N. Krishnaiah vs State of Karnataka

H.S. Kempanna, J.—This revision, preferred by the original Complainant, is directed against the concurrent Judgment and orders of the courts below acquitting the accused-respondent No. 2 to 5 herein of the offences punishable under Sections 323, 324, 326, 506 read with Sec. 34 of IPC.

It is the case of the prosecution, on 03.05.1997 at about 5.00 pm at Karimaranahalli, the accused, in furtherance of their common intention, picked up quarrel with PW4-original Complainant in respect of laying of bricks and thereafter the accused assaulted the Complainant-PW4 with brick on his right side of the head, right arm, fisted on his back and threatened him with dire consequences.

It is the case of the prosecution PW4 had come to his father-in-law''s house at Karimaranahalli, which is also the place of his brother-in-law. On 03.05.1997 at about 5.00 pm he was laying the bricks in front of the house of his father-in-law. At that point of time, the accused came via the said way. Noticing the accused passing through the place where he was laying the bricks he told the accused that they could take the path way, which is running abutting the place where he was laying the bricks. At that juncture, it is the case of the prosecution, the accused in furtherance of their common intention, picked up quarrel with him, i.e., PW4 and among the accused, accused No. 1 & 3 assaulted him with brick on the right side of his head, accused No. 2 assaulted him with club on his right fore arm and accused No. 4 fisted on his back and they also threatened him with dire consequences.

On account of assault made PW4 sustained injuries and in the mean time, PW5, 6 and 7 came to the said place and rescued him. Thereafter, PW4 proceeded to Thyamagondlu Police Station at about 6.30 PM along with PWs 5, 6 and 7 and there he filed his first information as per Ex. P3. After filing Ex. P3 he went to Thyamagondlu Primary Health Center, where he was clinically examined by PW2, the Medical Officer, who is also examined again as PW9. The said Medical Officer advised him to go to higher hospital. On his advise PW4 on 05.05.1997 went to Dabaspete Government Hospital. There he was treated by PW8, the Medical Officer. X-rays were taken, which revealed that he had sustained fracture of his right ulna. He was referred back to the doctor at Thyamagondlu. Thereafter, it is the case of the prosecution, on 19.05.1997 PW4 came to Navarang Hospital at Bangalore and got himself treated with PW11, the Medical Officer. Thereafter, he took treatment at the hands of PW12, Medical Officer at Dabaspete. After having treated at Dabaspete, he got himself treated at Shekar Hospital, Bangalore on 07.07.1997. At the said hospital the fracture which he had sustained to right ulna was set right under surgery by PW13, the Medical Officer. He was discharged from the said hospital on 09.07.1997.

It is the case of the prosecution, in the meantime, investigation of the case had been conducted by PW3, the Head Constable and on completion of the investigation he submitted final report. After submission of the final report an application was filed by the Complainant before the trial Magistrate alleging that fair investigation has not been conducted in the case, as he had not examined the relevant Medical Officers, who have examined him and had not collected relevant documents from the respective hospitals, where he had taken treatment. Therefore, sought for further investigation u/s 173(8) of Cr. P.C. That application came to be rejected by the trial court. As against the said order the Complainant preferred revision petition before the Sessions Court. The revisional court dismissed the said petition. As against the said order the Complainant preferred criminal petition before this Court in Crl. P. No. 2043/2000. This court by the order dated 16.08.2000 allowed the said petition and directed the Magistrate to ''allow such of the further materials that may be produced before court u/s 311 of Cr. P.C. In pursuance of the said order further investigation was conducted by PW14-Police Sub-Inspector of Thyamagondlu Police Station. PW14, thereafter on collecting relevant material including the medical certificates and X-rays, where PW4 had taken treatment, filed final report before the jurisdictional Magistrate.

At the trial the prosecution in support of its case examined PW1 to PW14 and got marked Ex. P1 to P16 and MO1 to 3. After closure of the prosecution evidence the accused were examined u/s 313 of Cr. P.C., under which they denied all the incriminating circumstances that were put to them. Thereafter they were called upon to enter on their defence and to lead any evidence that they may have in support thereof. They submitted that they have no defense evidence. Total denial of the prosecution case is the defence of the accused. The learned trial Judge on considering the evidence and documents placed on record came to the conclusion that the prosecution has failed to establish the charges leveled against the accused, accordingly, by judgment and order dated 22.08.2007 acquitted the accused-respondent No. 2 to 5 herein of the alleged charges leveled against them. The State being aggrieved by the said order of acquittal preferred Crl. A. No. 79/2007 before the learned Sessions Judge, Bangalore Rural District, Bangalore, which transferred the said case to the Presiding Officer of Fast Track Court-III, Bangalore Rural District, Bangalore. The Presiding Officer of Fast Track Court on hearing the learned Public Prosecutor for the State, learned counsel for the accused and on perusal of the record dismissed the appeal preferred by the State and confirmed the judgment and order of acquittal passed by the trial court. The original Complainant being aggrieved by the said judgment and order of acquittal passed by the courts below is in revision before this Court.

