The State and Others vs Chandrakant and Others

Anand Byrareddy, J.—Criminal Appeal No. 2893/2011 is filed by the State in the following background:

It is stated that one Anand, son of Venkatraman Naik was a practising advocate at Kumta, Uttara Kannada District. It is stated that the accused namely, Chandrakant, son of Devanna Nayak and Raju, son of Ramachandra Nayak were inimically disposed towards the complainant, as they were suspecting him to be a Police informant, who was informing the Police about their illegal activities, such as vending of illicit liquor and other such activities.

It transpires that on 25.9.2001, at about 2.45p.m., while the complainant was returning to his village after attending to court wok, the accused had followed him on a motor cycle with an intention to commit his murder. On seeing the accused following him and by their demeanor, he was able to guess that they were about to murder him and therefore, he had rushed into a cool drinks shop of one Dayanand Ganesh Pandit to protect himself from the accused. The accused however, had followed him into the shop and had attacked him while abusing him in foul language. It is stated that accused No. 1 had attacked the complainant with a hacksaw, or a ''Garagasa'' as it is called colloquially, on his head, cheek, eye-brow, nose and hands and caused grievous injuries.

It is stated that when PW.5 namely, Ganesh, son of Venku Patagar had tried to intervene, he was pushed to the ground and he had suffered an injury as well; The accused are said to have damaged several soda bottles, tube lights, glass jars and other soft drink bottles in the exercise of attacking the complainant and PW.5. After having done so, the accused are said to have fled the scene.

On a complaint, which was initiated from the hospital, where the complainant was said to have been admitted for the injuries, prosecution was initiated for offences punishable under Sections 341 , 324 , 307 , 427 and 504 of the Indian penal Code, 1860 (Hereinafter referred to as the ''IPC, for brevity). The complainant had undergone treatment in the Government Hospital at Kumta and a case was registered in Crime No. 86/2001. After further investigation, a charge sheet was lodged against the accused for the offences aforesaid on 8.3.2002.

The Magistrate having taken cognizance of the offences punishable as aforesaid, the case was committed to the District and Sessions Court, Karwar for trial as on 7.10.2002. Charges having been framed, the accused had pleaded not guilty and claimed to be tried. The prosecution had examined PWs. 1 to 18 and got marked several exhibits and material objects. The court below, after recording the statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 (Hereinafter referred to as the ''Cr.PC, for brevity) and after hearing the arguments on both sides, had framed the following points for consideration:

"1. Whether the prosecution has proved guilt of the accused beyond all reasonable doubt that both the accused on 25.9.2001 at about 2.45 p.m. by entering in the cold-drink shop of Cw.6 at Bargi wrongfully restrained the complainant with common intention of assaulting him and thereby, committed the offence punishable under Section 341 read with Section 34 of IPC?

Whether the prosecution has further proved guilt of the accused beyond all reasonable doubt that on the same day, time and place accused No. 1 assaulted the complainant with a hacksaw on his head, cheek, eyebrow and both hands and caused grievous hurt to him and thereby, committed the offence punishable under section 326 read with Section 34 of the IPC?

Whether the prosecution has further proved the guilt of the accused beyond all reasonable doubt that on the same day, time and place accused No. 2 pushed Ganesh Venku Patgar (C.W-9) with common intention of causing simple hurt to him and thereby committed the offence punishable under section 324 read with Section 34 of the IPC?

Whether the prosecution has further proved the guilt of the accused beyond all reasonable doubt that on the same day, time and place the accused damaged the soda bottles, tube lights, glass jars and also other soft drink bottles in the shop belonging to CW.6/the shop owner and caused loss to him and thereby, committed the offence punishable under section 427 read with 34 of the IPC?

Whether the prosecution has further proved guilt of the accused beyond all reasonable doubt that on the same day, time and place the first accused with common intention caused grievous hurt to the complainant with hacksaw having knowledge that if he by that act had caused his death he would have been guilty of his murder and thereby, committed the offence punishable under section 307 read with Section 34 of the IPC?"

The court below has answered the above points in the negative and acquitted the accused. It is that which is sought to be challenged by the prosecution.

Insofar as Criminal Appeal No. 2671/2011 is concerned, this appeal is filed by the complainant being aggrieved by the acquittal of the accused. Since the prosecution has thought it fit to file an appeal, the present appeal is redundant and superfluous. The appellant at best could assist the prosecution in conducting the case and in the present appeal as well. Therefore, the learned counsel for the appellant has sought to file written arguments to bolster the case of the prosecution. The said written arguments are in some detail, which we will refer in due course. However, the appeal itself is redundant in view of the State already having questioned the acquittal of the accused.

In so far as the appeal in Crl.A. No. 2511/2012 is concerned, is filed by accused No. 1 Chandrakant in a case in SC No. 68/2006, the judgment in which is the subject matter of the present appeal as well the appeal in Crl.A. 2671/2011.

