State of Karnataka vs Subbanna Shivananjappa alias Kariyappa

Mohan M. Shantanagoudar, J.—The judgment & order of acquittal dated 31-8-2012 passed by the Sessions Court, Mysore in S.C. No. 96/2011 acquitting all the accused of the offences punishable under Sections 307, 323 and 324 r/w Section 34 of IPC is called in question in this appeal by the State.

Case of the prosecution in brief is that Accused Nos. 1 to 3 are brothers inter se; Accused No. 4 is relative of Accused Nos. 1 to 3; P.W. 1 is the son of P.W. 12; P.W. 2 is brother of P.W. 12; PWs. 1, 2 and 12 are the joint family members and they are living under the same roof; the house of P.Ws. 1, 2 and 12 is abutting the house of Accused Nos. 1 to 3; there are cases and counter-cases against each other on one or the other grounds and hence they are ill-disposed towards each other.

On the date of the incident i.e., on 16-8-2010 at 4.45 p.m. when P.W. 2 was grazing his cattle on the tankbund, all the four accused along with 3-4 other persons came to the spot and started quarrelling with P.W. 2; at that point of time, P.W. 1 who was working in the nearby field came and intervened in the quarrel; all the accused abused P.Ws. 1 and 2 in filthy language and questioned them as to why they had lodged the complaint against them earlier; so saying Accused No. 1 assaulted on the head of the injured P.W. 2 with chopper; Mallanna (Accused No. 3) assaulted injured P.W. 2 with iron rod; Accused Nos. 2 and 4 assaulted and fisted P.W. 2; Due to the assault on the head of P.W. 2, he sustained bleeding injuries and fell on the ground; the accused as well as 3-4 other persons ran away from the spot; immediately P.Ws. 1, 3 and 4 together shifted the injured P.W. 2 to JSS Hospital, Mysore for treatment.

On getting information over phone from some third person of Pillahalli village, P.W. 13 -.Sub-Inspector attached to Mysore South Police Station went to JSS Hospital, Mysore and took the written complaint lodged by P.W. 1 as per Ex.PI at about 8.00 p.m. on 16-8-2010 and came back to Police Station and registered Crime No. 262/2010 at 9.30 p.m. on the very day. The very Sub-Inspector completed the investigation and laid the charge-sheet.

In order to prove its case, the prosecution in all examined 14 witnesses and got marked 20 Exhibits and 4 Material Objects. On behalf of the defence, 15 Exhibits were got marked. The trial Court, on evaluation of the material on record and after hearing the learned advocates on both the sides, acquit the accused by giving benefit of doubt in favour of the accused.

As mention supra, the complaint-Ex.Pl reveals that not only four accused who have faced trial before the trial Court assaulted the victim (P.W. 2), but also other 3-4 unknown persons assaulted the victim (P.W. 2). Immediately after the incident, the victim was shifted to JSS Hospital, Mysore and he was admitted there. P.W. 12, the brother of P.W. 2 had come to the hospital in the meanwhile and he took lead in admitting P.W. 2 to the hospital. At the time of admission of P.W. 2 to the hospital, the doctor has recorded the history as provide before him to the effect that four rowdies (goondas) employed by Subbanna and Siddalinga assaulted P.W. 2, which means that the earliest version on behalf of the injured was that four unknown rowdies assaulted P.W.2 since they were engaged to do so by said Subbanna and Siddalinga. It is also relevant to note here itself that name of Accused No. 1 is Subbanna and there is no material to show as to who another person viz., Siddalinga was. He is not the accused in this case. It is also not forthcoming as to who are other three persons who were involved in the incident in question.

Learned Government Advocate taking us through the material on record submits that the Court below has not considered the evidence of P.Ws. 1, 2 and 4 in the proper perspective; the evidence of these eye-witnesses is fully supported by the evidence of P.Ws. 5 and 12; since P.W. 2 was the injured eye-witness, his presence on the scene cannot be doubted and consequently his version also cannot be doubted; minor discrepancies, if any in the case of the prosecution needs to be eschewed from consideration keeping in mind the major evidence which is consistent, cogent and reliable. Lastly, he submits that the trial Court has not appreciated the evidence on record in the proper perspective. Sri Nataraju, learned advocate appearing on behalf of the accused argued in support of judgment of the Court below.

Before proceeding further, it would be relevant to note the versions of each of the witnesses in brief.

P.Ws. 1, 2, 3 and 4 are the eye-witnesses to the incident in question and among them, P.W. 3 has turned hostile to the case of the prosecution. P.W. 1 is the complainant. P.W. 2 is the injured eye-witness. Ex.P4 is the Wound Certificate and Ex. P5 is the case sheet maintained by the JSS Hospital, Mysore. Both of them nowhere disclose that P.W. 2 was unconscious and was not in a position to talk after the incident during the treatment.

P.W. 5 is the doctor in JSS Hospital. He issued the wound certificate as per Ex.P4. He has recorded the history of the incident in Ex.P4 to the effect that four rowdies employed by Subbanna and Siddalinga assaulted on the head of the victim (P.W. 2) with an iron rod of 4 feet length at 4 p.m. on 16-8-2010.

