Ranajit vs The State of Karnataka

Budihal R.B., J.—The judgment and order of conviction dated 3rd November 2011 passed by the Principal Sessions Judge, Belgaum, in Sessions Case No. 177/2010 is called in question in these two appeals.

Criminal Appeal No. 2896/2011 is preferred by the appellant/accused No. 2 challenging the conviction. Criminal Appeal No. 2851/2012 is preferred by the appellant-State on the ground that the sentence imposed by the Trial Court is inadequate and the same requires to be enhanced.

The brief facts of the prosecution case before the Trial Court are that P.W. 5, who is said to be the injured in the case, filed a complaint as per Ex. P.3 alleging that he is residing in the address as mentioned in the complaint. On 25.10.2008 at about 9.30 p.m. the complainant along with his friends P.W. 1-Vilas Roopsingh Chavan, P.W. 2-Kantu Ramappa Badagi and P.W. 3-Basavaraj Gangappa Khot went to Harsha Dhaba near Harugeri Cross to have the dinner. At that time, accused No. 1-Kumar Kallappa Kamble, came to the dhaba and called the complainant to come outside. The complainant went outside along with accused No. 1 and accused No. 1 requested the complainant to order liquor for him for which the complainant refused. Then there was a galata. Then accused No. 1 and accused No. 2, the appellant herein, one Ramu Raosab and Raju along with 4 to 5 other persons took the complainant to the backside of the said dhaba and abused him in filthy language stating that in the election though he was asked to canvass on behalf of the candidate of their side, he had not listened to their words and stating that they will finish him off, with an intention to commit his murder, appellant/accused No. 2, who was holding an iron pipe, tried to assault the complainant on his head and to avoid the blow the complainant raised his hands and he received the blow to the elbow of the left hand. So also, accused No. 2 assaulted on the right thigh and other accused assaulted him with hands. The other persons who came along with the complainant to have the dinner came and pacified the quarrel. There was light. The complainant sustained injuries to his left elbow and was fractured. So also he sustained internal injury to his right thigh. On the basis of the said complaint, the case was registered for the alleged offences. After completing the investigation, the Investigating Officer filed the charge-sheet against the accused persons for the alleged offences punishable under Sections 143, 147, 148, 307, 326, 323, 504 read with Section 149 of the Indian Penal Code. To prove its case, the prosecution examined in all 10 witnesses as P.Ws. 1 to 11 and got marked 16 documents as Exs. P.1 to P.16 and also the material objects M.O. Nos. 1 to 3. On the side of the defence, no witnesses were examined nor any documents were produced. After considering the materials placed on record, ultimately, the Trial Court convicted the present appellant and sentenced him to undergo rigorous imprisonment for a period of one year and also to pay fine of Rs. 5,000/- for the offence punishable under Section 326 of IPC and also to pay fine of Rs. 1,000/- for the offence under Section 504 of IPC. Being aggrieved by the same, the appellant/accused No. 2 is before this Court seeking to set aside the impugned judgment and order of conviction. The State has preferred the appeal on the ground that the sentence imposed by the Trial Court is inadequate and is seeking enhancement of the sentence.

We have heard the learned Amicus Curiae on behalf of the appellant/accused No. 2 and also the learned Additional State Public Prosecutor for the respondent-State.

Learned Amicus Curiae made the submission that looking to the prosecution material both oral and documentary evidence, the prosecution has not proved its case beyond all reasonable doubt. He also drew the attention of this Court to the relevant portion of the depositions of the prosecution witnesses and so also the documents exhibited before the Trial Court and made the submission that the material clearly goes to show that filing of the complaint against the appellant herein is because of the political rivalry that one Mr. Raju who was a Police Officer at Kudachi Police Station, he resigned the said post in the year 2006 and contested for the elections and the appellant and other accused persons had not supported him nor canvassed on his behalf and because of that enmity, a false complaint was lodged. He also made the submission that looking to the evidence of P.W. 5, he has not been able to go to the police station to file the complaint and the person, who is the scribe, wrote the contents of the complaint also deposed before the Court that he does not know the complainant and that he wrote the contents of the complainant as per the say of the Police. He also made the submission that even looking to the evidence of the doctor P.W. 10, it clearly goes to show that once a person is admitted into their hospital till he is discharged, he is not allowed to go out of the hospital. Hence, it is his contention that all these materials clearly goes to show that the complainant had not gone to the police station and that the police themselves with the help of P.W. 3, the scribe, got prepared the complaint in the name of the complainant and registered a false complaint against the appellant herein. He also made the submission that it is the consistent defence of the accused that no such incident has taken place and the complainant sustained injuries while he was travelling on the motor bike and it is his submission that even the doctor admitted the possibility of sustaining such injuries by a person if he falls down from a moving motor cycle and Ex. P.5-seizure mahazar is concerned, it goes to falsify the entire case of the prosecution. Hence, all these important aspects, both oral and documentary were not properly considered by the trial Court and the Trial Court wrongly proceeded to convict the appellant/accused even for the offences under Sections 326 and 504 of IPC. Hence, he submitted to allow the appeal, set aside the impugned judgment and order of conviction and to acquit the appellant/accused No. 2.

