Ramakrishna and Others vs The State of Karnataka

Mohan M. Shantana Goudar, J.—1. The judgment and order of conviction dated 18.01.2012 passed by the learned Addl. Sessions Judge, Mandya, in S.C. No. 5/2010, is called in question in this appeal by the convicted accused.

The trial court, by the impugned judgment has convicted A-1 for an offence punishable under Section 302 of IPC; A-2 & A-4 for the offences punishable under Sections 324 and 504 of IPC; and A-3 for the offences punishable under Sections 323 & 504 of IPC.

Case of the prosecution in brief is that the dispute was existing between the accused and the deceased in respect of a chit transaction; at about 1 a.m., on 03.09.2009, accused came to the house of the deceased and picked up quarrel with him and his son; accused Nos. 2 to 4 scolded the deceased in filthy language and used criminal force against him; accused No. 1 assaulted the deceased with a club on his left portion of the head, consequent upon which, the deceased sustained bleeding injuries; accused No. 2 also assaulted the deceased on his eyes with a club; accused No. 3 assaulted the deceased with hands and accused No. 4 snatched the club from the hands of accused No. 2 and assaulted the deceased on his nose. PW-1 (the complainant) and her son (CW-3) rescued the deceased Cheluvegowda and took him to K.R. Pet Govt. Hospital. Thereafter, he was shifted to K.R. Hospital, Mysore, for higher treatment. The injured succumbed to the injuries at about 4.45 a.m., In the meanwhile, at about 3 a.m., on the same day, complaint came to be lodged by PW-1 before the Sub-Inspector of Police at K.R. Pet police station as per Ex. P1, which came to be registered in Cr. No. 219/2009 for offences punishable under Sections 504, 323, 324, 307 r/w 34 of IPC. The FIR as per Ex. P19 was prepared and was sent to the jurisdictional Magistrate. PW-12 Inspector of Police has completed the investigation and filed the charge sheet.

In proof of its case, the prosecution in all examined 12 witnesses and got marked 26 Exhibits and 7 M.Os. On behalf of the defence, no witness was examined. The trial court on evaluation of the materials on record, convicted the accused as aforementioned.

Sri. S. Venkatesh, learned counsel appearing for the appellants taking us through the material on record, submits that all the witnesses except two Doctors and the I.Os. have turned hostile; wife of the deceased and son of the deceased have also turned hostile to the case of the prosecution; there is no reliable material to support the case of the prosecution; the trial court has gravely erred in convicting the accused solely based on Ex. P11 the MLC Register extract issued by PW-6 and the copy of the complaint Ex. P1, in as much as, no other material is forthcoming; the witnesses who should have supported the contents of complaint Ex. P1 have also turned hostile to the case of the prosecution; Smt. Jayalakshmi, daughter of deceased who had allegedly taken the victim to the K.R. Pet Hospital for treatment immediately after the incident is not even cited as a witness in the charge sheet; nothing is brought on record by the prosecution to show about the complicity of the accused and hence, he prays for acquittal of the accused.

Sri. P.M. Nawaz, learned SPP argued in support of the judgment of the court below.

PWs 1 to 5 are the eyewitnesses to the incident in question. Among them, PW-1 has lodged the complaint as per Ex. P1 at about 3 a.m., immediately after the incident. Based on which, a case was registered. All the five witnesses have turned hostile to the prosecution. PW-6 was the Doctor attached to K.R. Pet Hospital. Immediately after the incident, injured was taken to K.R. Pet hospital, wherein, she was given first aid by PW-6. History of the incident is recorded in Ex. P11-Accident register. The same discloses that the injured was assaulted by Ramakrishna with a bamboo stick at 00.30 a.m. to 1 a.m.; the injured was brought to hospital by his daughter Jayalakshmi; PW-7 is the Doctor who conducted post mortem examination. The Autopsy report is at Ex. P12. PW-8 is the witness for recovery mahazar Ex. P8, under which, two clubs MOs 1 and 2 are seized under the seizure mahazar. PW-9 is the witness for seizure of the clothes of the deceased under mahazar Ex. P8. Both PWs 8 and 9 have turned hostile to the prosecution. PWs 10, 11 and 12 are the police officers, among them, PW-11 is the Sub-Inspector of police who received the complaint Ex. P1 and registered crime. PW-12 completed the investigation and laid the charge sheet.

