M C DHARMESH vs THE STATE OF KARNATAKA
- Court
- Karnataka High Court
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HC-KAR
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CRL.A No. 2251 of 2018
C/W CRL.A No. 2086 of 2018
CRL.A No. 2152 of 2018
®
CNR: KAHC010261382018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 9 DAY OF OCTOBER, 2026
PRESENT
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
AND
THE HON'BLE MR. JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 2251 OF 2018 (A)
C/W
CRIMINAL APPEAL NO. 2086 OF 2018 (C)
CRIMINAL APPEAL NO. 2152 OF 2018 (C)
IN CRL.A No. 2251/2018
BETWEEN:
SRI. NATARAJ
S/O LATE PUTTE GOWDA,
AGED 35 YEARS,
AGRICULTURIST,
R/O MAVINAHALLI,
VASTARE HOBLI,
CHIKKAMAGALURU TALUK.
…APPELLANT
(BY SRI. ASHOK N. NAIK, ADVOCATE (PH))
AND:
1. M.C. DHARMESH
S/O CHOWDEGOWDA,
AGED ABOUT 33 YEARS,
AGRICULTURIST,
2. DEVARAJ M.P.
S/O PUTTEGOWDA,
Digitally
signed by
LAKSHMI T
Location:
High Court
of Karnataka
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CRL.A No. 2251 of 2018
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AGED 32 YEARS,
AGRICULTURIST,
3. VENKATESH @ VENKATESH GOWDA
S/O DEVEGOWDA,
AGED 52 YEARS,
4. M.C. RAVI
S/O CHOWDEGOWDA,
AGED ABOUT 30 YEARS,
AGRICULTURIST,
5. PRASANNA
S/O VENKATESH GOWDA,
AGED 27 YEARS,
AGRICULTURIST,
6. M.L. BHARATH
S/O LOKESH M.P.,
AGED 18 YEARS,
7. SMT. KRISHNAMMA
W/O CHOWDEGOWDA,
AGED ABOUT 55 YEARS,
HOUSEWIFE,
8. SMT. RAMAMMA
W/O VENKATESH GOWDA,
AGED 48 YEARS,
HOUSEWIFE,
9. SMT. SHARADA H.A.
W/O DHARAMESH,
AGED 28 YEARS,
HOUSEWIFE,
10. PADMA @ PADMAMMA A.M.
W/O LOKESH,
AGED ABOUT 38 YEARS,
HOUSEWIFE,
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CRL.A No. 2251 of 2018
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CRL.A No. 2152 of 2018
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11. M.P. LOKESH @ SWAMY
S/O LATE PUTTEGOWDA,
AGED 40 YEARS,
AGRICULTURIST,
ALL ARE R/A MAVINAHALLI,
VASTHARE HOBLI,
CHIKKAMAGALURU TALUK.
12. STATE BY ALDUR POLICE
CHIKKAMAGALURU
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE.
…RESPONDENTS
(BY SRI. P.P. HEGDE, SENIOR COUNSEL FOR
SRI. PRUTHVIRAJ S., ADVOCATE FOR R1 TO R11
(VK NOT FILED);
SRI. RAHUL RAI, HCGP FOR R12 (PH))
THIS CRL.A. IS FILED U/S.372 CR.P.C., PRAYING TO:
CALL FOR RECORDS, LEADING TO S.C.NO.13/2014, BY THE
PRINCIPAL DISTRICT AND SESSIONS JUDGE,
CHIKKAMAGALURU AND; (A) SET ASIDE THE JUDGMENT AND
ORDER OF ACQUITTAL ANNEXURE-1 DATED 30-10-2018
UNDER SECTION 307 R/W 149 I.P.C. AGAINST ACCUSED
NOS.1 TO A11 & AWARDING OF LESSER SENTENCES AND
INADEQUATE COMPENSATION PASSED BY THE LEARNED
PRINCIPAL DISTRICT AND SESSIONS JUDGE,
CHIKKAMAGALURU IN S.C.NO.13/2014 BY ALLOWING THIS
APPEAL AND; (B) CONVICT AND SENTENCE THE RESPONDENT
NOS.1 TO 11/ACCUSED NOS.A1 TO A11 FOR THE OFFENCES
PUNISHABLE UNDER SECTION 307 R/W 149 I.P.C. WITH
WHICH THEY HAVE BEEN CHARGED AND AWARDING
ADEQUATE COMPENSATION IN ACCORDANCE WITH LAW.
