State vs Nithinraj Shetty and Others

Mohan M. Shantana Goudar, J.—1. The judgment and order of acquittal dated 29.8.2011 passed by the III Additional District and Sessions Judge, D.K., Mangalore in S.C. No. 125/2009 is called in question in this appeal by the State.

Case of the prosecution in brief is that, accused Nos. 1 and 2 came on a motor cycle whereas accused Nos. 3 to 8 followed accused Nos. 1 and 2 in a Maruthi Alto Car. All of them were armed with wooden club and reaper; they came near the house of P.W. 17 -Raghavendra; at that point of time, PWs. 1 and 2 also came near the house of P.W. 17; on seeing PWs. 1 and 2, accused No. 3 instigated the other accused to assault PWs. 1 and 2 and accordingly, accused Nos. 1 and 2 who were holding wooden reaper assaulted on the face of P.W. 1 whereas accused No. 2 assaulted on the body of P.W. 1 as well as P.W. 2. The other accused also joined the hands with accused Nos. 1 and 2 to assault PWs. 1 and 2. It is further the case of the prosecution that all the accused entered into the house of P.W. 17 and assaulted him as well as P.W. 2 also. Since P.W. 1 had sustained grievous injuries, he was shifted to A.J. Hospital, Mangalore by P.W. 7 along with P.W. 9; P.W. 1, who had sustained grievous injury, was discharged from the hospital after two days of the incident. The wound certificate of P.W. 1 is at Ex. P10 whereas the wound certificate of P.W. 2 is at Ex. P11. The opinion furnished by the Doctor regarding the weapon used for commission of offence on P.W. 1 is at Ex. P12.

In order to prove its case, the prosecution in all has examined 19 witnesses and got marked 19 Exhibits and 6 Material Objects. On behalf of the defence, one Exhibit was marked. The Trial Court on evaluation of material on record, acquitted all the accused.

Learned Additional Special Public Prosecutor taking us through the material on record submits that, the Trial Court has not at all assigned any valid reason for acquitting the accused; the Trial Court has assumed everything in favour of the accused, while acquitting the accused; absolutely, no reason is assigned by the Trial Court to disbelieve the versions of PWs. 1 and 2, who was the injured eye witnesses. The presence of PWs. 1 and 2 cannot be disputed, inasmuch as they are the injured in the very incident. The reasons assigned by the Trial Court are unacceptable. On these among the other ground, he prays for setting aside the judgment of the Court below.

Per contra, learned Amicus Curiae argued in support of the judgment of the Court below by contending that number of variations are found in the evidence of PWs. 1, 2 and 17. The manner in which the incident has taken place is stated by these alleged eye witnesses in different manner; since the evidence of eye witnesses is contradictory to each other, the Trial Court is justified in acquitting accused by giving benefit of doubt.

On going through the entire material on record and the judgment of the Trial Court, we are of the clear opinion that the Trial Court is not justified in acquitting accused Nos. 1 and 2. Though the judgment of acquittal in respect of the other accused may be just and proper, the Trial Court has ignored ample material found against accused Nos. 1 and 2. Absolutely, no reasons are assigned by the Trial Court as to why it has disbelieved the versions of the injured eye witnesses. In this regard, we have re-appreciated the entire material, more particularly the evidence of the injured eye witnesses viz., PWs. 1 and 2 coupled with the versions of the eye witnesses.

PWs. 1 and 2 are the injured eye witnesses. Among them, P.W. 1 has lodged first information as per Ex. P1. Both these injured were treated in AJ. Hospital, Mangalore by P.W. 13 - Doctor, who issued wound certificate as per Exs. P10 and P11 of PWs. 1 and 2 respectively.

PWs. 3 and 4 are the witnesses for mahazar at Ex. P4, which is scene of offence panchanama as well as seizure mahazar.

P.W. 5 is the witness for mahazar at Ex. P5, under which the stumps are seized from the car parked in the Police Station.

P.W. 6 is also the witness for mahazar at Ex. P6, under which the R.C. Book of the Car is seized.

