the appellants, apart from the testimony of PW.4, there is hardly any evidence worth mentioning which could be drawn in support of the findings of the court below. Therefore, on a plain examination of the record, the reasoning of the trial court cannot be sustained.

Consequently, the appeal is allowed. The judgment of the court below is set aside. The appellants stand acquitted. The fine amount, if any, paid by the appellants shall be refunded to them. The bail bonds stand cancelled.