P.W. 6 is the owner of the car in which the injured was shifted to hospital.

P.W. 7 is the witness for the scene of offence mahazar-Ex.P2.

P.W. 8 is a witness for seizure mahazar � Ex.P9. He has turned hostile to the case of the prosecution.

P.W. 9 is a witness for Ex.P9. He has also turned hostile to the case of the prosecution.

P.Ws. 10 and 11 are the constables. P.W. 10 carried the articles to Forensic Science Laboratory for examination. P.W. 11 arrested Accused No. 1 on 28-11-2010.

P.W. 12 is father of P.W. 1 and brother of P.W. 2. He shifted P.W. 2 and admitted him to the hospital. He is not the eye-witness to the incident.

P.W. 13 is the Police Sub-Inspector. He received the complaint lodged by P.W. 1 as per Ex.Pl and registered the crime and issued the first information to the jurisdictional Magistrate which reached the Magistrate at 10.30 a.m. on 17-8-2010.

P.W. 14 is another doctor of JSS Hospital. He is Radiologist and his report is at Ex.P18. The victim was subjected to C.T. scan and the reports are at Ex.P19 and Ex.P20, which disclose that the injured P.W. 2 has suffered fracture of parietal bone.

The case of the prosecution mainly rests on the evidence of P.Ws. 1, 2 and 4 who are the eye-witnesses to the incident. Among them, P.W. 1 has lodged the complaint as per Ex.Pl at 8 p.m. on 16-8-2010 immediately after admission of the victim to the hospital. According to P.W. 1, he accompanied the injured (P.W. 2) along with P.Ws. 3 and 4 and admitted the injured to the hospital. Even P.W. 12 also came to the hospital and he was present at the time of admission of the injured to the hospital, which means P.Ws. 1, 3, 4 and 12 were very much present along with the injured P.W. 2 at the time of admission of the injured to the hospital. P.W. 1 has deposed that he reached the hospital at 6.30 or 7 p.m. on 16-8-2010; he has prepared the complaint and presented the same before the Sub-Inspector of Police (P.W. 13) at 8 p.m. According to P.W. 1, P.W. 2 has lost consciousness and as the doctor told him that they would intimate the police by sending medico legal intimation, he did not go to the Police Station to inform about the incident. P.W. 1 has further deposed that he got written Ex.Pl from someone in the hospital. He did not know the person who has written the complaint - Ex.Pl. P.W.l is not sure as to who wrote the complaint as per Ex.P. 1. However the material on record disclosed that the person who wrote Ex.Pl seems to have told P.W. 1 that he has written the complaint as per his (P.W. 1) say. Nowhere in his evidence, P.W. 1 has deposed that he has read the contents of the complaint before submitting the same to the police.

The doctor - P.W. 5 has deposed that P.W. 2 was conscious throughout his stay in the JSS Hospital and he never lost his consciousness during his stay in the hospital. However P.W. 13, the Sub-Inspector of Police curiously has deposed that since P.W. 2 was unconscious till 9-9-2010, his statement could not be recorded earlier and the same was recorded only on 9-9-2010. Thus, the statement of the victim was recorded after 25 days of the incident by the police. Absolutely no reasons are forthcoming as to why there is delay in recording the statement of the victim. Since P.W. 2 is fatal witness in this case, his statement ought to have been recorded earlier, more particularly when he was conscious and was in a position to talk. The doctor - P.W. 5 has clearly admitted that the victim - P.W. 2 was in a position to talk and was talking at the time of admission and subsequently also.

At the first look, the evidence of P.Ws. 1, 2 and 4 appears to be consistent and cogent. All of them have deposed consistently (parrot like) with regard to the complicity of Accused No. 1 in assaulting on the head of P.W. 2. However their evidence is not believable so far as the assault by Accused Nos. 2, 3 and 4 is concerned. Number of variations are found in the evidence of these witnesses insofar as complicity of other accused is concerned. Further, P.W. 1 has admitted in paragraph 15 of his deposition that even before they could reach the place of incident where the galata was going on, the accused has run away, which means all the eye-witnesses have come to the spot only after the incident. Number of other variations are pointed out by the defence in the cross-examination of these witnesses. But the major admission of P.W. 1 is that he and other so-called eye-witnesses came to the spot only after the accused leaving the scene. Therefore P.Ws. 1, 3 and 4 cannot be said to be eye-witnesses. In view of the same, the evidence of P.W. 2 assumes great importance and hence the same is assessed meticulously by this Court. The evidence of P.W. 2 has to be evaluated keeping in mind the other attending circumstances and the material on record.