It is the case of the appellant that on 25.9.2001, at about 2.45p.m., when he was having tea in the very cold drink shop where the victim in SC 64/2004 is said to have been attacked, the accused, namely, Anand had come there and picked up a quarrel with him and had assaulted the appellant causing hurt and the weapon used was a hacksaw or garagasa. The appellant was injured on his neck and both hands and therefore, it is alleged that the said accused had committed offences punishable under Sections 324 and 504 of the IPC. The appellant was undergoing treatment in a Government Hospital in Hiregutti and he had lodged a complaint which was registered as crime No. 87/2001 and the First Information Report was also forwarded to the court. After conducing investigation, the investigating officer had submitted a ''B'' Report to the court on 19.12.2001. The appellant having raised an objection to the ''B'' Report, the court had directed him to adduce evidence in respect of the complaint. He had filed his protest petition and the Magistrate, after recording the statement of the complainant and his witnesses, had found that there were sufficient grounds to proceed against the accused for the offences alleged and had thereafter issued summons to the accused to register a criminal case in CC 6/2003. After recording evidence before charge, the learned Magistrate had recorded the plea of the accused of the offence alleged and since there was a counter case as already mentioned in SC 64/2002, pertaining to the same incident and an application had been moved, to call for the entire records in CC No. 6/2003 on the file of the Additional JMFC, Kumta. The case having transferred to the sessions court was numbered as case No. SC 68/2006. The evidence having been tendered in both the cases which were tried one after another,

The Court below, after having framed charges and after recording the statement of the accused under Section 313 of the Cr.PC, had framed the following points:--

"1. Whether the prosecution has proved guilt of the accused beyond all reasonable doubt that the accused on 25.9.2001 at about 2.45 p.m. by entering in the cold-drink shop of one Dayanand Pandit in Bargi assaulted the complainant with the hacksaw on his neck and both hands and caused grievous hurt to him and thereby, committed the offence punishable under section 324 of IPC?

Whether the prosecution has further proved the guilt of the accused beyond all reasonable doubt that on the same day, time and place the accused abused the complainant in vulgar language and intentionally insulted him, thereby gave provocation to him intending that such provocation could cause him to break public peace and thereby, committed the offence punishable under section 504 of IPC?"

The court below had held the above points in the negative and consequently acquitted the accused. It is that which is under challenge in the present appeal.

Heard the learned Additional State Public Prosecutor insofar as the appeal in Crl.A.2893/2011 and having considered the written arguments on behalf of the complainant submitted by the counsel appearing for the appellant in Crl.A.2671/2011, it is seen that the trial court in addressing the case in SC 64/2002, has reasoned as follows.

That there were four eye witnesses namely, PWs. 2 to 5, to the incident and it is found by the court below that except PW.5, all the other witnesses had turned hostile. PW.2 had stated in his evidence that when the incident took place, he was deep inside the shop and he was preparing tea and as such, he was not in a position to witness the actual incident. However, he has admitted at the time of drawing panchnama, Exhibit P.2, that he had signed on the panchnama and he has identified MO.4 as the object that was lying near the shop. He has not identified the pieces of bottles in MO.5. Therefore, he was treated as a hostile witness. He had then stated that he had not stated as per Exhibit P.3 in the case before the Police and he did not know the contents of the panchnama drawn on that day and he did not know who had assaulted the complainant.

Similarly, Pw.4 has, in his evidence, stated that it was true that the complainant had sustained injuries. He had stated that on inquiry, he came to know that somebody from Hiregutti village had assaulted the complainant. He was not sure as to who had assaulted the complainant and he had also declared that he had not stated before the Police in line with Exhibit P.5 about the incident and he had not identified the motor cycle said to have been used by the accused, which was marked as MO.7. He had denied the suggestion that the accused had assaulted the complainant.

However, PW.5 has, in his evidence, stated that he was in the tea shop of PW.2 and the complainant had come on motor cycle to the shop of PW.2. Accused No. 1 followed him into the shop and a quarrel had broken up between them. Accused No. 1 had assaulted the complainant with MO.1 on his head and all over his body due to which he sustained injuries.

PW.5 has stated that when he tried to intervene accused No. 1 threw a stone at him, which hit on his fore-head. It was the further evidence of PW.5 that thereafter, the complainant''s brother had shifted the complainant to the Government Hospital, Kumta and that the witness had also suffered an injury and he had been treated at the Government Hospital. He has also stated that in the incident, the accused No. 1 had also sustained some injuries.

The court after having discussed the evidence of other witnesses, which were of a formal nature, has concluded that apart from the evidence of the injured complainant and the eyewitnesses examined, it cannot be very clearly gathered that the prosecution was able to prove the allegations levelled against the accused. Though the names of PW.2 and PW.3 were stated in the First Information Report, they have retracted and have not supported the case of the prosecution.