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IN CRL.A NO. 2086/2018
BETWEEN:
1. SRI. DEVARAJ M.P.
S/O PUTTEGOWDA,
AGED ABOUT 36 YEARS,
2. SRI. M.L. BHARATH
S/O LOKESH M.P.,
AGED ABOUT 22 YEARS,
3. SMT. PADMA @ PADMAMMA A.M.
W/O LOKESH,
AGED 42 YEARS,
4. SRI. M.P. LOKESH @ SWAMY
S/O LATE PUTTEGOWDA,
AGED ABOUT 44 YEARS,
AGRICULTURIST,
ALL ARE RESIDENTS OF
MAVINAHALLI, VASTHARE HOBLI,
CHIKKAMAGALURU TALUK-577 101.
...APPELLANTS
(BY SRI. P.P. HEGDE, SENIOR COUNSEL FOR
SRI. PRUTHVIRAJ S., ADVOCATE (PH))
AND:
THE STATE OF KARNATAKA
THROUGH ALDUR POLICE STATION,
CHIKKAMAGALURU DISTRICT.
REPRESENTED BY
THE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU-560 001.
...RESPONDENT
(SRI. RAHUL RAI, HCGP (PH))
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C/W CRL.A No. 2086 of 2018
CRL.A No. 2152 of 2018
CNR: KAHC010261382018
THIS CRL.A. IS FILED U/S.374(2) CR.P.C., PRAYING TO:
(I) CALL FOR RECORDS IN S.C.NO.13/2014 ON THE FILE OF
THE PRINCIPAL DISTRICT AND SESSIONS JUDGE,
CHIKKAMAGALURU; (II) SET ASIDE THE IMPUGNED
JUDGMENT OF CONVICTION DATED 30.10.2018 AND ORDER
ON SENTENCE DATED 31.10.2018 IN S.C.NO.13/2014 ON THE
FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE,
CHIKKAMAGALURU AND CONSEQUENTLY ACQUIT THE ABOVE
ACCUSED/APPELLANTS OF THE CHARGES LEVELED AGAINST
THEM.
IN CRL.A NO. 2152/2018
BETWEEN:
1. M.C. DHARMESH
AGED ABOUT 37 YEARS,
S/O CHOWDEGOWDA,
AGRICULTURIST,
2. VENKATESHA @ VENKATESH GOWDA,
S/O DEVEGOWDA,
AGED ABOUT 57 YEARS,
AGRICULTURIST,
3. M.C. RAVI
AGED ABOUT 35 YEARS,
S/O CHOWDEGOWDA,
AGRICULTURIST,
4. PRASANNA
AGED ABOUT 32 YEARS,
S/O VENKATESHGOWDA,
AGRICULTURIST,
5. SMT. KRISHNAMMA
AGED ABOUT 60 YEARS,
W/O CHOWDEGOWDA,
HOME MAKER,
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6. SMT. RAMAMMA
AGED ABOUT 58 YEARS,
W/O VENKATESHGOWDA,
HOME MAKER,
7. SMT. SHARADA H.A.
AGED ABOUT 32 YEARS,
W/O DHARMESH,
HOME MAKER,
ALL ARE RESIDENT OF
MAVINAHALLI, VASTHARE HOBLI,
CHIKKAMAGALURU TALUK-577 101.
...APPELLANTS
(BY SRI. P.P. HEGDE, SENIOR COUNSEL FOR
SRI. PRUTHVIRAJ S., ADVOCATE (PH))
AND:
THE STATE OF KARNATAKA
THROUGH ALDUR POLICE STATION,
CHIKKAMAGALURU DISTRICT,
REPRESENTED BY THE
PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE-560 001.
