K.S. Mudagal JUDGMENT
K.S. Mudagal, J.
1. Aggrieved by the Judgment and Order dated 30.07.2012 passed by the learned Fast Track Court Judge, Chikmagalur, in Crl.A. No. 244/2010, the State has preferred this appeal.
2. By the impugned Judgment and Order, the Fast Track Court set aside the order of conviction and sentence passed by the learned Civil Judge and JMFC, N.R. Pura in C.C. No. 193/2010 on 22/30.11.2010.
3. The respondent herein is the accused in C.C. No. 193/2010. For the purpose of convenience, he will be referred to hereafter as Accused'.
4. The brief facts of the case are as follows:
N.R. Pura Police charge-sheeted the accused in Crime No. 12/2010 for the offences punishable under Sections 324, 326, 504 and 506 of I.P.C. on the basis of the complaint of P.W. 1-Savithri as at Ex. P1. The gist of the said complaint is as follows:
That on 30.01.2010 at 8.00 p.m. when herself [P.W. 1], her husband Suresha [P.W. 2] and their farm servant Kum. Srimathi [P.W. 3] were proceeding near the house of the accused in their village, for the purpose of dropping P.W. 3 to her house, the accused due to some previous ill-will, came from the hind side and assaulted her husband with the club on the head, back and left hand and caused bleeding injuries. When her husband raised alarm and she went to his rescue, the accused assaulted her also on her right hand and right leg with the club and caused bleeding injuries. Further, the accused abused them in foul language and criminally intimidated them, then dropped the club and went away. Since it was night and there was no conveyance to go to hospital, they went to hospital in the morning and after taking treatment, came to the Police Station and filed the complaint.
5. On the basis of the aforesaid complaint, the learned Magistrate took cognizance of commission of the offences and after hearing the parties, framed the charges for the offences punishable under Sections 326, 324, 504 and 506(2) of I.P.C. The trial Court recorded the plea of the accused. He denied the charges and claimed trial. Therefore, the trial was conducted.
6. In support of the case of the prosecution, P.Ws. 1 to 8 were examined, Exs. P1 to 5 and M.O.1 were marked. The Trial Court examined the accused with reference to the incriminating materials. The accused did not adduce any oral evidence, but on his behalf Ex. D1 was marked by way of confrontation to P.W. 2.
7. The trial Court after hearing the parties, convicted the accused for the offences punishable under Sections 324, 326, 504 and 506 of I.P.C. and sentenced him to imprisonment for various terms and fine for all those offences, the maximum one being the imprisonment of two years and fine of Rs. 3,000-00 for the offence under Section 326 of I.P.C.
8. The trial Court based the conviction on the following grounds:
(1) The charges are proved by the evidence of the injured witnesses-P.Ws. 1 and 2;
(2) The charges are proved by the evidence of eye-witness-P.W. 3;
(3) The evidence of P.Ws. 1 to 3 is corroborated by the evidence of doctor-P.W. 7;
(4) Evidence of P.Ws. 1, 2 and 7 corroborated by the circumstantial evidence namely, seizure of M.O.1-wooden club used in the commission of the offences under mahazar-Ex. P2 and mahazar witnesses P.Ws. 5 and 6.
9. The accused challenged the said Judgment of conviction and sentence before the Fast Track Court, Chikmagalur in Crl.A. No. 244/2010. The learned Presiding Officer of the Fast Track Court allowed the said appeal and set aside the Judgment and Order of conviction and sentence passed by the trial Court and acquitted the accused of the charges on the following grounds:
(1) The evidence on record shows the long time enmity between the accused and P.Ws. 1 and 2. Therefore, the evidence of P.Ws. 1 and 2-injured has to be appreciated cautiously.
(2) P.W. 2 is not the direct witness to the assault on P.W. 1 as per her own evidence.
(3) P.W. 3 also has not witnessed the incident as per her own evidence.
(4) There are material contradictions and inconsistency in the evidence of P.Ws. 1, 2 and 7 with regard to the particulars of the injuries and the place of the incident.
(5) There is a delay in filing the complaint, which is not satisfactorily explained.