P.W. 7 saw accused Nos. 1 and 2 speeding away on the motor cycle immediately after the incident. He also saw Alto Car following the motor cycle of accused Nos. 1 and 2. He shifted the injured to A.J. Hospital, Mangalore with the help of P.W. 9.

PWs. 8 and 17 are the eye witnesses to the incident and both of them have supported the case of the prosecution.

As mentioned supra, P.W. 9 shifted the injured to the Hospital along with P.W. 7.

P.W. 10 is the husband of the Alto Car owner, who is a lady. He has deposed that accused No. 8 was the driver and he had taken away the car at 5.00 pm on the date of incident.

PWs. 11, 12 and 19 are the witnesses for Mahazar Ex. P9, under which motor cycle of accused No. 1 was seized.

P.W. 13 is the Doctor attached to A.J. Hospital, Mangalore. He treated PWs. 1 and 2 and issued wound certificate as per Exs. P10 and P11. He also issued medical legal intimation to the Police as per Exs. P13 and P14.

PWs. 14 and 15 are the Police Constables. They participated during the investigation at different levels.

P.W. 16 is the Sub-Inspector of Police. He registered the crime No. 90/2009 in Urva Police Station based on First Information lodged by P.W. 1. He completed the investigation and laid the charge sheet also.

P.W. 18 is the witness for mahazar Ex. P8, under which the blood stained shirt of the P.W. 1 was seized.

P.W. 19 is another witness for panchanama at Ex. P9 relating to seizure of bike.

From the aforementioned narration, it is clear that the case of the prosecution mainly rests on the evidence of eye witnesses of PWs. 1, 2, 8 and 17. The ocular testimony is also supported by the medical evidence.

We have already mentioned that the first information came to be lodged by P.W. 1, who is the injured eye witness. The incident had taken place at about 8.00 pm on 23.6.2009 immediately at about 9.30 p.m. and the first information came to be lodged by P.W. 1 in the Hospital. Thus, there is no delay at all, in lodging the first information. Consequently, there is no scope for concoction of the story by anybody. Ex. P1 - first information in detail narrates the incident in question. It discloses the overt acts of accused Nos. 1 and 2 specifically. Though the complainant has stated about the presence of the other accused and their overt acts, we find that the allegations found against accused Nos. 3 to 8 are vague and cryptic. However, the complainant specifies the overt acts of accused Nos. 1 and 2. It is clearly mentioned in Ex. P1 - first information that accused No. 1 assaulted on the face of P.W. 1 with wood reaper whereas accused Nos. 2 had held the club and assaulted with the club.

The material as found in Ex. P1 - first information is fully supported by the evidence of PWs. 1 and 2 before the Court, both these witnesses have consistently deposed about the overt acts of accused Nos. 1 and 2. It is specified by them that accused No. 1 assaulted P.W. 1 with reaper which fell on the nose, consequent upon which, P.W. 1 sustained bleeding injury on his nose. He has also deposed about the assault on other parts of the body of P.W. 1 as well as P.W. 2. Though PWs. 1 and 2 was subjected to searching cross-examination, nothing worth is elicited by the defence so as to discard the evidence of PWs. 1 and 2.

We do not find any reason to disbelieve the versions of PWs. 1 and 2. Their presence on the spot cannot be disbelieved. They are the injured eye witnesses to the incident in question. They have taken treated at A.J. Hospital, Mangalore. Their versions before the Court fully supports the version as found in Ex. P1 -first information, which came to be lodged within 1 1/2 hours of the incident in question.

The versions of PWs. 1 and 2 are fully supported by the ocular testimony of eye witnesses PWs. 8 and 17. Both these witnesses have also deposed almost on par with the evidence of PWs. 1 and 2. They have also deposed that accused No. 1 assaulted with reaper on the nose of P.W. 1, consequent upon which, P.W. 1 sustained bleeding injury on the nose. They have also deposed about the assault made on PWs. 1 and 2 and other portions of the body of PWs. 1 and 2. Hence, it is clear that the versions of PWs. 1, 2, 8 and 17 are consistent, cogent and reliable. In our considered opinion, the Trial Court is not justified in disbelieving the versions of these eye witnesses merely on assumptions. The Trial Court has given much weightage to the minor variations on these eye witnesses. The minor variations are bound to occur in criminal cases, inasmuch as the evidence would be recorded after long lapse of time in the incident in question.