...RESPONDENT
(SRI. RAHUL RAI, HCGP (PH))
THIS CRL.A. IS FILED U/S.374(2) CR.P.C., PRAYING TO:
(I) CALL FOR RECORDS IN S.C.NO.13/2014 ON THE FILE OF
THE PRINCIPAL DISTRICT AND SESSIONS JUDGE,
CHIKKAMAGALURU; (II) SET ASIDE THE IMPUGNED ORDER
DATED 30.10.2018 JUDGMENT AND CONVICTION IN
S.C.NO.13/2014 ON THE FILE OF THE PRINCIPAL DISTRICT
AND SESSIONS JUDGE, CHIKKAMAGALURU AND
CONSEQUENTLY ACQUIT THE ABOVE ACCUSED/APPELLANTS
OF THE CHARGES LEVELED AGAINST THEM.
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CRL.A No. 2251 of 2018
C/W CRL.A No. 2086 of 2018
CRL.A No. 2152 of 2018
CNR: KAHC010261382018
THESE CRIMINAL APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 01.09.2026, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
CORAM: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
and
HON'BLE MR. JUSTICE G BASAVARAJA
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ)
These three Criminal Appeals arise out of the
judgment of conviction dated 30.10.2018 and the order on
sentence dated 31.10.2018 passed by the learned
Principal District and Sessions Judge, Chikkamagaluru, in
S.C.No.13/2014.
2. Crl.A.No.2251/2018 is preferred by the injured
victim/PW.1-Nataraj under Section 372 of the Code of
Criminal Procedure, calling in question the acquittal of
accused Nos.1 to 11 of the offence punishable under
Sections 307 r/w 149 of IPC and seeking appropriate
enhancement of compensation.
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3. Crl.A.No.2086/2018 is preferred by accused
Nos.2, 6, 10 and 11, while Crl.A.No.2152/2018 is
preferred by accused Nos.1, 3 to 5 and 7 to 9, calling in
question their conviction and sentence recorded by the
Trial Court.
4. The State is the complainant/respondent in the
appeals preferred by the accused. In Crl.A.No.2251/2018,
accused Nos.1 to 11 are respondents.
5. Heard Sri Ashok N. Naik, learned counsel
appearing for the appellant/injured victim in
Crl.A.No.2251/2018; learned Senior Counsel Sri P.P.Hegde
for learned counsel Sri.Pruthviraj appearing for accused
Nos.1 to 11/respondents in the said appeal and also for
the appellants in Crl.A.Nos.2086/2018 and 2152/2018;
and learned High Court Government Pleader Sri. Rahul Rai
appearing for the State.
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CRL.A No. 2251 of 2018
C/W CRL.A No. 2086 of 2018
CRL.A No. 2152 of 2018
CNR: KAHC010261382018
Brief Facts of the Case:
6. It is the case of the prosecution that there was
an existing dispute relating to the use of a portion of land
belonging to PW.1 as a pathway by accused No.3-
Venkatesh Gowda. The proceedings had earlier taken place
before the Tahasildar concerning the said pathway and the
decision had gone in favour of PW.1. On account of the
said dispute, on 12.12.2012, at about 9.00 p.m., when
PW.1-Nataraj and PW.2-Ramesh were proceeding on a
motorcycle near the house of Chowdegowda at Mavinahalli
Village, the accused Nos.1 to 11, who were present near
the said place, formed an unlawful assembly and
obstructed their passage and questioned them regarding
the right of way. Accused No.1-Dharmesh assaulted PW.1-
Nataraj on his head with a chopper; accused No.2-Devaraj
assaulted him with the hind portion of a chopper on his
face; and accused No.3-Venkatesh assaulted him with a
chopper. It is further alleged that accused No.4-Ravi
assaulted PW.2-Ramesh on his head with a chopper and
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accused No.5-Prasanna assaulted him with a club.
Accused No.6-Bharath assaulted PW.3-Vasanthegowda
with a stone. Accused Nos.7 to 10 have assaulted PW.1
with clubs, while accused No.11-Lokesh assaulted Shashi,
who had intervened. It is also alleged that accused Nos.1
and 3 damaged the motorcycle of PW.1. PW.1 sustained
bleeding and grievous injuries and was initially taken to
M.G. Hospital, Chikkamagaluru, and thereafter shifted to
Father Muller Medical Hospital, Mangaluru, for further
treatment. PW.2 and PW.3 sustained simple injuries.
