Manjunath vs The State of Karnataka and Others

Mohan M. Shantana Goudar, J.

The judgment and order of acquittal dated 21.6.2012 passed by the Second Fast Track Court, Shimoga in Sessions Case No. 51/2010, is called in question in this appeal by the complainant, who is none other than the son of the injured.

The five accused/respondents 2 to 6 were charged with the offences punishable under Sections 143, 144, 147, 148, 341, 324, 504, 307 r/w. Section 149 of IPC. The trial Court has acquitted all/the accused of all the charges leveled against them.

The case of the prosecution in brief is that accused Nos. 1, 4 and P.W. 2 are genitive brothers. Accused No. 3 is the genitive sister of accused Nos. 1, 4 and P.W. 2. Accused Nos. 2 and 5 are the spouses of accused Nos. 1 and 4, respectively. The litigations are going on before the Civil Court in respect of the vacant portion of the residential site lying in between the house of P.W. 2 and the house of P.W. 4; accused No. 3 being the sister claims that the said site is allotted to her and that she is entitled to possess the same. She is supported by her brothers accused Nos. 1 and 4 and their family members. However, P.W. 2 and another brother of accused No. 3 claims that the vacant land is not an independent site, but it is part of his site only, which he is using as a pathway. In effect he denies the ownership of P.W. 2. The civil Court has decreed in favour of accused No. 3 holding that she is the owner and in possession of the said site However, P.W. 2 has filed an appeal before the first appellate Court and the same is pending consideration.

It is further case of the prosecution that at about 8.00 a.m. on 26.6.2009 all the accused came to the disputed site with crowbar; they started scolding P.W. 2 in filthy language; accused No. 1 suddenly assaulted on the head of P.W. 2 with a crowbar and other accused assaulted P.W. 2 with clubs on all over the body. Because of the head injury sustained, P.W. 2 fell on the ground. P.Ws. 1, 7 and others were present on the scene of offence. All of them shifted the injured to the Mc. Gann hospital, Shimoga for treatment, at the first instance. Thereafter, he was shifted to Nanjappa Hospital (a private hospital), Shimoga. The Doctors at Nanjappa hospital advised P.W. 2 to take treatment in a higher medical centre and consequently, P.W. 2 was shifted to Kasturba Medical College Hospital, Manipal for medical treatment.

The first information came to be lodged at 3.00 p.m. on 26.6.2009 by P.W. 1, the son of injured P.W. 2, which came to be registered in Kote police station, Shimoga in Crime No. 127/2009 for the offences punishable under Sections 323, 324, 504, 506(2) r/w Section 34 of IPC. After completion of investigation, P.W. 12, the Inspector of Police laid the charge sheet.

It is relevant to note here itself that a counter complaint came to be lodged by accused No. 3 herein against P.Ws. 1, 2 and 3 herein alleging assault by them and for other offences and the said complaint came to be registered in Crime No. 126/2009 of the very police station.

The matter on hand was tried in Sessions Case No. 51/2010 by the II Fast Track Court, Shimoga, whereas the counter case initiated by accused No. 3 herein was tried in Sessions Case No. 156/2011. Both the cases were tried and decided as case and counter case simultaneously. As aforementioned, the accused in this matter are acquitted and whereas, the accused in the Sessions Case No. 156/2011 (i.e., P.Ws. 1, 2 and 3 herein) were convicted for the offence under Section 504 r/w. Section 34 of IPC and were imposed with sentence of fine only. The convicted accused in Sessions Case No. 156/2011 have not filed the appeal.

In order to prove its case the prosecution in S.C. No. 51/2010 examined 12 witnesses and got marked 8exhibits and two material objects. On behalf of the defense one exhibit came to be marked. As aforementioned, the trial Court has acquitted all the accused holding that the evidence of eyewitnesses is unbelievable.

This appeal is filed by the complainant (PW-1), who is none other than the son of the injured victim (PW-2).

Sri B.S. Prasad, learned counsel appearing on behalf of the appellant taking us through the materials on record, submits that the Court below is not justified in acquitting the accused, particularly when the ample material is against all the accused for convicting them for the offence punishable under Section 326 of IPC; the ocular testimony of PWs-1, 2, 7, 8 and 9 is consistent, cogent and reliable; the version of the eye witness is supported by the documentary evidence; the recovery of crowbar under Panchanama - Ex. P-3 is proved; the entire material would lead to the only conclusion i.e., the accused, have committed the offence alleged against them.

The said submissions are opposed by Sri S.B. Pavin, learned counsel for respondent Nos. 2 to 6, who vehemently argued supporting the judgment of the Trial Court. He submits that the evidence of the eye-witnesses is full of contradictions, omissions and exaggerations; the medical evidence does not tally with the ocular testimony; in order to get the civil matter settled, a false complaint is lodged against the accused; there is no animosity between PW-2 and rest of the accused, except accused No. 3 though there is animosity between accused No. 3 and PW-2 with regard to the vacant site; accused No. 3 is innocent and has not committed any crime; mere presence of accused No. 3 on the spot cannot be equated to the overt-acts by accused No. 3 He further submits that recovery of crowbar is not proved, as much as, mahazar witness has deposed that accused No. 1 went inside the house and brought the crowbar; whereas, the panchanama discloses that crowbar is seized from outside the house of accused No. 1. On these among other grounds, he submits that the Court below is justified in acquitting the accused.

