Siddaram and Others vs The State

A.V. Chandrashekara, J—The present appeal filed under Section 374(2), Cr.P.C. is directed against the judgment of conviction and sentence passed by the II Additional Sessions Judge, Gulbarga, in Spl. Case No. 254/10. The appellants had faced a trial for the offences punishable under Sections 143, 147, 323, 341, 504 read with Section 149, I.P.C. and Sections 3(1)(x) and (xi) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. After recording the evidence of 10 witnesses and marking four exhibits, the learned special judge has chosen to convict the accused for the offences punishable under Sections 143, 323, 341, 504 read with Section 149, I.P.C.

Following is the operative portion of the order as found in page 15 of the impugned judgment:

ORDER

Accused Nos. 1 and 2 are convicted u/Sec. 235(2) of Cr.P.C. for the offence u/Sec. 341 read with 34 of Indian Penal Code and sentenced to undergo simple imprisonment of one month and to pay fine of Rs. 500/- each. In default of payment of fine, they shall undergo further simple imprisonment for fifteen days.

They are further sentenced to undergo simple imprisonment of one year for the offence u/Sec. 504 r/w Sec. 34 of Indian Penal Code and to pay fine of Rs. 5,000/- each. In default of payment of fine, they shall undergo further simple imprisonment for six months.

Accused Nos. 1 to 8 are convicted u/Sec. 235(2) of Cr.P.C. for the offence u/Sec. 143 r/w 149 of Indian Penal Code and sentenced to undergo simple imprisonment of six months and to pay fine of Rs. 2,500/- each. In default of payment of fine, they shall undergo further simple imprisonment for three months.

They are further sentenced to undergo simple imprisonment of six months for the offence u/Sec. 323 r/w Sec. 149 of Indian Penal Code and to pay fine of Rs. 2,500/- each. In default of payment of fine, they shall undergo further simple imprisonment for three months.

Accused Nos. 1 to 8 sentenced to undergo simple imprisonment of one year for the offence u/Sec. 504 r/w Sec. 149 of Indian Penal Code and to pay fine of Rs. 5,000/- each. In default of payment of fine, they shall undergo further simple imprisonment for six months.

The sentences shall run concurrently.

Accused are entitled to set off as provided u/Sec. 428 of Cr.P.C.

Give free copy of this judgment to the accused forthwith.''

The case of the prosecution in brief is as follows:

(a) Complainant-Nagamma was a resident of Hiroli village, Aland Taluk. She is a member of scheduled caste. On 10.3.2010 at 4.40 p.m., she was returning to her house after attending school. When she reached a place near Ambabhavani temple, accused Nos. 1 and 2 prevented her from going further. Both of them abused her in filthy language and immediately her brother-Anil came and asked them as to why they were accusing her. Both the accused abused him also by using filthy language.

(b) Thereafter the complainant and her brother went to their house. On the same say at 5.30 p.m., all the accused came to their house and abused Anil and asked him as to why he had made up his mind to lodge a complaint against them. Stating so, 3rd accused caught hold of his shirt and assaulted him on his cheek; Raju-4th accused kicked him; Prakash-5th accused pulled him down; Shivaraya Golkar (7th accused) kicked him on the stomach and Peer Ahmed (8th accused) and Basavaraj (6th accused) abused him. Immediately Ramling Kinagi (P.W. 5), Babu (P.W. 8), Muttanna (P.W. 7) and Suryakant (P.W. 6) came there and rescued the complainant and her brother.

(c) Thereafter complainant lodged the first information in Madanhippargi police station and a case was registered in Crime No. 14/10 before the jurisdictional judge for the above offences. After concluding investigation, charge sheet was filed before the special court. All the accused pleaded not guilty in respect of the charged levelled against them.

Learned counsel representing the appellants, Mr. Avinash Upalaonkar has vehemently argued that the learned judge has not properly assessed the evidence of all the witnesses in right perspective and that the first information stated to have been lodged by the complainant is no first information in the eye of law, and it is hit by Section 161, Cr.P.C.

Per contra, Mr. Maqbool Ahmed has relied on the evidence of eyewitnesses in support of the prosecution case. He has argued that the learned judge has assessed the evidence in right perspective and no error is committed by the trial court.

After hearing the learned counsel for the parties and going through the records, the following points arise for consideration of this court:

(1) Whether the trial court is justified in convicting the accused for the above offences?

(2) Whether any interference is called for and if so, to what extent?

REASONS

Point No. (1): The degree of proof required in a criminal case is much higher than the one required in a civil case. The evidence adduced in a civil case will be tested on the touchstone of preponderance of probabilities; whereas a higher degree of proof is required in a criminal case. Therefore, prosecution is expected to prove the guilt of the accused beyond all reasonable doubt. What is ''proof beyond reasonable doubt'' has been succinctly explained by the Hon''ble apex court in the case of State of U.P. Vs. Krishna Gopal and Another, AIR 1988 SC 2154 : (1989) CriLJ 288 : (1988) 3 Crimes 195 : (1988) 3 JT 544 : (1988) 2 SCALE 632 : (1988) 4 SCC 302 : (1988) 2 SCR 391 Supp . The relevant discussion is found in paragraph 13 and the same is extracted below:

There might also be some justification for the grievance of the appellant that the High Court had preferred some observations in the medical-evidence-which Sri Prithviraj characterised as merely conjectural answers-to the other categoric answer by the very medical-witnesses themselves. So Prithviraj also submitted that if would be erroneous to accord undue primacy to the hypothetical answers of medical-witnesses to exclude the eye-witnesses'' account which had to be tested independently and not treated as the "variable" keeping the medical-evidence as the "constant".