Facts as per Complaint:
7. The complaint lodged by PW.2–M.H. Ramesha,
is that on 12.12.2012 at about 9.00 p.m., after completion
of the work relating to a coffee pulper, the complainant
was proceeding along with Nataraj (PW.1) on a Victor
motorcycle near the house of Chowdegowda at
Mavinahalli. At that time, accused Nos.1 to 11, who were
allegedly present there, wrongfully restrained them and
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picked up a quarrel with them in connection with the
pathway leading to the land of accused No.3. According to
the complainant, there was a dispute between PW.1 and
accused No.3 with regard to the use of a portion of the
land belonging to PW.1 as a pathway. It is stated that
PW.1 had purchased about 6 acres 30 guntas of land from
Veeregowda and that accused No.3 was using a portion of
the said land as a pathway to reach his land. It is alleged
that proceedings had been initiated before the Tahasildar
in respect of the said pathway and, as PW.1 had
succeeded therein, he had prevented accused No.3 from
using the said portion as a pathway. According to the
prosecution, the said dispute was the background for the
incident in question. It is further alleged in the complaint
that accused No.1–M.C. Dharmesh assaulted PW.1 on his
head with a chopper; accused No.2–M.P. Devaraj
assaulted him on the right side of his abdomen and face
with a chopper; and accused No.3–Venkatesh @
Venkatesh Gowda assaulted him with a chopper on his
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thigh and abdomen. Accused No.4–M.C. Ravi assaulted
PW.2 on his head with a chopper, while accused No.5–
Prasanna assaulted PW.2 on his abdomen with a club. It
is further alleged that accused No.6–M.L. Bharath
assaulted PW.3 with a stone; accused No.7–Krishnamma
assaulted PW.1 on his private parts with a club; accused
Nos.8 and 9, namely, Smt. Ramamma and Smt. Sharada
H.A., assaulted PW.1 with clubs; and accused No.11–M.P.
Lokesh @ Swamy assaulted Shashi with a club. It is also
alleged that accused Nos.1 and 3 damaged the motorcycle
of PW.1 by pelting stones. The complaint further states
that PW.1 sustained bleeding and serious injuries in the
assault and was initially taken to M.G. Hospital,
Chikkamagaluru, from where he was referred to Father
Muller Hospital, Mangaluru, for further treatment. It is
alleged that the accused persons, who had formed an
unlawful assembly and were armed with choppers, clubs
and stones, had assaulted the complainant party and
caused injuries to them.
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8. On the basis of the said complaint, Crime
No.149/2012 came to be registered by Aldur Police Station
for the offences punishable under Sections 143, 147, 148,
341, 504, 324, 307, 427 read with Section 149 of the IPC
against accused Nos.1 to 11. Thereafter, investigation
was taken up by PW.12-Shivakumar, Police Sub-Inspector.
On completion of investigation, the charge-sheet was filed
against 12 accused, alleging commission of offences
punishable under Sections 143, 147, 148, 341, 504, 324,
307, 114 and 427 read with Section 149 of IPC. Insofar as
accused No.12 was concerned, though Section 114 IPC
was referred to in the charge-sheet, the Trial Court, by a
separate order, found material to frame a charge under
Section 212 IPC for harbouring the offenders. The said
order was challenged by accused No.12 before this Court
in Crl.R.P.No.332/2015, which came to be dismissed on
05.11.2015.
9. The Trial Court framed charges against accused
Nos.1 to 11 for the offences punishable under Sections
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143, 147, 148, 341, 504, 324, 307 and 427 read with
Section 149 of IPC. A specific charge was framed against
accused No.12 for the offence punishable under Section
212 of IPC, alleging that he harboured accused Nos.2, 3
and 11 knowing or having reason to believe them to be
offenders. The accused pleaded not guilty and claimed to
be tried.
10. In order to establish its case, the prosecution
examined 14 witnesses as PWs.1 to 14, produced and
marked 23 documents as Exs.P1 to P23 and identified 16
material objects as MOs.1 to 16.