We have already narrated in the aforementioned paragraphs that PW-1 is the complainant; the complaint is at Ex. P-1; PW-1 is the son of the injured; he is an eyewitness to the incident in question. PW-2 is the injured eye-witness; PWs-3 and 4 are the witnesses for scene of offence panchanama - Ex. P-2 and under the very panchanama, M.O. 1/club is seized. PWs-5 and 6 are the witnesses for recovery mahazar - Ex. P-3 under which M.O. 2/crowbar came to be seized from the house of accused No. 1. PW-5 has turned hostile; however, PW-6 has supported the case of the prosecution; but he admits that he has signed the recovery panchanama in the Police, Station. PWs-7 and 8 are stated to be the eye-witnesses. PW-7 is the daughter of the injured; whereas, PWs-8 and 9 claims to be the tenants of PW-2. PW-10 is the Asst. Sub-Inspector of Police, who recorded the statement of PW-2 in Kasturba Medical College Hospital at Manipal. PW-11 is the doctor attached to Mc. Gann Hospital, who examined the victim immediately after the incident and issued wound certificate as per Ex. P-5; thereafter, he referred to Kasturba Medical College Hospital, Manipal for further treatment. PW.-12 is the PSI, who completed the investigation and laid the charge sheet.

The case of the prosecution is fully dependant on ocular testimony of PWs-1, 2, 7, 8 and 9. Among them, PWs-8 and 9 claim to be the tenants under PW-2 and they are residing in the portion of house, wherein PW-2 is residing; however, nothing has been produced by the prosecution to show that they were the tenants occupying the house of PW-2. On the other hand, the evidence on record clearly discloses that they were co-workers of PW-1 and all of them were working together in a garaze.

Be that as it may, PW-8 clearly admits in his cross-examination that by the time he came to the scene of offence, the incident had already occurred. According to him, PW-2 was assaulted on head and legs with crowbar. He also admits that though he had to go with injured PW-2 for the hospital for getting him treated, he did not go with him and assist him.

PW-9 has also deposed that he was in the first floor of the house when the incident took place and by the time he came to the spot, the incident had already occurred.

He has also not gone to the hospital for getting medical aid to PW-2.

From the aforementioned depositions of PWs-8 and 9, it, is clear that they are not the eye-witnesses to the incident and that they have come to the spot only after the incident had occurred.

PW-2 is the injured eye-witness; in the examination-in-chief he has deposed that all the accused scolded him in filthy language and accused No. 1 assayed him with crowbar on the hind portion of the head around. 2, to 3 times; accused No. 3 assaulted him with club on left arm and left leg; accused Nos. 2, 3 and 4 had held him tightly; thus, in the examination-in-chief he specifies the role of accused No. 1 and other accused. However overt-acts of assault are attributed only as against accused Nos. 1 and 3.

In the cross examination, it is clearly admitted by him that when accused came to the spot he was all alone and his family members came to the scene of offence after he fell down on the ground. This admission of PW-2 injured, completely creates doubt in the mind of the Court as to the presence of PWs-1 and 7 also. PW-2 has further admitted that he did not have any quarrel with accused No. 3 in respect of the disputed site; accused came to the, spot for the purpose of constructing the compound/fence; for that purpose the accused had brought the stone pillars and barbed wire; he specifically admitted that accused did not bring any other articles except the stone pillars and barbed wire. Since he did not allow the accused to put-up the compound/fence, the quarrel took place; at the time of quarrel, number of coolies were also present.

A suggestion is made by the defence that PW-2 sustained injures on the head because of falling on the ground in the quarrel, which took place between accused and PW-2; however, the said suggestion is denied.

From the aforementioned deposition of PW-2 in the cross-examination, it is clear that he was all alone in the scene of offence when accused came to the spot; the family members of PW-2 came to the spot only after he fell down on the ground. It is also clear that the accused did not bring any article except stone pillars and barbed wire for putting up the compound/fence around the disputed site; since PW-2 did not allow the accused to put-up the compound, the quarrel started. As it is admitted by PW-2 that the accused did not bring any other articles except stone pillars and barbed wire, it would be very difficult for the Court to believe the version of the prosecution witnesses that accused No. 1 assaulted PW-2 with crowbar around 2-3 times.

Though the version of PWs-1 and 7 prima-facie appears to be consistent and cogent with the version of PW-2, their presence on the spot itself appears to be doubtful, in view of the dear admission by PW-2 that he was all alone till he fell down on the ground. In this view of the matter, Trial Court, in our considered opinion, is justified in disbelieving the evidence of PWs-1, 7, 8 and 9.