Per contra, learned Additional State Public Prosecutor, during the course of the arguments, made the submission that the injured-P.W. 5 himself has been examined as a witness before the Court and he has clearly deposed in his evidence that it is accused No. 2 who assaulted him with the iron pipe and the other accused persons assaulted him with hands. He also made the submission that even the owner of the dhaba has been examined, who has also deposed about all these accused persons as well as the complainant coming to the said dhaba for having the dinner. He also submitted that another independent witness P.W. 7 also supported the case of the prosecution side that he has personally witnessed the incident of causing injuries to the complainant. Hence, it is his submission that in view of these evidence placed on record, the trial Court has rightly appreciated the material and rightly convicted the appellant/accused No. 2 for the alleged offences and that no illegality has been committed by the Trial Court and hence the appeal preferred by the appellant/accused No. 2 is not at all maintainable and the same is to be dismissed.

Learned Additional State Public Prosecutor in support of the appeal preferred by the State also made the submission that the Trial Court has come to the conclusion that there is material placed by the prosecution to prove the offence under Section 326 of IPC as against the appellant/accused No. 2. He submitted that it is a serious offence, the punishment of one year rigorous imprisonment and the fine of Rs. 5,000/- imposed on the appellant/accused No. 2 is totally inadequate and it is not proportionate to seriousness of the offence. Hence learned Additional SPP made the submission that the punishment imposed by the Trial Court requires to be enhanced by allowing the appeal preferred by the State and in support of his contention, he relied upon a Division Bench decision of this Court in the case of State by Kumsi Police v. Mahadeva reported in ILR 2001 KAR 4442.

We have perused the grounds urged in the appeal memorandum in respect of both the appeals, the judgment and order of conviction passed by the Trial Court, the oral evidence of the parties adduced before the Trial Court i.e., P.Ws. 1 to 10 and the documents produced in the case.

Looking to the prosecution case, one Siddalingappa Siddappa Wodeyar is the complainant of this case and he has been examined as P.W. 5. He lodged the complaint-Ex. P.3. We have perused the contents of the complaint and so also his evidence. Firstly, it is the defence of the accused that the motive for filing this complaint is one Raju, who was the police officer in Kudachi Police Station, tendered resignation to the said post in the year 2006 and contested for the election and these accused persons were asked to support him in the said election and canvass on his behalf and they had not done so and Raju lost the election and because of that enmity, to take revenge against the appellant herein and other accused persons, the police got filed a complaint through complainant of this case. Let us examine the material placed on record whether the defence of the accused has been established or probablised by the evidence during the course of the trial. In the complaint-Ex. P.3, it is mentioned by the complainant-P.W. 5 is residing in the address mentioned therein and in the last assembly elections he canvassed on behalf of P. Rajeev and at that time some of the persons were angry on him. But, during the course of evidence before the Trial Court when the same thing was suggested to P.W. 5, he denied the same in the cross-examination (at para No. 2 on page 19 of the paper book). He deposed in the cross-examination that he had studied upto 7th standard; it is true that he participated in the political activities in his village. But, he denied the suggestion that in the assembly elections, he worked and canvassed on behalf of one Raju. He further denied that he is the strong supporter of said Raju. This evidence deposed by the complainant on oath before the Trial Court is completely contrary to what he has stated in the complaint that he is supporter of Raju and in the last assembly elections he worked for Raju. Looking to this material placed on record, the accused persons placed material to probablise their defence that the said complaint is because of political motive and political rivalry.