From the aforementioned narration, it is amply clear that except two Doctors and three police officials, no other witness has supported the case of the prosecution.

As mentioned supra, P.W.1 lodged the complaint as per Ex. P.1. Though Ex. P.1 discloses the names of accused specifically as assailants, the complainant has turned hostile to the case of prosecution before the Court. The contents of Ex. P.1 are not spoken to by the complainant before the Court and hence, the averments made in the complaint are not supported by the oral evidence.

The mahazar witnesses in respect of the recovery of clubs and the blood stained clothes of the deceased have also turned hostile to the case of prosecution. Their evidence is also of no use either to the prosecution or to the accused.

Then, what remains to be considered is the evidence of the doctors (P.Ws.6 and 7). Among them, P.W.7 has conducted the autopsy over the dead body of the deceased. He has given his report as per Ex. P.12. He has opined that the death is due to coma as a result of the head injury sustained. Hence, it is clear from the evidence that the death is homicidal in nature. The deceased had sustained two injuries. One injury was contusion and the another one was comminuted fracture of left front parietal bones region. Looking to the injuries, it is amply clear that the death is homicidal in nature, but the question to be considered is as to who has caused the vital injuries.

In this regard, the prosecution mainly relies upon the evidence of P.W.6 (doctor), who gave the first aid to the victim at about 2.30 a.m. on 3.9.2009. Immediately after the incident, the victim was taken to K.R. Pet hospital and was admitted there. P.W.6 examined the victim and made endorsement on the medical case register (MLC-register) as per Ex. P.11. Ex. P.11 discloses that the patient was brought by Jayalakshmi (daughter of the injured) and the patient was admitted with the history of assault by Ramakrishna (presumably accused No. 1). The contents of Ex. P.11 are spoken to by the doctor (P.W.6). However, the said material is not sufficient to conclude that accused No. 1 assaulted the deceased inasmuch as the said Jayalakshmi, who had given the history as mentioned in Ex. P.11, is not even cited in the charge sheet. There is nothing on record to show that the said Jayalakshmi is daughter of the deceased. It is not in dispute that, at the time of admission of the deceased to the hospital, he was unconscious. Even when the injured left the hospital, he was unconscious. Therefore, the history as recorded by P.W.6 in Ex. P.11 must have been given by the said Jayalakshmi, who was not even cited as a witness in the charge sheet and consequently, the Court cannot rely upon the contents of Ex. P. 11 relating to the history of the incident for coming to the conclusion that the accused assaulted the victim. Therefore, the evidence of P.W.6 also would be of no use to the case of prosecution. The remaining witnesses are the police officials who have come to the spot after the incident. It is no doubt true that the case came to be registered based on Ex. P.1 supposed to be lodged by P.W.1. As mentioned supra, P.W.1 has turned hostile to the case of prosecution. She has deposed that she has not lodged as per Ex. P.1 to the police. In addition to the same, none of the eye witnesses have supported the case of prosecution. The witness for recovery of weapon has also turned hostile to the case of prosecution. In the light of the aforementioned material on record, in our considered opinion, it can be safely concluded that the prosecution has not proved its case beyond reasonable doubt.

The trial Court has proceeded to convict the accused merely on presumptions and assumptions. The criminal case cannot be decided based on assumptions and presumptions. Unless the concrete material, on trustworthy and reliable is brought on record, it would be very difficult for the Court to conclude that the accused have committed the offence for the alleged offence. Thus, practically the case on hand is based on no evidence. In the light of the (nil) material on record, in our considered opinion, the benefit of doubt shall be given to the accused. Accordingly, the accused are entitled to be acquitted.

Hence, the following order is made:

"(a) The appeal is allowed.

(b) The judgment and order of conviction dated 18.01.2012 passed in S.C. No. 5/2010 by the Additional Sessions Judge, Mandya, is set aside.

(c) The accused are acquitted of all the charges leveled against them.

(d) The bail bonds of the accused shall stand cancelled."