It is the case of the prosecution that the victim has suffered grievous injuries on the head as well as on the left leg, but such case is not proved by the prosecution beyond reasonable doubt. Admittedly, the victim was admitted to the Mc. Gann Hospital at about 8.40 a.m. after giving first aid treatment, the injured was shifted to a private hospital namely Nanjappa hospital; thereafter, he was shifted to Kasturba Medical College Hospital, Manipal. Virtually, the doctor at Mc. Gann Hospital did not treat PW-2, in as much the doctor has examined PW-2 and gave first aid treatment and thereafter, referred the patient to Nanjappa Hospital. The doctor, who treated PW-2 is PW-11; he has issued the wound certificate as per Ex. P-5. The doctor PW-11 has deposed that the victim has suffered three injuries i.e., a) lacerated injury on the hind portion of the head measuring 5 X 1 cm and bleeding was present; b) there was a bleeding in the left ear; and c) there was pain on the left knee. He did not subject the patient to X-ray examination, etc. Therefore, he did not have the first hand information whether the victim had suffered grievous injury or not. However, he has deposed before the Court based on the report of doctors at Kasturba Medical College Hospital, Manipal. According to him, the doctor at Kasturba Medical College Hospital, Manipal had reported that the victim had sustained grievous injuries. It is clearly admitted by PW-11 that he has given such an opinion in Ex. P-5 that victim has sustained grievous injury, purely based on the report of doctors of Kasturba Medical College Hospital, Manipal.

Curiously, in this matter, the medical records pertaining to Kasturba Medical College Hospital, Manipal are not brought on record; even the so called report on which PW-11 relies upon for the issuance of wound certificate, Ex. P-5 is also not produced; thus, it is clear that there is suppression of material facts. The medical records of Kasturba Medical College Hospital, Manipal, would have revealed the injuries sustained, and seriousness of the injury sustained. In the absence of medical records, more particularly,, when the defence has averred that the injuries sustained is because of falling on the ground, we are of the clear opinion that the opinion as furnished by PW-11 in Ex. P-5 that the injuries sustained by PW-2 are grievous in nature, cannot be accepted.

It is further admitted by the doctor/PW-11 in the cross-examination that immediately after admission of PW-2 to the hospital, at the time of treatment PW-2 has stated before the doctor that accused Nos. 1 and 4 assaulted him with chopper and hands. Hence, it is clear "that the prosecution might have created theory of assault by crowbar. Even otherwise, if any person is assaulted on the head by crowbar about 2 to 3 times, his head will fracture to pieces; But not even a small fracture in the skull has occurred in this case; however, there is bleeding injury on the hind portion of the head of PW-2.

Looking to the entire evidence on record, we are of the clear conclusion that it was accused No. 1 alone, who assaulted PW-2 to certain extent on his head. Though the prosecution has failed to prove as to which weapon has been used for commission of offence, fact remains that the victim has sustained bleeding laceration measuring 5 X 1 cm, consequent upon which there was bleeding in left ear also. Admittedly, there was no injury on the left leg, when PW-11 examined PW-2 immediately after the incident.

Though the incident as put forth by the prosecution before the Court has not occurred, but the fact remains that some incident has occurred; accordingly, the counter case was also initiated in which even the injured herein (PW 2) is sentenced for the offence punishable under Section 504 read with Section 34 of IPC along with others. However, we do not find any role of other accused (other than accused No. 1) in assaulting PW-2; they may be present on the spot for the purpose of putting up the fence or the compound, but that does not mean they participated in the incident or instigated accused No. 1 for the offence. Since the reliable material is not produced to prove that PW-2 has sustained grievous injury, accused No. 1 is liable to be convicted for the offence punishable under Section 324 of IPC.

We find that the reasons assigned and the conclusion arrived at by the trial Court is improper and not correct. The reasons assigned by the trial Court for disbelieving the version of PW-2/injured witness, are not, justified, more particularly when PW-2''s version before the Court fully supports the case of the prosecution; he is fair enough to depose before the Court that his family members came to the spot after he fell down on the ground. We find that though there are some exaggerations, his evidence relating to the incident of assault by Accused No. 1 is acceptable to a major extent. Therefore, we disagree insofar as it relates to acquittal of accused No. 1 is concerned.

The records maintained by the Trial Court disclose that accused No. 1 has already undergone imprisonment for about 51/2 months. The sentence of imprisonment, undergone by accused No. 1 already, would be sufficient sentence to be imposed in this case. Accordingly, the following order is made:

a. The judgment and order of acquittal passed by the Trial Court acquitting accused Nos. 2 to 5 stands confirmed.

b. The judgment and order of acquittal passed by the Trial Court acquitting accused No. 1 for all the offences, with which he was charged except the offence punishable under Section 324 of IPC, stands confirmed.

c. The accused No. 1 convicted for the offence punishable under Section 324 of IPC and he is sentenced to undergo imprisonment for a period that he has already undergone.

d. Since accused No. 1 is already undergone the punishment of sentence imposed, there is no need to take him to custody once again in respect of crime No. 127/2009 of Kote Police Station, Shimoga.

e. The appeal is allowed in part to the said extent accordingly.