AI Structured Summary
Not yet generated for this judgment
Judgment
Crl.A 1716/2006 is filed by the State against judgment of acquittal of accused No.7 to 10 in C.C.No.62/2005 for offences punishable under Sections 143, 147, 148, 447, 323, 324, 326, 506 r/w 149 IPC.
Crl.RP 2335/2006 is filed by the victim against judgment of acquittal of accused No. 1 to 6 in Crl.A 28/2006 (arising out of C.C.No.62/2005) for offences punishable under Sections 143, 147, 148, 447, 323, 324, 326, 506 r/w 149 IPC.
The State has not filed any appeal against acquittal of accused No. 1 to 6.
We have heard Sri.Bhanu Prakash, learned counsel for petitioner in Crl.RP 2335/2006 and Sri.N.S.Sampangiramaiah, learned Government Header for State in Crl.A 1716/2006 and Sri.AM.Radhakrishna, learned counsel for accused No. 1 to 10 (respondents in Crl.RP 2335/2006 and Crl.A1716/2006)
Sri.N.S.Sampangiramaiah, learned Government Pleader for State would submit that the learned trial judge was not justified in acquitting accused No.7 to 10 in view of consistent evidence given by injured witnesses that accused No.7 to 10 had threw chilly powder on the injured prosecution witnesses namely PW''s. 1 to 4, 7 and 8.
Sri.A.M.Radhakrishna, learned counsel for accused No.7 to 10 would submit that there is no consistent evidence either regarding presence or participation of accused No.7 to 10; the direct evidence of injured witnesses that accused No. 1 to 6 threw chilly powder does not find support from the medical evidence; therefore, the learned trial judge was justified in acquitting accused No.7 to 10.
In the first information given by PW.1 (injured witness) there is omnibus statement that all the accused (accused No. 1 to 10) had thrown chilly powder and assaulted the injured witness namely PW''s.1 to 4, 7 and 8.
PW. 1 has deposed; that accused No.7 to 10 threw chilly powder on their faces. PW.1 has not deposed that the chilly powder thrown by accused No.7 to 10 fell on faces of injured witnesses. Contrary to this, PW.2 has deposed: that accused No.7 to 10 threw chilly powder on the face of PW.1. PW.3-Rama Lakshmamma has deposed; that "all the accused threw chilly powder on our eyes". The evidence of PW.3 is vague. PW.4-Chikka Ramaiah has deposed; that "accused No.7 to 10 threw chilly powder on our eyes".
PW.7-Subbarayappa has deposed; that accused No.7 to 10 threw chilly powder on PW.7. PW.7 has not deposed that accused No.7 to 10 had thrown chilly powder on his eyes or on the eyes of other witnesses. PW.8-Shivagangamma has deposed: that "the remaining accused threw chilly powder.
Thus, we find that the evidence of these witnesses is not consistent and credible. Above all the medical evidence given by PW''s.5, 9 and 13 does not indicate that these witnesses namely PW''s. 1 to 4, 7 and 8 had inflammatory eyes or irritated eyes.
The learned trial judge taking into consideration, this discrepant evidence of injured witnesses and lack of medical evidence has disbelieved the case of prosecution as it relates to accused No.7 to 10 and acquitted them.
On reappreciation of evidence, we do not find any reasons to interfere with the findings recorded by the learned trial judge. Therefore, we do not find any merit in Crl.A 1716/2006 filed by the State.
PW.1 (the injured witness) has filed Crl.RP 2335/2006 against judgment of acquittal of accused No.1 to 6 passed by the I-appellate court. The revision filed by PW. 1 (victim) against judgment of acquittal of accused No. 1 to 6 before the I-appellate court has to be considered bearing in mind the limitations contained u/s 401 Cr.P.C.
It will be useful to refer to the judgments regarding scope and power of this court to interfere with judgment of acquittal in a revision filed by a private party.
The learned counsel for Revision petitioner has relied on following judgments:-
1) Pakalapati Narayana Gajapathi Raju and Others Vs. Bonapalli Peda Appadu and Another,
2) Ayodhya Dube and Others Vs. Ram Sumer Singh,
3) K. Chinnaswamy Reddy Vs. State of Andhra Pradesh,
The learned counsel appearing for respondents has relied on the following judgments:
1) 2008 Cri.L.J. 1627 (in the case of Johar & Others -vs-Mangal Prasad & Another)
2) 2003 SCC (Cri) 1205 (in the case of Thankappan Nadar and Others -vs- Gopala Krishnan and Another)
3) AIR 2002 SCW 3315 (in the case of Bindeshwari Prasad alias B.P.Singh and others -vs- State of Bihar (now Jharkhand) and another)
In the case on hand, the learned trial judge on appreciation of evidence held accused No. 1 to 6 guilty of offences punishable under Sections 143, 147, 148, 447, 323, 324, 326, 506 r/w 149 IPC. The learned trial judge of the I-appellate court has reversed the judgment of conviction and acquitted accused No.1 to 6 of the aforestated offences. We have gone through the decisions cited at the Bar.