(6) The evidence of P.W. 1 and P.W. 8-Investigating Officer contradict each other in material aspects.
(7) The evidence of doctor-P.W. 7 is not reliable and does not corroborate the evidence of P.Ws. 1 and 2.
(8) The opinion of the doctor-P.W. 7 with regard to the injury of P.W. 2 in the wound certificate-Ex. P5 is without basis.
(9) The evidence of P.Ws. 4 and 5 with regard to seizure of the club is unacceptable.
(10) The learned Magistrate has failed to appreciate the evidence of P.Ws. 1 to 8 in proper perspective and thus the order of conviction and sentence is unsustainable.
10. Learned HCGP Smt. Namitha Mahesh B.G., reiterating the grounds of the appeal seeks to assail the order of the first appellate Court on the following grounds:
(1) The first appellate Court committed error in appreciating the evidence of injured witnesses-P.Ws. 1 and 2 and eye-witness-P.W. 3.
(2) The evidence of P.W. 7-doctor shows that P.Ws. 1 and 2 have suffered injuries as shown in the wound certificate Exs. P4 and P5 and the first appellate Court should have seen that P.Ws. 1 and 2 have no reason to shield the culprit and to falsely implicate the accused.
(3) The first appellate Court should have seen that P.W. 7-doctor is an independent witness and there is no reason for him to falsely implicate the accused.
(4) The first appellate Court committed error in magnifying the minor inconsistencies and contradictions occurred in the oral evidence of the witnesses.
(5) The first appellate Court should have seen that the evidence of the injured and the eye-witness inspired the confidence of the learned Magistrate. Having regard to that the first appellate Court should not have interfered with the order of the trial Court.
11. Per Contra, Sri. V.D. Raviraj, learned counsel for the accused seeks to justify the impugned order of the first appellate Court on the following grounds:
(1) There is a delay in filing the complaint, which is not explained much less satisfactorily explained.
(2) There is suppression of genesis of the incident. While P.Ws. 1 and 2 say that Ex. P1-complaint was recorded in the hospital, PW-8 says that PW-1 appeared in police station and filed complaint.
(3) P.W. 1 says that after the assault, P.W. 2 fell unconscious and leaving injured-P.W. 2, she went to Hanthavani village from where she brought Baby, Jose, Srinivas, Nagaraj to the scene of occurrence and thereafter herself and injured-P.W. 2 stayed in the house of Jose at Hanthavani village and in the next morning they went to hospital. Whereas P.W. 2 says that after the assault about 15 minutes he was unconscious and by the time he regained consciousness P.Ws. 1 and 3 were in the scene of occurrence.
(4) P.W. 1 says that it took about one hour to return to Hanthavani village. P.W. 2 says that after he gained consciousness they dropped P.W. 3 to her house and returned to their house.
(5) P.Ws. 1 and 2 state that Baby, Jose, Srinivas and Nagaraj and one Pradeep and Mohan tried to question the accused in his house about his conduct and tried to settle the matter but, he did not agree. Thereafter they went to hospital.
(6) When P.Ws. 1 and 2 say that P.W. 1 has suffered injuries on her right hand and right leg and P.W. 2 has suffered injuries on his head and left hand, Exs. P4 and 5-wound certificates speak of only simple injury on the right forearm of P.W. 1 and injury on the elbow of P.W. 2, they did not speak about the other injury.
(7) While P.W. 1 states that in the incident their clothes got stained with blood. P.W. 2 states that in the assault, he has not suffered any bleeding injury, only P.W. 1 has suffered bleeding injury on her right hand due to breaking of her bangles.
(8) P.W. 7 states that he does not know clothes of the victims being blood stained.
(9) The evidence of P.Ws. 1 and 2 shows that P.W. 2 was addicted to alcohol and it was P.W. 2 who used to go to the house of the accused drunk and make 'galata'.
(10) The Investigating Officer has not collected the blood stained clothes of P.Ws. 1 and 2, and the original M.L.C. register.
(11) The seizure of M.O.1-wooden club is not proved as the witnesses have not supported the seizure.
