State of Karnataka vs Munishamappa and Others

Mohan Shantanagoudar, J.—This appeal is filed by the State against the judgment and order of acquittal passed by II Addl. Sessions Court, Kolar in Spl. C.C. No. 165/2004. By the impugned judgment and order, the accused are acquitted of the offences punishable under Sections 143, 147, 148, 323, 324, 326 r/w Section 149 of IPC and under Sections 3(1) (x) & (xi) of SC/ST (POA) Act, 1989,

The case of the prosecution in brief is that, there was dispute between the accused/respondents and the complainant in respect of Sy. NO. 34/2 measuring 1 acre 27 guntas, The civil matter was decided in favour of the complainant Thereafter, the land was surveyed. According to the complainant, he is in possession of the aforementioned land. On 30.7.2004, PWs-1 to 5 went to the aforementioned land to spill the manure and while coming back at 5.30 p.m., accused came in a group near the land of Dalali Venkataswamy armed with crowbar, clubs and picked up quarrel with PWs-1 to 5 and abused them in filthy language taking the name of their caste. Accused No. 2 assaulted PW-2 with a crowbar on his mouth on account of which, he lost his teeth partially and sustained grievous injury. Accused No. 2 assaulted PW-2 with a club on his right ear, Accused No. 3 assaulted PW-1 on his left thigh and accused No. 4 assaulted PW-3 with a club on her head. Accused No. 3 assaulted PW-4 with a club on her right ear. Accused. No. 5 assaulted PW-4 all over her body with hands. The incident lasted upto one hour on that day, The incident is seen by PW-6 an independent eye-witness. On the very day the injured-PWs-2, 3 and 4 took treatment in Government hospital by PW-8 and PW-10 Doctors. PW-8 Doctor treated PWs-2 and 3 and issued wound certificate as per Exs-P9 and P10 respectively, PW-10 is another Doctor who treated PW-4 and issued wound certificate as per Ex-P11. However, complaint came to be lodged on 2.8.2004 by PW-1 before the Sub-Inspector of Police, Kolar Rural police station. Said complaint was registered in Cr.No. 232/2004 in Kolar Rural police station lor the offences punishable under Sections 143, 147, 148, 323, 324, 326 r/w Section 34 of IPC and under Sections 3 (i) (x) & (xi) of SC/ST (POA) Act, 1989, The police after investigation laid the charge sheet.

In order to prove its case, the prosecution in all examined 10 witnesses and got marked 11 exhibits and seven material objects. On hearing and on considering the material on record, the Trial Court acquitted the accused on the ground that the prosecution has not proved its case beyond reasonable doubt.

PWs-1 to 5 are stated to be injured witnesses. They were coming from the land after spilling the manure and were attacked by the accused who were armed with clubs and crowbars etc., PW-6 is the independent eye-witness, who has turned hostile, PW-7 is the person who shifted the injured to the hospital, he is treated as hostile, PWs-8 and 10 are the Doctors who treated PWs-2, 3 and 4 and issued wound certificates as per Ex-P9, Ex-P10 and Ex-P.11, PW-9 is the PSI who registered the complaint and completed the investigation.

Though PW-1 & PW-5 are said to have been injured persons, they are not treated by the Doctors and no wound certificates are forthcoming in respect of them. If really, PWs-1 and 5 had sustained injury in the incident, they would not have failed to take treatment with the Doctor. It is relevant to note that PWs-2, 3 and 4 were immediately shifted to hospital and have taken treatment with the Doctors and in such an event, PWs-1 and 5 also would have accompanied PWs-2 to 4 for getting themselves treated, However, according to learned Addl. State Public Prosecutor, PWs-2 to 4 can be treated as eye witnesses.

Out of the three injured witnesses'' i.e., PW-2, 3 and 4, witnesses No. 3 and 4 have sustained simple injuries. PW-3 had sustained one abrasion and whereas, PW-4 has sustained tenderness over the left shoulder. However, PW-2 has lost lower incisor and canine partially. In that contest, Doctor PW-8 has opined that PW-2 has sustained grievous injury.

However, the Trial Court is justified in concluding that the prosecution has not put forth the true facts before the Court. As aforementioned, the incident has occurred on 30.7.2004 at 5.30 p.m. Immediately thereafter, the injured have taken treatment in the hospital at about 6.45 p.m. at Kolar, The jurisdictional police station is also situated in Kolar, There is no reason as to why neither the injured nor the so-called witnesses failed to inform about the incident to the police. Atleast the Doctors should have intimated the same to the police, particularly when, the Doctors themselves have recorded the wound certificate about the history as assault in the wound certificate.

PW-2 has admitted in his evidence that he was in the hospital for two days after the incident. On the next day of the incident, the police came to the hospital and enquired PW-2 about the incident in question. Accordingly, PW-2 mentioned about the incident to the police and the same was reduced to writing by the police, After getting the statement of PW-2 recorded, the police took the signature of PW-2 also, Such first version given by PW-2 before the police on the next day of the incident is not forthcoming before the Court and the same is suppressed by police. However, the proceedings on hand have started based on Ex-P1 complaint said to have been lodged by PW-1 on 2.8.2004 at 1.45 p.m. We are at a loss to understand as to what has happened to the first information given by PW-2 before the police on 1,8,2004, The police should have been fair enough to place such important material before the Court. The aforementioned omission on the part of the Investigating Officer has made the Trial Court to suspect the case of the prosecution in toto. We do not have any reason to find any error in the order of the Trial Court in that regard.

The only reason assigned for the delay in filing the complaint is that there was Panchayat in the village and the villagers tried to settle the matter amicably, But none of the witnesses including so-called Panchayatdhars are examined before the Trial Court in support of the said contention. In the absence of any supporting material, the version of the complainant that the complaint was lodged belatedly because of settlement talks, cannot be accepted.

The Doctor PW-8 who treated PWs-2 & 3 has admitted in the cross-examination that the age of the injuries ia not mentioned in the wound certificates. According to the defence, the loss of incisor by PW-2 is not a new one. The defence version is supported by the evidence of the Doctor who has deposed that he has not mentioned the age of the injured in the wound certificate Except one injury i.e., partial loss of lower incisor and canine, all other injuries said to have been sustained by PWs-2 to 4 are simple in nature.

It is by now well settled by catena of decisions that this Court would not normally interfere with the order of acquittal passed by the Trial Court even two views are possible under the facts and circumstances of the case and if the Trial Court has taken one of such possible views while passing the judgment and order of acquittal. We find that the view taken by the Trial Court is a possible view under the facts and circumstances of the case Since the prosecution has suppressed the first version of the complainant, which was lodged one day after the incident, the defence is justified in arguing that the prosecution has not come out with the true facts.

In view of the above, no interference is called for in the impugned judgment and order passed by the Trial Court.

Accordingly, Appeal fails and the same stands dismissed.