The learned counsel appearing for the petitioner-original Complainant submits the courts below have erred in not appreciating the evidence of PW4-injured in its right perspective. In this regard, it is submitted PW4, being the injured witness, his evidence ought not to have been brushed aside, unless there are strong circumstances to point out that his evidence is unbelievable having regard to the other material on record, more particularly, medical evidence. He submits the evidence of PW9 to 13, the Medical Officers, examined in the case would clearly go to show that he had sustained injuries as claimed by him, caused by the accused, including fracture that he had sustained to right ulna. This part of the evidence that has been let in by the prosecution has not been properly appreciated by the courts below, which has resulted in mis-carriage of justice. He further submits evidence of PW4 is fortified from the medical evidence on record, which is also substantiated by the evidence of independent eye witnesses PW5 to 7, who have come to the spot and have taken PW4 firstly to the Thyamagondlu Police Station, where first information was filed and thereafter to Thyamagondlu Primary Health Center for treatment. Nothing has been elicited in their evidence to discard their testimony. The courts below without appreciating the said evidence, which is consistent and cogent on record in its right perspective have committed an error in holding that the charge leveled against the accused has not been established, which cannot be sustained and it be set aside and the matter be remanded back to the trial court for fresh disposal in accordance with law.

The learned Government Pleader appearing for the respondent No. 1-State supported the contentions urged by the counsel for the petitioner.

Per contra, the learned counsel appearing for the accused-respondent No. 2 to 5 supported the impugned order of the courts below. He also submitted since concurrent findings of the order of acquittal is passed on appreciation of the evidence, unless there are strong reasons to interfere with the same this Court cannot lightly to interfere with the order of acquittal and therefore, there is no merit in this petition. Hence, revision be dismissed.

In view of the rival contentions, evidence and the documents on record, the point that arise for my consideration is:

Whether the impugned orders of the courts below calls for interference in this revision petition?

It is settled position of law that the order of acquittal passed by the courts below cannot be interfered with, unless it is shown to the Court that the said order is perverse and not based on evidence. In this particular case, it is the case of the prosecution, the occurrence took place on 03.05.1997 at about 5.00 pm near the house of the father-in-law of the PW4 at Karimaranahalli, coming within the jurisdiction of Thyamagondlu Police Station. In the said occurrence, it is the case of the prosecution, accused in furtherance of their common intention, assaulted the Complainant PW4 with'' bricks, clubs, fisted, caused him injuries and threatened him with dire consequences. It is specific case of the prosecution accused No. 1 & 3 assaulted the Complainant with brick on the right side of his head, accused No. 2 assaulted with club on his right fore arm and accused No. 4 fisted on his back. Evidence on record reveals PW1 was treated by PW2, who is again examined as PW9, at Thyamagondlu Primary Health Center on 03.05.1997 at 6.45 pm or 7.00 pm. The evidence of said Medical Officer does not reveal PW4 having sustained any injury on the right side of his head, which is alleged to have been caused by accused Nos. 1 & 3 with brick. The specific case made out is that he had sustained fracture of right ulna, which according to prosecution had been caused by accused No. 2 by assaulting him with club. Evidence further discloses PW4 was referred to higher hospital by PW2 on 03.05.1997. Accordingly, he went to Dabaspete Government Hospital on 05.05.1997 and took treatment with the Medical Officer-PW8. The evidence of PW8 disclose on that day he examined him, took X-ray which revealed that he had sustained fracture of his right ulna and he referred back PW4 to Thyamagondlu Hospital. Thereafter evidence on record reveals on 19.05.1997 he took treatment in Navrang Hospital at Bangalore at the hands of Medical Officer-PW11. A perusal of the evidence of PW11 reveals PW4 had come with the complaint of pain in the waste, he examined him and X-rays were taken. Thereafter, he gave him some capsules and sent him back. His evidence does not reveal that he had sustained fracture of right ulna nor X-ray which was taken revealed PW4 having sustained fracture. Evidence on record further reveals after taking treatment with Medical Officer-PW11, he went to Dabaspet and took treatment with PW12 Medical Officer. What was the treatment given by PW12 is not forthcoming from his evidence. The evidence further reveals, on 07.07.1997 PW4 took treatment at the hands of PW13 at Shekar Hospital, Bangalore. The testimony of PW13 reveals he treated PW4 and fracture was set right under a surgery. Here it is necessary to mention that records do not disclose it was this petitioner who was treated because the name of PW4 is ''Krishnaiah'' and the person who was treated at Shekar Hospital is Venkatakrishnaiah'' and not ''Krishnaiah''. That apart, if according to PW4 he had sustained fracture of right ulna, firstly, PW8 would not have sent him back to Thyamagondlu Hospital, nextly, he would not waited till 19.05.1997, when he took treatment at the hands of PW11. On 19.05 1997 also there is no evidence to show that he had sustained any fracture to his right ulna as PW11 clearly stated in his evidence that on his examination he also advised him for X-ray which did not reflect any fracture. There is no evidence to show till such time this person having sustained any fracture. Further, he has also got examined at the hands of PW12, Medical Officer at Dabaspete. All these things would go to show that PW4 has gone from one place to another and one doctor to other but there is no material placed on record to show that he had sustained fracture of right ulna for which he had taken treatment at the hands of different doctors and at different places. Evidence on record of the Medical Officers would go to show that it is ''Venkatakrishna'', who had sustained fracture for which they had treated and not PW4 who is ''Krishnaiah''. The trial court has rightly observed at Para-20 to the effect X-ray that has been relied upon does not concern to PW4. Further the evidence of PW4 is not corroborated from the testimony of PW5 to 7 either in respect of alleged assault on him or in respect of he having been taken from the spot of occurrence to Police Station and to the hospital. The courts below on appreciation of evidence on record have come to the right conclusion in holding that prosecution has failed to establish the charge leveled against the accused. In this petition, the counsel for the petitioner also failed to convince this court that the order of acquittal recorded by the courts below suffers from any infirmity either on facts or on legal grounds calling for interference in this revision petition. Accordingly, there is no merit and it is dismissed.