In a decision reported in 2003 SCC (Cri) 1205 (in the case of Thankappan Nadar and Others -vs- Gopala Krishnan and Another) the Supreme Court has held:
In a revision filed by a private party, High Court cannot reappreciate the entire evidence and remit the matter to the trial court for deciding the case. The law does not permit the court exercising revisional jurisdiction to reappreciate the evidence.
In a decision reported in AIR 2002 SCW 3315 (in the case of Bindeshwari Prasad alias B.P.Singh and others -vs- State of Bihar (now Jharkhand) and another) the Supreme Court has held:
In the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High court to interfere in exercise of revisional jurisdiction at the instance of the informant. The judgment of the trial court was not perverse. No defect of procedure has been pointed out. There was also no improper acceptance or rejection of evidence nor was there any defect of procedure or illegality in the conduct of the trial vitiating the trial itself.
In a decision reported in 2008 Cri.L.J. 1627 (in the case of Johar & Others -vs- Mongol Prasad & Another) the Supreme Court has held:
Though revision against judgment of acquittal is not barred, jurisdiction is severely restricted.
The Supreme Court has held that: High Court was not justified in entering into merits of the matter and analysing the depositions of all the witnesses examined on behalf of the prosecution.
In a decision reported in Ayodhya Dube and Others Vs. Ram Sumer Singh, the Supreme Court has held:
When the Sessions Judge acquitted the accused by ignoring the probative value of FIR and reliable testimony of eyewitnesses and without considering material evidence on record, the judgment was full of inconsistencies and consisted of faulty reasoning, the order of the High Court in revision directing retrial by setting aside acquittal would be justified.
In this judgment, there is reference to the earlier judgment of Supreme Court reported in K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, wherein, the Supreme Court has held:
It is true that It is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal; but this jurisdiction should in our opinion be exercised by the High Court: only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point: of law and consequently there has been a flagrant miscarriage of justice. Sub-section(4) of S. 439 forbids a High Court from converting a finding of acquittal into one of conviction and that makes it all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of ordering retrial, when it cannot itself directly convert a finding of acquittal into a finding of conviction. This places limitations on the power of the High Court to set aside a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised. It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. We may however indicate some eases of this kind, which would in our opinion justify the High Court in interfering with a finding of acquittal in revision. These cases may be: where the trial Court has no jurisdiction to try the case but has still acquitted the accused, or where the trial Court has strongly shut out evidence which the prosecution wished to produce, or where the appeal Court has wrongly held evidence which was admitted by the trial Court to be inadmissible, or where material evidence has been overlooked either by the trial Court or by the appeal Court, or where the acquittal is based on a compounding of the offence, which is invalid under the law. These and other cases of similar nature can properly be held to be cases of exceptional nature, where the High Court can justifiably interfere with an order of acquittal; and in such a case it is obvious that it cannot be said that the High Court was doing indirectly what it could not do directly in view of the provisions of S. 439(4). We have therefore to see whether the order of the High Court setting aside the order of acquittal in this case can be upheld on these principles.
We have considered the judgments of the courts below, bearing in mind the principles of law enunciated in the aforestated decisions.
PW''s.1, 3 and 4 had suffered fractures (grievous injuries). The learned judge of the I-appellate court has discarded the evidence of injured witnesses on the ground that there was inordinate delay in lodging the first information. The incident had taken place at about 10.00 a.m., and the first information was lodge at 4.00 p.m. The distance between the place of incident and the jurisdictional police station is about 5 kilometers.
The learned judge of I-appellate court while considering the delay factor has overlooked the fact that as many as four injured witnesses had suffered fractures and they had been rendered immobile. The learned judge of the I-appellate court has not considered the condition of injured witnesses including PW1 who lodged the first information.
In a decision reported in Amar Singh Vs. Balwinder Singh and Others, the Supreme Court has held:
There is no hard and fast rule that any delay in lodging the FIR would automatically render the prosecution case doubtful. It necessarily depends upon facts and circumstances of each case whether there has been any such delay in lodging the FIR which may cast doubt about the veracity of the prosecution case and for this a host of circumstances like the condition of the first informant, the nature of injuries sustained, the number of victims, the efforts made to provide medical aid to them, the distance of the hospital and the police station, etc. have to be taken into consideration. There is no mathematical formula by which an inference may be drawn either way merely on account of delay in lodging of the FIR.
In a decision reported in Tara Singh and others Vs. The State of Punjab, the Supreme Court has held:
The delay in giving the first information by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are, one cannot expect these villagers to rush to the police station immediately after the occurrence. The human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity, it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report.
in the case on hand. PW.1 first informant had suffered fracture of right radius, besides PW''s.3 and 4 had also suffered fractures. According to the case of prosecution, the incident of assault took place in a field, which was at a distance of 5 kilometers from the jurisdictional police station.
The learned trial judge has held that the contents of first information are contrary to evidence given by PW''s. 1 to 4 and 7. The learned judge of I-appellate court has considered this as one of the grounds to discard the evidence of PW1 to PW4 and PW7 (injured witnesses).
