State vs Vishwanatha S. Anchan

Kumar Rajaratnam, J.—The State being aggrieved by the judgment of the Trial Court dated 7-11-1997 in S.C. No. 40 of 1994 in acquitting the accused respondent for an offence punishable u/s 307 of the IPC, has preferred this appeal against acquittal.

The prosecution case in brief is that there were some differences between the family of P.W. 1 to 5 and 7 on the one hand and the accused and his father on the other hand. On 29-8-1993 at about 4.30 p.m. P.W. 2 was passing in front of the house of the accused and the accused is alleged to have abused P.W. 2 in Tulu language. Thereafter, P.W. 2 went to his house and reported to his mother about the incident. Thereafter, P.W. 2 after about 20 minutes, left his house to go to the shop of P.W. 6 near the junction of Moodabidri-Shirthady Road. After some time, P.W, 7 noticed that the accused was chasing P.W. 2 with an axe in his hand, On seeing the accused, P.W. 2 took to his heels and when P.W. 2 was near the ''Daivadakallu'' situated on Moodabidri-Shirthady Road, the accused assaulted P.W. 2 with the axe on the back of his head. On account of the blow sustained by him, P.W. 2 fell down at the spot. Thereafter, the accused assaulted P.W. 2 on his nose, chin and on his legs. The said assault was according to the prosecution, witnessed by P.Ws. 3, 4, 5, 6 and 8 apart from P.W. 7. Looking at the condition of P.W. 2, P.W. 7 brought him to Alva Health Centre, Moodabidri in an autorickshaw. The police arrived at Alva Health Centre and recorded the complaint of P.W. 1 as per Exhibit P. 1. P.W. 2 was removed to K.M.C. Hospital in a car for better treatment.

It is the case of the prosecution that after P.W, 2 was admitted in the Alva Health Centre, P.W. 12-Police Sub-Inspector was informed about the same on phone. He immediately came to Alva Health Centre and thereafter recorded the complaint of P.W. 1 as per Exhibit P. 1. In the meantime, P.W. 2 had been shifted to K.M.C. Hospital, Manipal. P.W. 12 thereafter returned to the police station along with the complaint, Ex. P. 1. On reaching the police station, P.W. 12, the P.S.I, on the basis of the complaint, Ex. P. 1 registered a case in Crime No. 91 of 1993 for an offence u/s 307 of the IPC against the accused and issued FIR.

P.W. 13 is the Doctor at Manipal who examined P.W. 2 on 29-8-1993 at 8.30 p.m. P.W. 13 states that P.W. 2 (the patient) was referred to him from Alva Nursing Home from Mudabidri. On examination, he found the following injuries.-

"1. There was a transverse laceration measuring 11/2" having the depth of the bone situated over the left thigh.

There was a laceration over the right thigh measuring 1" x 1".

There was a laceration over the nasolabial fold measuring 1" and it was bone deep.

There was a laceration over the chin measuring 1" with bone deep.

There was a laceration over the left side of the forehead measuring 1" and underneath bones had been exposed.

There was a laceration over the right parietal region measuring 1" and it was bone deep.

There was a laceration over the vault on the head measuring 1/2" x 1/2".

There was a laceration over occipital region measuring 1/2" x 1/2".

There was a fracture of the body of the right mandible.

There was fracture of the right maxilla.

There was a fracture of right zygomatic complex".

The wound certificate given by the Doctor, P.W. 13 is marked as Exhibit P. 8. He also states that the axe, M.O. 3 can cause these injuries.

When a specific question was asked in the cross-examination that M.O. 3 could only cause incise wounds, the Doctor has denied the suggestion and stated that it is possible that M.O. 3 can cause lacerated wounds.

The complaint was admittedly given by P.W. 1 who is not an eye-witness. Both in his evidence as well as in the complaint P.W. 1 states that he came to know that his nephew, P.W. 2 was attacked by an axe by Vishwanatha S. Anchan (the accused) and that P.W. 2 sustained grievous injuries. He came to know about this incident from one Naveen who is P.W. 7. P.W. 1 further states that the said Naveen (P.W. 7) informed him that he brought the injured (P.W. 2) to Alva Health Centre for medical treatment. He was the injured. He was not talking properly. He had sustained grievous injuries over his face, chin and both the thighs. He also states that there was enmity between P.W. 2 and the accused. He further states that this incident was witnessed by the neighbours. He states that the place of occurrence was near the house of the accused in Moodukonaje Village. P.W. 1 further stated that the injured, P.W. 2 was shifted from Alva Health Centre to K.M.C. Hospital, Manipal. The occurrence is alleged to have taken place around 6.30 p.m. The complaint was given by P.W. 1 at Moodabidri Alva Health Centre to the police between 7.00 to 7.30 p.m. on the same day, namely, on 28-8-1993.