(12) Investigating Officer has no explanation for not recording the statement of the orthopedist, who allegedly treated P.W. 2 and issued X-ray report pertaining to the injury of PW-2 and not examining neighbours of PW-1 or Hanthavani villagers referred to by P.W. 1.
(13) Having regard to the aforesaid material inconsistencies in the evidence, the first appellate Court is justified in reversing the findings of the trial Court on re-appreciation of the evidence. Such findings cannot be reversed by this Court in the second appeal unless it is shown that there is manifest illegality in the impugned order of the first appellate Court.
12. Having regard to the rival contentions of the parties, the point that arises for our consideration is;
Whether the prosecution has proved beyond reasonable doubt the charges brought against the accused, warranting interference of this Court in the order of acquittal passed by the First Appellate Court?
13. It is the settled position of law that the scope of interference under Section 378 of Cr.P.C. at the appellate stage in an order of acquittal is limited. Unless it is shown that the order of acquittal suffers manifest illegality, it cannot be interfered. The impugned order of acquittal passed by the first appellate Court cannot be reversed, merely because re-appreciation of evidence leads to another possible view, unless the view taken for acquittal is shown to be manifestly illegal. Whenever two views are possible, the view which is favourable to the accused is to be accepted.
14. Since two Courts below have taken divergent view regarding evidence of the witnesses, we have to appreciate the evidence to find out which of the view is probable and acceptable.
15. The trial Court has placed the conviction of the accused based on the evidence of P.Ws. 1 to 3 and the doctor-P.W. 7. To prove the charges or accept the evidence of P.Ws. 1 to 3, basically the prosecution has to prove the scene of occurrence and the presence of the accused and P.Ws. 1 to 3 at the scene of occurrence at the time of the alleged offences.
16. In Ex. P2-mahazar, the scene of occurrence is shown as the road near the house of the accused in Mavinakodige village. Even P.Ws. 1 to 3 also speak about the same place. P.W. 5 in his examination-in-chief itself states that if anybody shouts loudly from the house of P.W. 2 that is audible to his house and the house of the accused. It has come in the evidence of the witnesses that the distance between the house of the accused and P.Ws. 1 and 2 is half a furlong. It has come in the evidence of P.W. 2 that the distance between the scene of occurrence and the house of P.W. 3 is half a furlong.
17. P.W. 1 in her cross-examination states that on the day of the incident, in the house of the accused himself and his wife were present. P.Ws. 1 to 3 state that when the accused assaulted, P.W. 2 raised alarm and on hearing the same, P.Ws. 2 and 3 turned back and saw the accused. P.W. 1 says that she saw the accused assaulting P.W. 2. Having regard to this evidence, if any such commotion took place as stated by P.Ws. 1 to 3, then that should have been heard by P.Ws. 4 and 5 and the wife of the accused.
18. The Investigating Officer does not cite the wife of the accused as charge sheet witness. The incident is stated to have been taken place at 8.00 p.m. in a tiny village. Therefore, the Investigating Officer could have examined any other independent witness to ascertain the occurrence of the incident. P.W. 4 who is cited as res gestae witness does not support the prosecution version that he saw the accused and the injured victims together and in that regard he has given statement as per Ex. P.3.
19. P.W. 1 says that after the incident she went to Hanthavani village and returned to the scene of occurrence with Baby, Jose, Srinivas and Nagaraj, then herself and P.W. 2 stayed in the house of the said Jose in Hanthavani village during that night and in the next morning they went to hospital. Whereas P.W. 2 says that after return of P.W. 1 from Hanthavani village, himself and P.W. 1 along with P.W. 3 went to the house of P.W. 3, dropped her in her house and came back to their house and next morning they went to the hospital. Contrary to the evidence of P.Ws. 1 and 2, P.W. 3 says that since the accused threatened P.W. 1 and P.W. 2 of their lives, she sent both of them from her house to their house through an alternate route. Therefore, there is no consistency in the evidence of P.Ws. 1 to 3 regarding the place of their stay during that night.
20. Admittedly, P.W. 3 the alleged eye-witness is the farm servant of P.Ws. 1 and 2. In her cross-examination P.W. 3 clearly states that P.W. 2 brought her to the Court and herself and P.W. 2 discussed she should depose before the Court in the fashion she deposed. Therefore, it is clear that P.W. 3 is a tutored witness. Whether P.W. 3 is an eye-witness, again depends upon the proof of occurrence of the incident on 30.01.2010 at 8.00 p.m. as alleged.