In a decision reported in Sohal Lal @ Sohan Singh and Others Vs. State of Punjab, the Supreme Court has held:
The first information report is Che only report about the information as to the commission of offence. This is not substantive evidence as the police has yet to investigate the offence.
In a decision reported in 1993 Crl.LJ 220 (in the case of Benudhar Routra Vs. Raula alias Maheshwar Sahu and another), it is held:
6......The rejection of FIR would not detract the testimony of eyewitnesses which will have to be assessed on its own merits. (See Somappa Vamanappa Madar and Shankarappa Ravanappa Kaddi Vs. State of Mysore, )
The law is well settled that the first: information can be used to contradict the maker thereof or to corroborate his evidence.
Therefore, the learned judge of the I-appellate court has ignored the settled principles of law regarding appreciation of evidence of injured witnesses vis-�-vis contents of first information.
The learned judge of the I-appellate court by accepting the hypothetical answers given by PW.5 Dr.Venkatesh Babu has held that the injured witnesses viz., PW''s. 1 to 4 and PW7 had suffered injuries including fractures when the bullockcart in which they were travelling turned upside down.
The learned judge of I-appellate court while recording such a finding has ignored the settled principles of law that the evidence given by the eyewitnesses and injured witnesses is evidence of fact and the evidence of medical officer is the evidence of opinion. The learned judge of the I-appellate court while recording such a finding has not taken into consideration the number of injuries suffered by each of the injured and has failed to notice that PW.5-Dr.Venkatesh Babu was not cross-examined with reference to each of the injuries suffered by PW''s. 1 to 4, 5 and 7. Above all, there was not even a suggestion to PW''s. 1 to 4, 5 and 7 that they were travelling in a bullockcart and the bullockcart had turned upside down. This was necessary to lay factual foundation to profound the defence theory that PW''s.1 to 4, 5 and 7 had suffered injuries in a bullockcart accident.
The learned judge of the I-appellate court has disbelieved the evidence of injured witnesses in proof of injuries suffered by them, as PW.9, medical officer of Primary Health Centre, Kodigenahalli had not made entries in the accident register. The learned judge of the I-appellate court while recording such a finding has ignored evidence of PW.9-Dr.Byappareddy that he had not treated the injured and he had only given first aid treatment and advised that injured be taken to a major hospital as four of the injured persons had suffered fractures and there was no facility in the Primary Health Centre, Kodigenahalli for treating fractures. The learned trial judge has found fault with the eyewitness account of injured witnesses as the investigating officer who had visited the place of incident had not noticed the existence of fence regarding which there was dispute between the accused and injured witnesses. The learned judge of the I-appellate court while recording such a finding has ignored the settled principles of law that spot inspection report prepared by the investigating officer cannot be read as perse evidence and it can only be treated as former statement falling u/s 157 of the Evidence Act.
The learned judge of I-appellate court has failed to bear in mind the settled principles of law relating to appreciation of evidence of injured eyewitnesses. The learned judge of the I-appellate court ought to have borne in mind that the injured eyewitnesses would be least disposed to implicate the accused leaving aside the real culprits. The learned trial judge has discarded the evidence of injured eyewitnesses on the ground that they have given detailed version of the incident. The learned trial judge has failed to notice that evidence of witnesses will not be free from embellishments and exaggerations. The learned judge of I-appellate court has ignored the settled principles of law that court has to sift grain from choff. Therefore, we are of the considered opinion that the learned judge of I-appellate court has recorded findings based on no evidence and has also ignored settled principles of law relating to appreciation of evidence. The learned judge of I-appellate court in preference to evidence of injured witnesses has accepted hypothetical evidence given by medical witnesses to hold that possibility of injured witnesses having suffered injuries in a bullockcart accident cannot be ruled out. The learned judge of I-appellate court while considering the delay in lodging first information has not borne in mind settled principles of law. The learned trial judge has failed to understand evidentiary value of first information. The learned trial judge has ignored settled principles of law that the first information cannot be used to discard evidence of eye/injured witnesses.
In view of the above glaring discrepancies which have resulted in miscarriage of justice, we are of the considered opinion that the matter needs to be reconsidered by the I-appellate court. As the matter is under remand, detailed analysis of evidence is likely to cause prejudice to either parties when the matter is reheard by the learned judge of I-appellate court.
Therefore, we pass the following:
ORDER
1) Crl.A.No. 1716/2006 filed by the State is dismissed. Acquittal of accused 7 to 10 is confirmed.
2) Crl.R.P.No. 2335/2006 is accepted.
3) The impugned judgment made in Crl.A 1716/2006 is set aside. Acquittal of accused 1 to 6 is set aside.
4) Crl.A. 1716/2006 is restored and remanded to the I-appellate court for reconsideration.
5) The learned judge of the I-appellate court shall rehear Crl.A. 1716/2006 and decide the appeal on merits in the light of legal principles stated herein and in accordance with law.
6) The learned judge of the I-appellate court shall appreciate evidence independently without being influenced by factual observations made in this order.
7) The appeal shall be heard and decided on merits within a period of six months from the date of receipt of copy of this judgment.
8) The office is directed to send back the records along with a copy of this judgment to the I-appellate court forthwith.