11. PW1 to PW3 are the injured witnesses. The
medical evidence included the wound certificates of PWs.1
to 3, the discharge summary relating to PW.1 and the
opinion of the medical officer regarding the possibility of
the injuries being caused by the material objects produced
before him. The Trial Court has recorded that the wound
certificate of PW.1 disclosed incised wounds, absence of
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two upper incisor teeth and a depressed fracture of the left
parietal region, which the doctor classified as grievous
injuries.
12. After completion of the prosecution evidence,
the incriminating circumstances appearing against the
accused were put to them in their statements under
Section 313 of Cr.P.C. The accused denied the
incriminating circumstances. Accused Nos.1, 3 and 6 also
submitted written statements setting out their respective
defence. The defence examined two witnesses, namely
DW.1-Dr. G. Nagaraj and DW.2-Dr. Edward Nazrath, and
marked documents as Exs.D1 to D7.
13. The defence, inter alia, was that the
prosecution had suppressed the actual occurrence and that
PW.1 and his companions were the aggressors. It was
suggested that there was a counter case arising out of the
same incident and that the accused persons had
themselves sustained injuries. A defence was also set up
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that PW.1 and others, while allegedly assaulting accused
No.3-Venkatesh Gowda and others, fell from the
motorcycle and sustained injuries.
14. Upon appreciation of the evidence, the learned
Trial Judge answered the relevant points in favour of the
prosecution insofar as the formation of unlawful assembly,
rioting, wrongful restraint and causing hurt were
concerned. The Trial Court found that accused Nos.1 to 11
were guilty of offences punishable under Sections 143,
147, 148, 341, 324 and 326 read with Section 149 of IPC.
However, the Trial Court held that the prosecution had
failed to establish the offences punishable under Sections
504, 427 and 307 read with Section 149 of IPC.
15. Consequently, by judgment dated 30.10.2018,
accused Nos.1 to 11 were convicted for the aforesaid
offences, while accused No.12 was acquitted of the charge
under Section 212 of IPC. The Trial Court thereafter, by
order dated 31.10.2018, sentenced accused Nos.1 to 11 to
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undergo simple imprisonment for three years and to pay a
fine of Rs.5,000/- each for the offence under Section 326
read with Section 149 of IPC, along with separate
sentences for the offences under Sections 324, 148 and
341 read with Section 149 of IPC. All the sentences were
ordered to run concurrently. A sum of Rs.40,000/- out of
the fine amount, if realised, was directed to be paid to
PW.1-Nataraj as compensation under Section 357(1) of
Cr.P.C.
Arguments urged in Crl.A.No.2251/2018
16. Learned counsel appearing for the
appellant/injured victim, submitted that the Trial Court,
having accepted the evidence of PW.1 and the medical
evidence regarding the injuries sustained by him, was not
justified in acquitting accused Nos.1 to 11 of the offence
punishable under Section 307 read with Section 149 of
IPC.
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17. It was submitted that PW.1 is an injured
witness and his presence at the place of occurrence is not
in dispute. According to the learned counsel, the evidence
discloses that accused No.1 assaulted PW.1 on the head
with a chopper, while accused Nos.2 and 3 also assaulted
him with choppers. The injuries suffered by PW.1 included
a depressed fracture of the left parietal region and loss of
two teeth. The learned counsel placed reliance upon the
evidence of PW.6-Dr. Madhukar T. Nayak and PW.7-Dr.
Mohammed Saliya and the medical records to contend that
the nature and location of the injuries, coupled with the
weapons allegedly used, warranted conviction under
Section 307 of IPC. The written submissions on behalf of
the victim specifically rely upon the head injury, the
depressed fracture and the evidence of the doctors in
support of this contention.
18. Learned counsel further submitted that the Trial
Court erred in treating the injuries as insufficient to attract
Section 307 of IPC merely on the ground that the medical
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evidence did not establish that the injuries were sufficient
in the ordinary course of nature to cause death. According
to him, the nature of the assault, the weapons used and
the manner in which the assault was alleged to have been
committed were relevant circumstances in determining the
intention or knowledge of the assailants.