21. The complaint is said to be filed on 31.01.2010 at 10.00 a.m. i.e., more than 12 hours after the incident. As could be seen, the F.I.R. is delivered to the learned Magistrate on 31.01.2010 at 2.15 p.m. Even the time and place of filing the complaint-Ex. P1 smacks suspicion and inconsistency. P.W. 1 states that for want of conveyance and since it was night, they went to hospital on the next day at about 8.30 a.m. She states when they were being treated in the hospital, the hospital authorities gave intimation to the Police, the Police visited the hospital, enquired them and recorded their statements.
22. P.W. 7 the doctor does not say anything about he issuing any medico legal intimation to the Police. P.W. 7 in his chief-examination deposes that P.Ws. 1 and 2 appeared before him at about 9.15 a.m., he examined them, X-ray of P.W. 2 was taken and he found fracture of right ulna bone. In his cross-examination he states that P.Ws. 1 and 2 were in the hospital for examination only for 15 minutes and then they went back. He further states that after giving first-aid, he referred P.W. 2 to orthopedist and they went there.
23. P.W. 8-P.S.I., who registered the complaint and conducted investigation and filed the charge-sheet states that on 31.01.2010 at 10.00 a.m. P.W. 1 appeared before him in the Police Station and filed complaint-Ex. P1. He does not speak about receipt of any medico legal intimation from the hospital or visiting the hospital and recording the statement of P.Ws. 1 and 2. Therefore, the very genesis of filing the complaint smacks doubts.
24. According to the accused P.W. 2 used to go to the house of the accused drunk and make 'galata, despite the villagers advising him, he did not mend his behaviour and due to such enmity, he got filed a false complaint through his wife-P.W. 1. Though P.W. 2 denies all these suggestions, P.W. 1-who is none-else the wife of P.W. 2, in her cross-examination admits that P.W. 2 is habituated to alcohol. For the suggestion that P.W. 2 consuming alcohol used to go to the house of the accused and make galata, she says that since the accused had assaulted her, in that anger, once P.W. 2 went to the house of the accused and made galata.
25. It has also come in the evidence that there was previous ill-will between the accused and P.Ws. 1 and 2. Having regard to this evidence, delay in filing the complaint assumes significance. In the absence of non-examination of residents of the houses surrounding the scene of occurrence and wife of the accused to prove the presence of accused and P.W. 1 to P.W. 3 at the scene of occurrence at the time of the alleged incident, the said fact becomes doubtful. Having regard to the admission of P.W. 3 in her cross-examination that she is a tutored eyewitness and the admitted fact of she being their farm servant, her presence at the scene of occurrence becomes doubtful.
26. Then the next question is why the evidence of injured P.Ws. 1 and 2 shall be disbelieved. P.Ws. 1 and 3 both deposed that they were proceeding ahead of P.W. 2 and only on listening the cries of P.W. 2 they turned back and saw the accused. P.W. 1 says that the accused assaulted P.W. 2 but, in the complaint-Ex. P1 itself P.W. 1 has stated that her husband was coming behind her and when her husband raised alarm, she turned back and saw the accused and that the accused had caused injury to P.W. 2. She states in the complaint that the accused came from the back side of P.W. 2 and assaulted him.
27. In the complaint, the allegations are that the accused first assaulted P.W. 2 and thereafter when P.W. 1 went to his rescue, he assaulted her also. But, P.W. 1 in her chief-examination states that the accused assaulted P.W. 3 also when she went to rescue of herself and P.W. 2. P.W. 2 says that the accused slapped P.W. 3 when she went to their rescue. P.W. 3 also deposed on the same line.