It is trite that where the eye-witnesses'' account is found credible and trustworthy, medical-opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bantham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial-process. Eye witnesses'' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical-evidence, as the sole touch-stone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be credit-worthy; consistency with the undisputed facts; the ''credit'' of the witnesses; their performance in the witness-box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.

A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amount to ''proof'' is an exercise particular to each case. Referring to the inter-dependence of evidence and the confirmation of one piece of evidence by another a learned author says: (See: "The Mathematics of Proof-II": Glanville Williams: Criminal Law Review, 1979, by Sweet and Maxwell, p. 340 (342).

"The simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited art with the specified state of mind are generally dependent. A juror may feel doubt whether to credit an alleged confession, and doubt whether to inter guilt from the fact that the dependant fled from justice. But since it is generally guilty rather than innocent people who run away, the two doubt are not to be multiplied together. The one piece of evidence may confirm the other."

Doubts would be called reasonable if they are free from a zest for abstract speculation law cannot afford any favourite other than truth. To constitute reasonable doubt, it is must be free from an over emotional response. Doubts may be actual and substantial doubts as to the guilt of the accused-person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and commonsense. It must grow out of the evidence in the case.

The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective-element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common-sense and, ultimately, on the trained intuitions of the judge. While the protection given by the criminal process to the accused-persons is not to be eroded, at the same time, uninformed legitimisation of trivialities would make a mockery of administration of criminal justice.

First information is stated to have been lodged by the victim-Nagamma at 12.30 p.m. on the afternoon of 11.3.2010. The incident of eve-teasing is stated to have taken place on 10.3.2010 at 4.40 p.m. The alleged incident of assault on P.W. 4-Anil is stated to have taken place on the same day, i.e. 10.3.2010 at 5.30 p.m. First information in respect of cognizable offences must be lodged before the jurisdictional police without undue delay. Similarly first information report prepared by the police on the basis of first information will have to be lodged before the magistrate without undue delay. If there is inordinate delay in lodging first information, it weakens the prosecution case because delay may give room for sufficient deliberation before lodging first information. This would also give scope for embellishment of truth. The principles to this effect have been succinctly explained in the case of Ishwar Singh Vs. State of U.P., AIR 1976 SC 2423 : (1976) CriLJ 1883 : (1976) 4 SCC 355 : (1976) SCC(Cri) 629 .

Nagamma, the author of Ex. P1-first information, is examined as P.W. 1. She has virtually reiterated the contents of Ex. P1 in her examination-in-chief. On going through the entire evidence of P.W. 1, nothing is elicited to discredit her version. If one were to read her evidence, it appears that the first information was lodged only at 12.30 p.m. on 11.3.2010. Whether Ex. P1 is really the first information in terms of Section 154, Cr.P.C. will have to be looked into. Therefore, it is useful to scan the evidence of P.W. 4-Anil.

Admittedly P.W. 4-Anil is the brother of P.W. 1. It is his case that he was assaulted by all the accused and abused with reference to his caste, and they threatened him with dire consequences to his life. In paragraph 4 of his examination-in-chief, P.W. 4 has deposed that somebody had telephoned to the police from his village and police came at about 6.30 p.m. and took him from the scene of offence to Madanhippargi hospital. In paragraph 6, he has deposed that after taking him to the hospital, he was brought to Madanhippargi police station and he was released on the next day. Since he had sufficient pain, he went to the hospital and the doctor therein referred to him go to Gulbarga hospital and he was accompanied by a police constable to Gulbarga where he was treated as in-patient for 3 days.

From the evidence of P.W. 4 as found in his examination-in-chief, it discloses that P.W. 4 had already given information about the alleged incident to the police. It is not as though the police were unaware of the incident of eve-teasing and assault prior to the lodging of Ex. P1. The prosecution has not chosen to cross-examine this material witness on this relevant aspect found in paragraphs 4 and 6 of his examination-in-chief.

As rightly pointed out by Mr. Avinash Upalaonkar, learned counsel for the appellants, the evidence of P.W. 4 found in paragraphs 4 and 6 stares at the very case of the prosecution. Therefore the information stated to have been lodged by Ningamma vide Ex. P2 cannot be considered as first information in terms of Section 154, Cr.P.C. By the time the written report was submitted by P.W. 1, police had already clear information about the incident in question and they did not choose to register any case. If one were to accept that somebody in the village had telephoned and they had come on the same evening and took him to the hospital and thereafter to the police station, that was the first information and therefore, Ex. P1 is hit by Section 161, Cr.P.C.