19. It was further contended that the evidence of
PW.1 is corroborated by PW.2 and the medical evidence
and that the Trial Court ought to have given due weight to
the evidence of the injured witness. It was argued that the
acquittal under Section 307 read with Section 149 of IPC
was therefore not justified.
20. Learned counsel also submitted that the
compensation of Rs.40,000/- awarded to PW.1 under
Section 357(1) of Cr.P.C. was wholly inadequate having
regard to the injuries suffered by him and the treatment
undergone by him. The memorandum of appeal
consequently seeks appropriate interference with the
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impugned judgment insofar as the acquittal under Section
307 read with Section 149 of IPC is concerned and also
seeks appropriate compensation to the injured victim.
21. Learned Counsel has placed reliance upon the
following judgments:
a) Dahyabhi Chhanganbhai Thakkar v. State of
Gujarat reported in AIR 1964 SC 1563;
b) State of Maharashtra v. Balram Bama Patil
reported in 1983 (2) SCC 28;
c) Jage Ram v. State of Haryana reported in
2015(11) SCC 366;
d) Mallikarjuna Reddy v. State of Karnataka in
Criminal Appeal No.339/2009 Dated
03.02.2014;
Arguments urged in Crl.A.Nos.2086/2018 &
2152/2018
22. Learned Senior Counsel appearing for the
appellants/accused, submitted that the impugned
judgment of conviction is contrary to the evidence on
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record and has been rendered without properly
appreciating the defence version and the material
circumstances emerging from the record.
23. The primary contention was that the
prosecution case arose out of a case and counter-case
relating to the same occurrence and that the manner in
which the two cases were investigated and tried was
contrary to the procedure required to be followed in cases
and counter-cases. It was contended that the two cases
were investigated by different Investigating Officers and
that the Investigating Officer did not determine at the
earliest stage as to which party was the aggressor.
Reliance was placed upon the principles governing
investigation and trial of case and counter-case, and upon
the decision of the Full Bench of this Court referred to in
the written submissions.
24. Learned Senior Counsel submitted that the
failure to follow the prescribed procedure in a case and
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counter-case has materially affected the fairness of the
trial. According to him, the Trial Court itself noticed the
existence of the counter-case and the injuries sustained by
some of the accused, but failed to give due consideration
to the said circumstance while appreciating the
prosecution evidence.
25. It was further contended that the prosecution
witnesses are interested and inimical witnesses and that
there is no independent eyewitness supporting the
prosecution version. Learned Senior Counsel submitted
that the prosecution substantially rests upon the evidence
of PW.1-Nataraj, PW.2-Ramesh and PW.3-Vasanthegowda,
and that their evidence contains material contradictions
regarding the manner in which the incident occurred and
the subsequent removal of PW.1 to the hospital.
26. It was submitted that PW.1, PW.2 and PW.3
have given different versions regarding who took PW.1 to
the hospital. According to the written submissions, the
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versions of these witnesses regarding the vehicle/persons
who shifted PW.1 to the hospital are not consistent. It was
therefore contended that the Trial Court ought to have
carefully scrutinised their evidence before recording a
conviction.
27. Learned Senior Counsel further contended that
PW.3-Vasanthegowda had not consistently supported the
prosecution case and had turned hostile during cross-
examination. According to the defence, the material
portions of his evidence, as well as the evidence of PWs.1
and 2, do not furnish the degree of corroboration
necessary to sustain the conviction of all the accused
persons.
28. It was also contended that the medical evidence
does not completely support the ocular version. Learned
Senior Counsel referred to the wound certificates and the
evidence of PW.7-Dr. Mohammed Saliya and submitted
that the medical evidence does not attribute the individual
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injuries to the particular accused persons. It was further
submitted that the injuries attributed to PW.1 and the
manner of assault alleged by the prosecution are not
wholly consistent with the medical evidence.
29. Learned Senior Counsel further submitted that
the prosecution failed to satisfactorily establish the
recovery and seizure of the alleged weapons and other
material objects. According to the defence, although the
prosecution relied upon the spot mahazar and the seizure
of choppers, clubs and stones, the evidence of the panch
witnesses and the Investigating Officer creates serious
doubt regarding the manner and time of seizure. It was
also contended that the alleged blood-stained articles and
weapons were not satisfactorily connected with the
accused persons.
