State vs T. Manjunath and Others

Mohan M. Shantana Goudar, J.—The judgment and order of acquittal dated 27.1.2011 passed by the 13th Fast Track Court, Bangalore City, passed in SC. No. 708/2010, is appealed against by the State.

The accused were charged for the offences punishable under Sections 341, 307 r/w. Section 34 of IPC. Accused No. 1 was also charged for the offence punishable under Section 114 of IPC.

Case of the prosecution in brief is that accused No. 1 Manjunatha @ Manja is a friend of the complainant-Purushotham (P.W.1); complainant was engaged in the work of laying the tiles by Dr. Rohit, who was constructing a building at Malleswaram, Bangalore; complainant had introduced accused No. 1 to Dr. Rohit; accused No. 1 was entrusted with the duty of carpentry work by Dr. Rohit, since he was introduced by the complainant to Dr. Rohit. However, after some time, accused No. 1 did not proceed with the carpentry work in the said building; he left with the job; however his tools remained in the building of Dr. Rohit; after some time, accused No. 1 tried to secure his tools from the said building, but the owner of the building i.e., Dr. Rohit did not permit him to take back his tools on the ground that he had not given accounts in respect glasses to be fixed to the doors and windows of the building of Dr. Rohit; in that regard, accused No. 1 was unhappy and he told the complainant (P.W.1) that he should get back his tools; he had even threatened P.W.1 with dire consequences in case if the tools are not returned to him; however, P.W.1 assured that he will get the tools returned from Dr. Rohit after some time; in the meanwhile, i.e., on 3.2.2009 at about 8.15 a.m. when P.W.1 was proceeding from his house to the workplace on the motorcycle along with his co-workers, three persons waylaid the motorcycle of P.W.1 and assaulted P.W.1 with choppers, consequent upon which P.W.1 sustained three injuries, out of them one is grievous in nature; after hearing hue and cry, P.W.3, wife of P.W.1 came to the spot and shifted the complainant to Chord Road Hospital, wherein he took treatment for seven days as an inpatient; in the meanwhile, PSI-P.W.11 attached to Basaveswaranagar Police Station came to the hospital at 10.45 a.m. on 3.1.2008 and recorded the statement of P.W.1 as per Ex. P1, based on which Crime No. 38/2009 is registered; the FIR was sent to jurisdictional Magistrate as per Ex. P3 which reached the jurisdictional Court at 2.00 p.m; P.W.9, the Inspector of Police, Basaveswaranagara Police Station completed the investigation and laid the charge sheet.

In order to prove its case, the prosecution in all has examined 11 witnesses and got marked 10 Exhibits and one Material Object. On behalf of the defence, 4 Exhibits are marked. On evaluation of the material on record, the trial Court acquitted the accused.

Sri Nageshwarappa, learned Government Pleader taking us through the material on record and the judgment of the Court below submitted that the trial Court is not justified in acquitting the accused; the evidence of P.W.1 brings home guilt as against accused No. 1; the appreciation of the evidence by the Court below is improper and incorrect and consequently, the same has resulted in injustice. He further submits that the Court below has given major importance to minor variations in the evidence of the prosecution witnesses; there is no reason as to why P.W.1 should depose falsely before the Court if he is really not injured.

We have perused the material on record meticulously in its entirety.

P.W.1 is the injured complainant. He lodged the complaint as per Ex. P1, based on which crime came to be registered. He has deposed about the incident before the Court.

P.W.2 is the witness for offence panchanama at Ex. P2.

P.W.3 is the wife of the complainant. She came to the spot immediately after the incident and shifted P.W.1 to the hospital.

PWs.4 and 7 though are independent witnesses, have turned hostile.

P.W.5 is the Police Constable, who carried FIR to the jurisdictional Court.

P.W.6 is the doctor who treated the injured and issued the wound certificate at Ex. P5. According to the doctor, P.W.1 sustained one grievous injury and two simple injuries.

P.W.8 is another doctor who examined P.W.1 at the time of recording the complaint-first information as per Ex. P1. He has certified that P.W.1 was fit to make statement during the relevant time.

P.W.9 is the Investigating Officer who completed the investigation and laid the charge sheet.

P.W.10 is the Police Constable, who arrested the accused.

P.W.11 is the PSI of Basaveswaranagar Police Station. He received the intimation of medico-legal case and visited the hospital and also recorded the statement of P.W.1 as per Ex. P1, based on which crime is registered.

Case of the prosecution mainly rests on the evidence of P.W.1-injured eye witness. He has lodged complaint as per Ex. P1. On meticulous perusal of the complaint as well as the evidence of P.W.1, we find that there is a great variance between two.