There was inordinate delay in lodging the so-called first information by P.W. 1 and this aspect has not been considered by the trial court while evaluating evidence. If there is inordinate delay in lodging first information, a substratum of the prosecution case becomes weak. According to the prosecution, P.W. 5 to P.W. 8 were the eyewitnesses to the incident in question. P.W. 5-Ramling has deposed that 3rd accused assaulted Anil with hands on his cheek and 4th accused kicked Anil on the thigh and 5th accused dragged him and made him fall down and 7th accused kicked with his legs on the thighs of Anil, and 6th accused and another abused him with reference to his caste. He is also a member of the same caste and lives at a distance of 220 ft. from the house of Anil. He was the president of Taluk Dalit Sangarsh Samiti.

P.W. 6-Suryakant has deposed in his cross-examination that by the time he went to the spot, 15 persons were already there and he does not know as to who assaulted whom and who abused whom. He has specifically deposed that he did not see the assault being made and also did not listen to the abuse. Evidence includes cross-examination. The cross-examination of P.W. 6 discloses that he does not know much about the incident in question. It is his case that he had stood at a distance and there were about 15 people.

If really P.W. 4 had been manhandled in the manner as testified by P.W. 4 and other witnesses and if he had been really treated by the doctor at the PHC and later on in the district hospital as an in-patient, he would have sustained some external injuries and it would have been reflected in any medical records. If he had sustained the injuries, he would have obtained treatment and would have produced medical records. Either he had not sustained any injuries or if he had sustained, he has suppressed material documents from being produced. So adverse inference will have to be drawn under Section 114(g) of the Evidence Act.

P.W. 7-Muthanna has specifically deposed that by the time he went to the spot, the incident was already over. Therefore much credence cannot be attached to the evidence of P.W. 7. P.W. 8-Basavaraj is also stated to be an eyewitness. In cross-examination he has specifically deposed that one Sidramappa had already filed a case against Anil and 12 others before the police in the year 2009. It is his case that police did not record his statement at all. This clearly shows that there was enmity between the two.

Inordinate delay in lodging first information and enmity between the parties has not been considered by the trial court while evaluating the evidence. The learned judge has laid much stress on the evidence of eyewitnesses on the ground that they were present at that time. Their names are found in Ex. P1-alleged first information. As already discussed, Ex. P1 is no first information in the eye of law and information was given by P.W. 4 when he was taken to the hospital and then to Madanhippargi police station. Therefore Mr. Avinash Upalaonkar has argued that the genesis of the prosecution is suppressed. There appears to be much force in the submission.

Though the PSI who received Ex. P1 is cited as a witness in the charge sheet, he is not examined. He was the best person to speak about Anil examined as P.W. 4 being brought to the police station on the evening of 10.3.2010. No reasons are forthcoming. Important material forthcoming in the evidence of P.W. 4 vide paragraphs 4 and 6 have virtually been ignored by the trial court. No discussion is forthcoming on this aspect by the learned judge. There is no whisper of non-examination of the PSI at the relevant point of time. The learned judge of the trial court has laid much emphasis on the evidence of P.Ws. - 5 to 8 on the ground that they are neighbours of Anil and were present at that point of time and nothing is placed on record to suspect their bona fides.

As already discussed, the evidence of these material witnesses will have to be assessed in the light of serious lacunae found in the prosecution case. Suffice to state that the approach of the trial court is improper and incorrect. The initial responsibility cast on the prosecution to prove the guilt of the accused beyond all reasonable doubt is not effectively discharged and therefore the onus does not shift on the other side to explain their stand.

In fact, P.W. 4 has deposed in his cross-examination that he went to Madanhippargi hospital on 12.3.2010 and then to Gulbarga hospital on 13.3.2010 and the police did not record his statement when he went to the police station. He has specifically deposed that after the police freed him from the police station, he did not come to the police station at all. Thus there are a lot of glaring inconsistencies in the evidence of P.W. 4-Anil which dents into the prosecution case. These contradictions have not been taken note of by the trial court while evaluating the evidence. Thus on re-appreciation of the entire oral and documentary evidence, this court is of the opinion that the trial court has adopted a wrong approach to the real state of affairs and has not assessed the evidence in right perspective. It has ignored the material lacunae found in the prosecution case. Thus the trial court is not justified in convicting the accused for the above offences. Hence point No. (1) is answered in the negative.

Point No. (2): In view of the negative finding on point No. (1), the appeal will have to be allowed in entirety and consequently the judgment of conviction will have to be set aside.

In the result, the following order is passed:

ORDER

The appeal filed under Section 374, Cr.P.C. is allowed. The judgment of conviction and sentence dated 21.6.2011 passed ion Spl. Case No. 254/10 on the file of II Additional Sessions Judge, Kalaburagi, is set aside and the appellants are acquitted of all the charges leveled against them. Bail bonds executed by them and the sureties shall stand cancelled. Fine amount, if any, paid by the appellants, shall be returned after the appeal period is over.