It is the contention of the defence that the complainant had not at all been to the police station and it is the police in collusion with other persons got prepared the complaint in the name of the complainant. Regarding this contention of the defence, let us examine the evidence placed on record. Admittedly, even according to the case of the prosecution, the contents of the complaint are not in the handwriting of the complainant-P.W. 5 nor in the handwriting of any police officer or official, but they are in the handwriting of a scribe by name Basavaraj Gangappa Khot, who has been examined as P.W. 3 in this case. But looking to the oral evidence of P.W. 3, in the examination-in-chief, he has deposed that charge-sheet witness No. 1-Siddalinga Wodeyar is not at all acquainted to him. He had studied upto S.S.L.C. and he knew reading and writing of Kannada. The complaint Ex. P.3-complaint shown to him was written by him and he had signed the said complaint as per Ex. P.3(a). He wrote that complaint on 26.10.2008 at Kudachi Police Station. He further deposed that 7 to 8 persons not known to him were at the Kudachi Police Station, but the police had called him and asked him to write the contents of the complaint. He had been to the police station for his other work. He deposed that the contents mentioned in the complaint are not at all as per the say or narration by Siddaling Wodeyar-complainant. Even during the course of cross-examination though it was suggested that Siddaling Wodeyar himself narrated the contents of the said complaint in the police station, this witness denied the said suggestion.

Now coming to the evidence of P.W. 5, whether he went to the police station to lodge a complaint or not, in his examination-in-chief, P.W. 5 deposed, at page No. 2, that on the same night of the incident his friends took him to the hospital and that on the next day of the incident at 10.30 a.m. he went to the Kudachi Police Station from the hospital and his friend Basavaraj Khot wrote the contents and he put his signature. He deposed that though he gave the said complaint on 26.10.2008 in the morning at about 10.30 to 11.00 a.m., the same was registered in the evening. In the cross-examination, he deposed that he was in the Harugeri hospital for about 20-22 days as an inpatient. Coming to the evidence of P.W. 10 - the doctor, he has deposed in his cross-examination that the above patient was treated as an inpatient from 25.10.2008 to 08.11.2008 in his hospital. He further deposed that when they admit a patient in their hospital they would not allow him to go out till he is discharged. There is no evidence from P.W. 10, who is the competent person to speak, that whether for a limited period on 26.10.2008 in the morning at about 10.30 a.m., the injured went out of the hospital and again he came back. We have also perused Ex. P.16 the MLC register maintained in the said hospital. In the said entry there is no mention to show that on 26.10.2008 in the morning the complainant went out of the hospital and later be came back. Considering all these materials placed on record and more particularly, the evidence of P.W. 3, the scribe of the complaint deposing that he is not at all acquainted with the complainant nor the complainant gave the narration of the complaint to write it in the police station on that day, we are of the clear opinion that it raises a reasonable doubt in the mind of the Court as to whether the person who narrated the contents to P.W. 3 is the complainant-P.W. 5 or not.

With regard to Ex. P.5 - the recovery panchanama, again it is the case of the prosecution including the investigation officer that on 26.10.2008, the complainant personally came to the spot nearby Harsha Dabha near Harugeri cross and he shown the spot to the police and accordingly they conducted the spot mahazar at the said place. Looking to the evidence of P.W. 5, in the examination-in-chief, he has deposed on page No. 2 he was in the hospital and it was not possible for him to show the spot to the police, but the police themselves went nearby the dhaba and conducted mahazar. Not only that, as per the contents of Ex. P.5 the spot mahazar, it is the case of the prosecution that material objects M.O. No. 1-iron pipe, M.O. No. 2-T-shirt and M.O. No. 3-banian of the complainant were seized at the spot itself. But looking to the evidence of P.W. 5-complainant, he himself admitted on oath that as he was in the hospital, he was not able to go to show the spot to the police, where is the question of seizing the M.O. Nos. 2 and 3 at the spot itself. So these materials also supports the contention of the defence that the injured complainant was in the hospital and he has not at all come out of the hospital till the date of his discharge.