As mention supra, P.W. 2 was conscious and was talking at the time of his admission to the hospital. He was admitted to the hospital by P.Ws, 1, 3,4 and 12. Immediately after admission to the hospital and even before lodging the complaint as per Ex.Pl, all the so-called eye-witnesses - P.Ws. 1, 2 and 4 and P.W. 12 have given hostory before the doctor that four rowdy elements engaged by Subbanna and Siddalinga assaulted on the head of P.W. 2 with iron rod of four feet length at 4 p.m. on 16-8-2010 while he (the injured) was grazing his cattle in Pillahalli village, which means the history as given before the doctor in detail provide all the particulars required for registration of the crime. This being the first information ought to have been sent by the doctor to the police station along with Medico Legal Case Intimation. But in the case on hand, the said material is absent and there is no reason as to why the prosecution has suppressed such MLC intimation sent by the doctor to the Police Station. It is clearly admitted by P.W. 5 that he sent intimation to the K.R. Police as it was a Medico Legal Case. Thus MLC intimation sent by P.W. 5 appears to have been deliberately suppressed by the Investigation Officer.

Though the history as provide before the doctor-P.W. 5 reveals that the victim was assaulted with the iron rod measuring 4 feet, M.O. 2 seized and produced before the Court which is allegedly used by the accused measures 1/2 feet to 2 feet as is clear from the deposition of P.W. 5 (paragraph 10). If really the history as provide before the doctor-P.W. 5 is incorrect, P.W. 2 would not have kept quite. It is clearly admitted by P.W. 2 that he was able to talk when the doctor examined him. It is also admitted by P.W. 5 that P.W. 2 was conscious and was responding to oral commands when he was brought to the hospital. While history was given before the doctor, P.W. 2 did not interact. It is also relevant to note that P.W. 2 did not undergo any surgery and he was in talking condition. In this view of the matter, the defence is justified in arguing that neither P.W. 1 nor P.Ws. 3 and 4 are the eye-witnesses to the incident and the incident has taken place when only P.W. 2 was in the land wherein he was grazing the cattle. The admission of P.W. 1 clearly reveals that he and other eye-witnesses came to the spot after the accused left the scene.

There is no hurdle for the police to record the statement of P.W. 2 when the complaint was given by P.W. 1 inasmuch as during relevant time P.W. 2 was conscious, oriented and was talking. His statement was not recorded, may be deliberately also. By that time, the history was already given by either injured or P.W. 1 or P.W. 12 as the case may be, before the doctor to the effect that four rowdy sheeters assaulted P.W. 2. Even the iron rod employed for assaulting P.W. 2 was totally different from the iron rod which is seized in the case. At the most, it can be said that two persons viz., Subbanna and Siddalinga might have engaged four rowdy sheeters. But there is no evidence to that effect on record. It is further relevant to note that P.W. 13, the Inspector of Police has clearly admitted in his deposition that the contents of Ex.Pl (complaint) and the statements of the witnesses recorded during the course of investigation do disclose that four others were also involved in the crime. But the Investigating Officer has failed to investigate the whereabouts of four assailants who have really participated in the crime. In this view of the matter, the defence is justified in arguing that since the Investigating Officer has failed in his duty to identify the real four assailants, has ventured to implicate the four respondents herein as the accused. Since it is not proved beyond reasonable doubt by the prosecution that the respondents herein have participated in the crime, the trial Court is justified in giving the benefit of doubt in their favour. It seems the Investigating Officer has delayed registration of the crime and sending the first information report to the jurisdictional Magistrate only with a view to implicate the innocent persons. Though the complaint is stated to have been registered at 9.30 p.m. on 16-8-2010, the first information report reached the jurisdictional Magistrate at 10.30 a.m. on 17-8-2010. No explanation is forthcoming from the prosecution as to why such inordinate delay has occurred in sending the first information report to the jurisdictional Magistrate, particularly when the hospital, Police Station as well as the Court are within the vicinity of 1-2 kilometers in the Mysore city.

Added to it, as mention supra, though P.W. 2 was able to talk and though he was conscious, his statement was not recorded till 9-9-2010 though the incident has taken place on 16-8-2010. Since P.W.2 was the prime witness in the case, his statement ought to have been recorded at the earliest. Curiously, the Sub-Inspector has deposed falsely before the Court that he could not record the statement of P.W. 2 till 9-9-2010 since P.W. 2 was taking treatment in JSS Hospital and only after his discharge from the hospital on 9-9-2010, he recorded his statement. As a matter of fact, records disclose that P.W. 2 was discharged from the hospital on 25-8-2010 itself. Moreover there was no hurdle for the Police Officer to record the statement of P.W. 2 even prior to 25-8-2010 in the hospital itself inasmuch as the doctors have not debarred him from recording the statement and there is no material to show that the Police Officer had made efforts to record the statement of the injured at the earliest. The Investigating Officer has taken his own time to record the statement of the injured as well as sending the first information report to the jurisdictional Magistrate only with a view to fill up the gaps and to implicate the innocent persons. We are of the opinion that the origin and genesis of the case of the prosecution is suppressed and the real assailants are not brought before the Court and arrayed as accused. In view of the same, the trial Court is justified in acquitting the accused. We find that the reasons assigned and the conclusion arrived at by the trial Court were just and proper. The view taken by the trial Court while acquitting the accused is one of the possible views under the facts and circumstances of the case. Hence no interference is called for.

Appeal fails and the same stands dismissed.