The complaint was lodged in the hospital by P.W.1 immediately after the incident. According to the doctor, P.W.1 was fit to make statement as per Ex. P1. P.W.1 has specified in Ex. P1 that he got the work to accused No. 1; accused No. 1 left the job and subsequently tools were not returned by Dr. Rohit, since accused No. 1 had not given accounts of the glasses to be fixed to the doors and windows of the building of Dr. Rohit; in that regard, accused No. 1 was pressurizing P.W.1 to get back his tools; since the tools were not returned to accused No. 1, he allegedly sent three unknown persons to assault P.W.1 and accordingly those three persons came to the spot and assaulted P.W.1 with choppers and fled away.

Thus, it is clear from Ex. P1 that the complainant-P.W.1 did not know about three assailants who actually came to the spot. Even according to the complainant, accused No. 1 did not come to the scene of offence at all. Except the motive, nothing is alleged against accused No. 1 by P.W.1 in the complaint.

Further statement of P.W.1 is recorded by the police during the course of investigation on 10.4.2009. In the said subsequent statement, P.W.1 has stated that three unknown persons waylaid his motorcycle and did not allow him to proceed further. It is specifically stated in the further statement recorded during course of investigation that he did not know about the names of three assailants who actually assaulted him on the spot. The aforementioned statements are marked as Ex. D1 and Ex. D2 respectively during the course of evidence of P.W.1. Thus, Ex. D1 and D2 clearly disclose that even on 10.4.2009, P.W.1 did not know the names of three assailants who actually came to the spot and assaulted him.

However, during the course of evidence before the Court, P.W.1 gave entirely a different story. Before the Court P.W.1 has deposed that he got the carpentry work to both the accused; accused No. 2 is none other than the brother of accused No. 1; accused No. 2 came with two other assailants to the spot at the instance of accused No. 1; accused No. 2 instigated the other two assailants and consequently, the other two assailants assaulted P.W.1 with choppers. He specified in his evidence before the Court that accused No. 2 was working in Dr. Rohith''s building as carpenter with his co-workers and that therefore he knew accused No. 2 very well. If really P.W.1 knew accused No. 2 very well, he would not have missed to state his name in the complaint or in the subsequent statement recorded during the course of investigation, had accused No. 2 really been to the spot and instigated other two assailants to assault P.W.1. As aforementioned, even after two months of the incident (i.e., at the time of recording further statement on 10.4.2009), P.W.1 did not know the names of three assailants. Thus, the statement made by P.W.1 before the Court that accused No. 2 was one of the three assailants on the spot, appears to be make believe story. If accused No. 2 was known to P.W.1 very well, he would have stated his name either in the complaint at Ex. P1 or in the subsequent statement recorded after two months of the incident. More over, the work was not entrusted by P.W.1 or Dr. Rohit to accused No. 2; on the other hand, it was entrusted by Dr. Rohit to accused No. 1 only. According to P.W.1, it was accused No. 2 who instigated the other two accused; he did not have chopper in his hand. Thus the role of accused No. 2 as deposed before the Court by P.W.1 was relating to instigation, but that is not the version of complainant-P.W.1 in the complaint. In the cross-examination, it is specifically admitted by P.W.1 that he knew accused Nos. 1 and 2 very well since 6 to 7 years and that they are living in the same area. All these factors would clearly reveal that the prosecution has tried to make out a case as against accused No. 2 for the first time before the Court. We find that the version of P.W.1 is highly exaggerated and it gives complete go by to the version as found in the complaint. In view of the same, in our considered opinion, the trial Court is justified in disbelieving the version of P.W.1.

Though three persons were the assailants, who came to the spot of offence including accused No. 2 (who allegedly instigated), the two other assailants are not charge-sheeted. This fact clearly proves that those two persons have not actually assaulted P.W.1. In other words, the case as sought to be put forth, is completely improved version or the prosecution has suppressed the real version and has come out with a created and concocted story.

Except P.W.1 no other eye witness is examined before the Court. Though it is the case of the prosecution that P.W.1 and his co-workers were proceeding on the motorcycle when the motorcycle was waylaid, none of the co-workers of P.W.1 are examined. P.W.3 is the wife of the deceased. She has come to the spot after the incident. She is not the eye witness to the incident in question. However, the police showed accused to her in the Police Station.

It is no doubt true that the version of doctors makes it clear that P.W.1 sustained one grievous injury and two simple injuries. Since the material on record does not disclose the names of real assailants, the so-called accused on record, whose names are found in the cause title cannot be convicted. Admittedly, accused No. 1 was not in picture at all. According to the case of the prosecution, he did not come to the spot. However, the incident has allegedly taken place at his instance. The prosecution case as made out is highly doubtful (as we observed supra). Having regard to the totality of the facts and circumstances of the case, we do not find any ground to interfere with the judgment and order of acquittal passed by the trial Court.

Hence, appeal fails and accordingly, the same stands dismissed.