PW.4 was also treated as a hostile witness. Therefore, the court has found that there was no independent corroboration of the evidence of the complainant and since PW.2, PW.3 to Pw.5 were the prime witnesses on which the prosecution relied in order to prove the alleged offences, their evidence was not in support of the prosecution. Insofar as the evidence of PW.5 is concerned, who is purportedly stood by his statement made police authorities, the court below has found that though accused No. 1 had assaulted the complainant with weapon MO.1, he has stated that he did not know as to why he was assaulted and the stone allegedly used in causing hurt to said witness had not been produced as a material object. It was not even the case of the prosecution that accused No. 1 had assaulted the witness with a stone on the other hand, it was alleged that accused No. 2 had pushed the witness and on account of the fall, he had sustained an injury on his forehead.

PW.17, who has tendered evidence as to the witness being treated at the Primary Health Centre, has stated that, according to the history recorded in the case sheet, there was no allegation of any assault caused and there was only abrasion over the forehead, which was a simple injury. In this manner, the trial court has found that there was certainly inconsistent in the evidence of the said witness and his evidence could not, therefore, be accepted. It would not enable the prosecution to contend that it corroborates the evidence of the complainant.

Insofar as the motive alleged of the accused having attacked the complainant on the ground that they suspected him of informing the Police of illegal activities, such as illicit liquor vending, cock fight, illicit trading in shell fish, was not supported by any reliable evidence and the complainant was a practising advocate on the criminal side, who was well-versed with the criminal law and he could have certainly supported the case of the prosecution with material evidence in this regard and therefore, there was no such material placed. On the other hand, it was found that the complainant himself was involved in several criminal cases, which were pending as on the date of the trial and details of the same are also referred to by the trial court and obviously, it was difficult to ascertain as to who was the assailant and who was the oppressor. It is in this fashion that the court below has thought it fit to acquit the accused as the prosecution had failed to establish its case beyond all reasonable doubt.

On a careful examination of the law and on consideration of the contentions put forth by the learned State Public Prosecutor as well as the written submissions that are submitted on behalf of the complainant, the reasoning of the trial court cannot be faulted and we are of the opinion that there is no warrant for interference. The appeal in Crl.A.2893/2011 stands dismissed.

Insofar as the appeal in Crl.A.2511/2011 is concerned, it is noticed that the trial court on assessment of the evidence by the prosecution, the trial court has found that the prosecution had failed to prove the guilt of the accused beyond reasonable doubt.

That PW.1 and PW.2 were the accused in SC 64/2002 and the present accused was the complainant in that case. Therefore, the court has opined that they are interested in protecting their skin and as such, the complaint was filed after the criminal case was lodged by the accused and no eye witnesses were examined by the prosecution, except PW.4, who had turned hostile and PW.3 was the brother of the complainant and to hold the accused guilty of offences punishable under sections 324 and 504 of the IPC, the prosecution had not produced clinching evidence. The evidence of PW.1 and PW.2, the court below felt, did not inspire confidence of the court so as to rely on their version. It is in that summary manner that the trial court has dismissed the case and acquitted the accused. We find no error committed by the court below. The appeal stands dismissed.

Incidentally, it is pointed out by the learned counsel for the respondent in Crl.A.2511/2012, that the appeal itself is not maintainable in the following circumstances:

The learned counsel for the respondent states that the appeal arises out of the very case in SC 68/2006 filed against the complainant by the accused in SC 64/2003. The complaint in any case was filed on 26.9.2001 against the complainant as a counter blast, after gap of 20 hours from the time of the alleged incident on 25.9.2001 at 2.45 p.m. The appeal filed by the complainant, it is pointed out, is not maintainable as per the judgment of the Supreme Court in the case of National Comission of Women Vs. State of Delhi and Another, , wherein with reference to Section 372 of the Cr.PC, it is pointed out that the complainant has filed the appeal invoking proviso to Section 372 of the Cr.PC, which is inserted by Act 5 of 2009 dated 31.12.2009. The Supreme Court has held that the said proviso would not have any retrospective effect and the same was applicable only to those cases in which, incident took place after 31.12.2009. In the present case on hand, the incident in question took place on 25.9.2001 much prior to the insertion of the said provision to Section 372 Cr.PC. and on that ground, the appeal would have to be dismissed as not maintainable.

However, the learned counsel for the appellant concedes this legal position and would submit that the appeal may be treated as a revision petition in terms of Section 401 of the Cr.PC. However, the learned Counsel for the respondent would point out that when there are specific provisions providing for filing an appeal against acquittal and conviction the question of invoking the power would not arise and therefore to contend that it would be possible for the complainant to file such an appeal is misconceived. Hence, it would not be open for the appeal to be converted into a revision petition as the law does not contemplate such procedure and the State not having chosen to file an appeal against acquittal of the appellant, would not enable the appellant to prosecute this appeal at all.

However, insofar as the respondent himself is concerned, as the appeal though not maintainable, could yet be permitted to support the case of the prosecution, which has chosen to file the appeal. It is in this endeavour that he has filed his written submissions that having regard to the legal position, the appeal could also be dismissed as not maintainable, though on merits, it cannot be sustained.

Accordingly, the appeals in Crl.A.2893/2011 and Crl.A. No. 2511/2011 are dismissed. The appeal in Crl.A. No. 2671/2011 is disposed of as redundant.