Be that as it may, looking to the consistent and cogent evidence of PWs. 1, 2, 8 and 17 and as the evidence is blemish less, their versions deserve to be accepted.

The ocular testimony of the aforementioned witnesses is fully supported by the evidence of the Doctor - P.W. 13, who treated the injured in A.J. Hospital, Mangalore. The wound certificates issued by the Doctor are at Exs. P10 and P11. The Doctor has deposed that he examined P.W. 1 at 8.40 p.m. on 23.6.2009 i.e. within 0-40 minutes of the incident in question and he found fracture of nasal bone on the left side of P.W. 1. According to him, the first injury sustained by P.W. 1 is grievous and the second injury sustained by him is simple in nature. So also he examined P.W. 2, who had sustained two injuries and both of them are simple in nature. Nothing worth is forthcoming from the evidence of P.W. 3, so as to discard his evidence. P.W. 3 is an independent Doctor and he is not biased either against the Prosecution or against the accused.

Be that as it may, we find that the medical evidence fully supports the ocular testimony in the matter on hand. Our consideration of the entire material would lead to an inevitable conclusion that accused Nos. 1 and 2 have assaulted P.W. 1 and P.W. 2. More particularly, accused No. 1 assaulted on the nose of P.W. 1 with reaper and P.W. 1 has sustained grievous injury on his nose. Hence, accused Nos. 1 and 2 are liable to be convicted for the offences under Sections 326 and 323 of IPC.

As already mentioned supra, the Trial Court has not at all assigned any valid reason for acquitting the accused Nos. 1 and 2. It has given more importance to the minor variations in the evidence of the eye witnesses. The appreciation of the evidence by the Trial Court is improper and incorrect. The view taken by the Trial Court while acquitting the accused is not at all a plausible view under the facts and circumstances of the case. In view of the same, the judgment and order of acquittal insofar as it relates to accused Nos. 1 and 2, passed by the Trial Court is liable to be set-aside.

However, we find from the records maintained by the Trial Court, the accused Nos. 1 and 2 have already undergone one month imprisonment during the course of investigation and trial. Having regard to the nature of injuries sustained by P.W. 1, we are of the opinion that the period already spent by the accused Nos. 1 and 2 in prison during the course of investigation and trial would be sufficient punishment that can be imposed in the matter on hand.

Accordingly, following order is made:

"1. The judgment and order of acquittal dated 29.8.2011 passed by the Trial Court in S.C. No. 125/2009 acquitting accused Nos. 1 and 2 stands set-aside.

Accused Nos. 1 and 2 are convicted for the offences punishable under Sections 326 and 323 read with Section 34 of IPC.

The judgment and order of acquittal dated 29.8.2011 passed by the Trial Court in S.C. No. 125/2009 acquitting accused Nos. 3 to 8 stands confirmed.

The convicted accused Nos. 1 and 2 are sentenced to undergo imprisonment for the period which is already undergone by them during the course of investigation and trial. Hence, they need not be imprisoned once again for the crime in question. However, accused Nos. 1 and 2 are imposed with fine of Rs. 10,000/- (Rupees Ten Thousand only) each. In default of payment of fine, accused Nos. 1 and 2 shall undergo further imprisonment for a period of one month.

The fine shall be paid by accused Nos. 1 and 2 within six weeks from this day. In case of recovery of fine, the entire amount of Rs. 20,000/- (Rupees Twenty Thousand Only) shall be paid in favour of P.W. 1 namely, K. Chethan Kumar as compensation under Section 357 of Cr.P.C."

Appeal is allowed-in-part to the said extent.

We place on record the valuable assistance rendered by Sri Sampangiramaiah, learned Amicus Curiae. The registry is directed to pay Rs. 10,000/- (Rupees Ten Thousand Only) to the learned Amicus Curiae, as honorarium.