P.W. 12 is the Sub-Inspector of Police at the Police Station on the relevant date. He states in evidence that at about 6.15 p.m., he received a telephone message from Alva Health Centre to the effect that P.W. 2 had been brought to the nursing home with injuries. He proceeded to the Alva Health Centre and by the time he could reach the nursing home P.W. 2 had already been shifted to KMC Hospital, Manipal for better treatment. Thereafter, P.W. 12 recorded the statement of P.W. 1 at the nursing home. He returned to the police station in view of Exhibit P. 1 and registered a case in Crime No. 91 of 1993 for an offence u/s 307 of the IPC against the accused. Although the occurrence took place on 29-8-1993, P.W. 2 was examined by the police on 1-9-1993.

Much was made of by the fact that P.W. 2 (injured witness) was examined after a lapse of nearly three days. However, what was forgotten was the fact that P.W. 2 was in KMC Hospital and was undergoing treatment. He had suffered grievous injuries. The injuries suffered by P.W. 2 have been extracted in the earlier part of this judgment. P.W. 13, the Doctor has stated that P.W. 2 has received as many as eleven injuries. There were three fractures and there was also an injury on the occipital region. There was no cross-examination to the effect that P.W. 2 was well enough to give the statement to the police earlier. From the nature of the injuries found on P.W. 2, it is clear that P.W. 2 could not have been in a position to give a statement earlier.

A perusal of the original complaint indicates that the FIR reached the Magistrate where the name of the accused found a place at 10.55 a.m. on the very next day of the occurrence i.e., on 30-8-1993. Therefore, the identity of the accused was never in doubt.

In the background of the evidence of P.W. 1, it is necessary to examine the evidence of P.W. 2, the injured witness. The learned Trial Judge at para 14 of the judgment understands that the evidence of the injured witness stands on a higher footing than that of the other witnesses. He also understands that the injured witness will not exculpate the real accused and implicate another accused falsely. Having stated that, the learned Trial Court chooses not to believe P.W. 2 who is an injured witness merely because other eye-witnesses could not be believed. The Trial Court committed the cardinal error in disbelieving the injured witness merely on the ground that the other eye-witnesses could not be believed. Even assuming for a moment the other eye-witnesses could not be believed, that could never be a ground for disbelieving the injured witness who clearly implicates the accused. The learned Trial Court proceeds as if it is a murder case where the identity of the accused is in doubt. The evidence of P.W. 2 who is an injured witness stares in the face of the Court and it has been brushed aside by the Trial Court on erroneous grounds.

We will deal with the reason given by the Trial Court in discarding the evidence of the other eye-witnesses.

P.W. 5 is an eye-witness. She is the aunt of P.W. 2, the injured witness. The Trial Court disbelieved P.W. 5 on- the ground that P.W. 5 claims that she saw the accused assaulting P.W. 2 only once. While on record, there were more than one injury on P.W. 2. The second ground for rejecting P.W. 5''s evidence was that P.W. 8 stated that it was not possible for a person to see the occurrence from the place where P.W. 5 was witnessing the occurrence on the ground that plants and bushes had grown on either side of the road. Erroneously relying on the evidence of P.W. 8, the Trial Court rejects the evidence of P.W. 5 who is an eye-witness.

Equally curious is the reason for rejecting the evidence of P.W. 6. P.W. 6 runs a bunk shop near the place of occurrence. P.W. 6 is a handicapped person. He states that he saw the accused chasing P.W. 2 with an axe opposite the bunk shop. P.W. 6 also states that he saw the accused assaulting P.W. 2 on the head. P.W. 7 brought P.W. 2 with injuries to his bunk shop. Relying on the evidence of P.W. 7, the Trial Court concludes that P.W. 6 is not an eye-witness. Why P.W. 6 should not be believed has not been stated by the Trial Court; after all P.W. 6 is an independent witness who is a handicapped person. There was no need for P.W. 6 to implicate the accused falsely. The reasoning of the Trial Court for disbelieving P.W. 6 at paragraph 18 is unsustainable in law.