28. In the complaint there is no whisper about the accused assaulting P.W. 3. P.W. 3 does not go to Police or the doctor alleging any injury. The trial Court says that the evidence of P.Ws. 1 and 2 is corroborated by the evidence of doctor-P.W. 7, therefore, that shall be believed. It is to be noted that despite the averment in the complaint dated 31.01.2010 that after getting treatment in the hospital, she has filed the complaint, P.W. 8 does not collect the wound certificate immediately. P.W. 7 has not issued any medico legal intimation or M.L.C. register extract to the Investigating Officer and does not even bring those documents before the Court. It is not known if at all anything was recorded in the M.L.C. register about the examination of P.W. 1 and P.W. 2.
29. The wound certificates-Exs. P4 and 5 were collected on 29.03.2010 nearly two months after the complaint. In Ex. P4-wound certificate of P.W. 1, the history is recorded as "assault by Umesha at 8.00 p.m. on 30.01.2010 with wooden club". In Ex. P.4, the place of the incident is not mentioned. In Ex. P5-wound certificate of P.W. 2 the history is recorded as "assault by one Umesha with a wooden club on 30.01.2010 at 8.00 p.m.... on the road near Umesh's house". Thus there is improvement in Ex. P5 with regard to place of incident. The entries regarding time and place of incident are not in continuity but, they are written in the gaps available. The Investigating Officer and P.W. 7 had no explanation as to why the M.L.C. register extract was not collected/issued.
30. P.W. 7-doctor in his chief-examination does not whisper anything about he referring P.W. 2 to orthopedist. Only in the cross-examination he says that he referred P.W. 2 to orthopedist. As per Ex. P4, P.W. 1 had suffered bleeding injury because she had about 12 hours old clotted blood. When P.W. 1 says that herself and P.W. 2 suffered bleeding injuries and their clothes were stained with blood, P.W. 2 states that only P.W. 1 had suffered bleeding injuries due to breaking of her bangles and their clothes were not stained with blood. P.W. 7 the doctor says that he did not remember whether the clothes of P.Ws. 1 and 2 were stained with blood.
31. P.W. 7 the doctor mentions in Ex. P5 that there was a fracture and he noted that on reading the X-ray and its report. He does not even bother to mention particulars of the said X-ray or report viz., number etc. He does not produce any reference letter before the Court. Though P.W. 7 is an independent witness, having regard to the aforesaid facts and non production of any original hospital records viz., M.L.C. register, reference letter, X-ray report or any O.P.D. register extract, his evidence does not inspire confidence of the Court. Therefore, it cannot be said that his evidence corroborates the evidence of P.Ws. 1 and 2. Thus, the evidence of P.Ws. 1 to 3 is not cogent and consistent to bring home the guilt of the accused.
32. Then what remains is the circumstance of recovery of the club-M.O.1. P.Ws. 5 and 6 are examined to prove recovery of club-M.O.1. P.Ws. 5 and 6 do not support the proceedings under the mahazar Ex. P2. According to P.W. 2, in the presence of panchas-P.Ws. 5 and 6, he pointed out the scene of occurrence and the club-M.O.1 which was lying at the scene of occurrence, produced the same and the Investigating Officer seized the said weapon.
33. Regarding Ex. P2, P.Ws. 5 and 6 say that the Police told them that the galata has taken place between the accused and P.Ws. 1 to 3 in that place and Police only showed the club to them and took their signatures on Ex. P2. Though they were treated as hostile witnesses, nothing is elicited in their cross-examination to show that P.W. 2 was present and produced M.O.1. Thus the circumstance, seizure of M.O.1 is not proved.
34. The trial court without taking into consideration the aforesaid material inconsistencies in the evidence of the witnesses, more importantly P.Ws. 1 to 3, 7 and 8, proceeded to hold that P.Ws. 1 and 2 being the injured-witnesses and P.W. 3 being the eye-witness, their evidence shall be believed and their evidence is further corroborated by the evidence of P.W. 7. The evidence of P.Ws. 1 to 3, 7 and 8 is not appreciated by the trial Court in proper perspective.
35. The Trial Court has failed to note that genesis of the complaint/first information itself is suppressed and the charge is not proved beyond reasonable doubt. The first appellate Court taking into consideration all these aspects, on re-appreciation of the evidence rightly reversed the order of conviction and sentence passed by the trial Court. The impugned Judgment and Order do not call for interference by this Court.
Hence, the appeal is dismissed.
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