Coming to the injuries sustained by the complainant, looking to the evidence of the prosecution i.e., injury certificate marked through P.W. 10-doctor in the examination-in-chief has deposed that on examination he noticed injury of compound communicated fractures of proximal ulna with dislocation of radial head left upper limb and contusion left leg, but looking to the oral evidence of the prosecution witness, it has come in the evidence that the accused No. 2 assaulted with the iron pipe on the right thigh. So this also goes to falsify the contention of the prosecution. Apart from that it was suggested to the doctor that injuries like the one referred to at Ex. P.8 will be caused if a person accidentally falls from a moving motor cycle, the doctor admitted the possibility of sustaining such injuries. Not only that, the learned counsel while cross-examining P.W. 5 also made the specific suggestion on page No. 3 of his deposition that during the election period when he was moving on the motor cycle, he fell down and sustained such injuries. No doubt the said suggestion has been denied by the witness, but the defence evidence probablises with what has been admitted by the doctor in this case.

With regard to the said Raju is concerned, P.W. 6 who is the Investigating Officer during the course of his evidence though it was suggested to him in the cross-examination that earlier this Raju was the police officer in Kudachi Police station, he resigned to his post and then contested for assembly election, but this witness shown his ignorance, he has not denied this suggestion specifically. Another witness - P.W. 7, who has been examined by the prosecution, is one Hanumant Ramappa Kuri. He deposed in his examination-in-chief that on that day when they ordered for meals and sat, 2 to 3 persons i.e., Kumar Kamble-accused No. 1 came and took P.W. 5-Siddaling at the backside of the said dhaba and within a short time he heard hue and cry and then he went there. Accused No. 2-Ranajit was having a pipe and P.W. 5-Siddaling sustained bleeding injuries to his left elbow and there was injury to his right leg. He was not in a position to walk. He further deposed that he had not personally seen accused No. 2 assaulting the complainant-Siddalinga with the iron pipe, but he saw the other accused persons assaulting the complainant with hands. So, this witness also deposed that he was not personally present nor he saw accused No. 2 assaulting the complainant with the iron pipe and causing injuries. Therefore, even if he is said to be the eye witness to the incident, it will not come to the aid and assistance of the prosecution case. He was treated as hostile. When the Public Prosecutor cross-examined him suggesting that accused No. 2 assaulted the complainant with the iron pipe on his left elbow portion, this witness denied the said suggestion. Looking to this, the prosecution has not placed cogent and satisfactory evidence through the mouth of this witness-Hanumant Ramappa Kuri. Apart from that, in his cross-examination, he has deposed that 2 to 3 days after the incident police called him to the police station and recorded his statement, but whereas the evidence of P.W. 6-I.O. is clearly contrary to the said evidence who deposed in his examination in chief itself that after conducting spot mahazar at the spot, at the said place he recorded the further statement of the complainant and he secured the witness namely Hanumant Ramappa Kuri i.e., P.W. 7 and he recorded his statement at the said place itself. This evidence of the Investigating Officer-P.W. 6 is in clear contradiction to the evidence of P.W. 7-Hanumant Ramappa Kuri. Therefore, considering all these materials placed on record, we are of the clear opinion that the evidence will not inspire the confidence of this Court. Apart from that, the accused persons have established their defence that because of the political rivalry, the said Raju, a retired police officer and through the complainant, they have been falsely implicated in the case. All these materials were not properly read and appreciated by the Trial Court. The Trial Court wrongly read the evidence and wrongly convicted the appellant/accused No. 2 even for the offences under Sections 326 and 504 of IPC. Looking to the materials placed on record, the case of the prosecution raises reasonable doubt in the mind of the Court. The prosecution has failed to prove its case beyond all reasonable doubt. The benefit of the reasonable doubt shall have to be given to the appellant/accused No. 2.

Hence, the appeal preferred by the appellant/accused No. 2 in Crl. A. No. 2896/2011 is allowed and the judgment and order of conviction insofar as the appellant/accused No. 2 is hereby set aside and the appellant/accused No. 2 is ordered to be released forthwith, if he is in custody and if he is not required in any other case. Consequently, the appeal in Crl. A. No. 2851/2012 preferred by the State seeking enhancement of the sentence is hereby dismissed.

We place on record, the valuable assistance of Sri Neelendra D. Gunde, learned Amicus Curiae representing the appellant/accused No. 2, in assisting the Court. We hereby direct the High Court Registry to pay a sum of Rs. 5,000/- towards honorarium to the learned Amicus Curiae.

The fine amount, if any, paid by the appellant/accused No. 2 be refunded to him.