The exercise of the learned Judge in rejecting each of the eye-witnesses on one reason or the other in a case where the injured eye-witness has clearly spoken about the injuries sustained by him as a result of the assault by the accused is neither warranted nor persuasive in the facts and circumstances of the present case. The learned Judge has forgotten for a moment that the injured witness is before the Court and spoken about the injuries sustained by him as a result of the assault by the accused. He has also spoken about the motive. P.W. 2, the injured witness has also spoken that he was shifted from Alva Nursing Home to KMC Hospital, Manipal as he had suffered serious injuries. The name of the accused finds a place in the complaint given by P.W. 7 and the complaint reaches the Jurisdictional Magistrate expeditiously. In the circumstances, it is not possible to reject the testimony of eye-witnesses. Just one example will elicit the error committed by the Trial Court. P.W. 8 is an independent eye-witness. At paragraph 20, the Trial Court rejects the evidence of P.W. 8 on the following grounds:

"20. The next witness is P.W. 8, Ananda Suvarna who is an independent witness examined in the case. According to him, on the date of occurrence, he was in his arrack shop. He saw the accused assaulting P.W. 2 by coming out of his shop. He has admitted in cross-examination that since he saw the accused going chasing P.W. 2 to the spot of the occurrence, he says that the accused assaulted P.W. 2. It has come on record as already pointed out while discussing the testimonies of the other witnesses that from the place where P.W. 8 was standing, the spot of occurrence cannot also be seen. It has also come on record that P.W. 8 knows the family members of P.W. 2 and his family members are his customers. Taking this into consideration, in my view, P.W. 8 also could not have seen the accused assaulting P.W, 2 near the spot of occurrence".

We think that the Trial Court ought to have weighed the evidence of P.W. 2 carefully since he is an injured eye-witness and there was no likelihood of P.W. 2 implicating the accused falsely in the light of the grave injuries suffered by P.W. 2 at the hands of the accused.

Mr. R.B. Deshpande, the learned Senior Counsel for the respondent-accused submitted that all the injuries sustained by the accused were lacerations and fractures and therefore the axe, M.O. 3 could not have caused these injuries. The Doctor, P.W. 13 has clearly stated that the axe, M.O. 3 could have caused these injuries. Nothing has been elicited in the cross-examination to show that M.O. 3 could not have caused these injuries on P.W. 2. The lacerations could have been caused if the reverse of the axe was used. In fact, injury No. 1 reads as follows.---

"Transverse laceration measuring 11/2 inches having the depth of the bone situated over the left thigh".

Since the Doctor has clearly stated that M.O. 3 could have caused injuries sustained by P.W. 2, it has to be accepted that M.O. 3 could have caused the said injuries. We accordingly reject the submissions of the learned Counsel. We are not persuaded to accept the submission of Mr. Deshpande, the learned Counsel for the accused since there is no cross-examination on this point and the examination-in-chief clearly indicates that M.O. 3 could have caused these injuries.

We are of the view that evidence of an injured witness should not be discarded lightly unless for a compelling reason. We do not find any compelling reason for discarding the evidence of P.W. 2.

We are conscious of the fact that we are dealing with an appeal against acquittal and that if two views are possible the benefit of doubt must go to the accused. Equally there is no immunity to an erroneous order on scrutiny. Supreme Court in a number of pronouncements has used expressions such as "substantial and compelling reasons" and "strong reasons" before an appeal against acquittal can be allowed. At this stage, we may refer to the judgment of the Supreme Court in State of U.P. Vs. Krishna Gopal and Another, , which has dealt with the vexed questions of the power of the Appellate Court in an appeal against acquittal. Mr. M.N. Venkatachaliah, J. (as he then was), speaking for the Bench, held at para 13 as follows.-

"13. ... 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 amounts to ''proof is an exercise particular to each case. ....................................................... 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 must be free from an over-emotional response. Doubts must 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 reason able doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. 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".''

(emphasis supplied)

The evidence of P.W. 2 coupled with the evidence of eye-witnesses P.Ws. 3 to 6 and 8 clinches the issue beyond reasonable doubt that P.W, 2 sustained grievous injuries as a result of the assault by the accused with an axe, M.O. 3. We accordingly find the accused guilty of an offence u/s 326 of the IPC.

We have heard the Counsel for the accused on the question of sentence. It was submitted by Mr. R.B. Deshpande, learned Counsel for the accused that the occurrence took place in the year 1993 and the accused shall be dealt with leniently.

In the facts and circumstances of the case, we convict the accused u/s 326 of the IPC and sentence him to undergo RI for a period of two years and also sentence him to pay a fine of Rs. 15,000/-. In default, the accused shall undergo SI for six months. The fine amount shall be deposited with the Trial Court within four weeks from the date of receipt of this judgment On such deposit, the Trial Court shall disburse that amount to P.W. 2 as compensation.

The accused shall surrender and serve the remaining period of sentence. He shall be entitled to set-off u/s 428 of the Cr. P.C.

The appeal is partly allowed and the judgment of the Trial Court dated 7-11-1997 passed in S.C. No. 40 of 1994 is set aside.