30. It was further argued that the prosecution failed
to establish the existence of adequate light at the place of
occurrence. Learned Senior Counsel referred to the
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evidence relating to the alleged street light and the
headlight of the motorcycle and submitted that the spot
sketch and the evidence of the Investigating Officer do not
establish the existence of sufficient light at the relevant
time. According to the defence, this circumstance assumes
significance since the alleged occurrence took place at
about 9.00 p.m. and the identity and individual overt acts
attributed to the accused were in serious dispute.
31. Learned Senior Counsel also questioned the
delay in forwarding the FIR to the jurisdictional Court. It
was contended that although the case was registered in
the early hours of 13.12.2012, there was considerable
delay in the FIR reaching the Court and that the evidence
of the police witnesses regarding the time of registration
and transmission of the FIR is not consistent. According to
the defence, the said circumstance assumes significance in
the backdrop of the alleged case and counter-case.
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32. Another contention was that the prosecution
failed to establish the individual overt acts attributed to all
the accused. Learned Senior Counsel submitted that
except in respect of a few accused, the allegations are
omnibus in nature and that the evidence does not
establish the participation of each of the appellants in the
manner alleged.
33. Learned Senior Counsel further contended that
the defence version regarding the accused having
sustained injuries in the same occurrence was not properly
appreciated by the Trial Court. It was submitted that the
medical records relating to the injuries sustained by
accused Nos.3, 6 and 11, among others, were brought on
record and that the existence of such injuries was a
material circumstance requiring an explanation from the
prosecution. According to the defence, the prosecution had
failed to satisfactorily explain the injuries sustained by the
accused.
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34. It was also submitted that the Trial Court erred
in rejecting the plea of private defence. According to the
defence, the evidence on record, including the injuries
sustained by the accused persons and the existence of the
counter-case, furnished material to show that the
occurrence had taken place in circumstances different
from those projected by the prosecution.
35. Learned Senior Counsel also assailed the
conviction under Section 326 read with Section 149 of IPC.
It was submitted that the Trial Court itself had found that
most of the injuries attributed to the accused were simple
in nature and that only the injuries relating to the two
teeth and the parietal fracture of PW.1 were treated as
grievous. According to the defence, the medical evidence
did not satisfactorily establish the grievous character of
the injury in the manner required by law and, therefore,
the conviction under Section 326 read with Section 149 of
IPC was unsustainable. The written submissions also
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contend, in the alternative, that the case, if at all, would
fall under Section 324 and not Section 326 of IPC.
36. It was lastly contended that the prosecution
had failed to prove the common object of the alleged
unlawful assembly and that the mere presence of the
appellants at the spot could not, by itself, render them
liable for all the acts attributed to the other accused. The
learned Senior Counsel therefore sought setting aside of
the judgment of conviction and sentence and acquittal of
the appellants.
37. Learned Senior Counsel has placed reliance
upon the following judgments:
a) Non-explanation by the prosecution of the
injuries on the accused – Suppression of the
Genesis.
→
Lakshmi Singh v. State of Bihar reported
in (1976) 4 394;
→
Amarjit Singh v. State of Haryana
reported in (2010) 1 SCC 460;
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b) Ocular evidence irreconcilable with the medical
evidence – When the ocular account must be
rejected.
→
Solanki Chimanbhai Ukabhai v. State of
Gujarat reported in (1983) 2 SCC 174;
→
Abdul Sayeed v. State of M.P., reported
in (2010)10 SCC 259;
c) The public prosecutor / Special Public
prosecutor must be impartial- he cannot be the
complainant’s advocate.
→
Shiv Kumar v. Hukam Chand reported in
(1999) 7 SCC 467;
d) A Special public prosecutor whose fee is borne
by the complainant is impermissible.
→
Mukal Dalal v. Union of India reported in
(1998) 3 SCC 144;
→
K.V. Shiva Reddy v. State of Karnataka
reported in ILR 2005 KAR 4780;
e) Case and Counter-case must be tired in the
manner prescribed – same IO, two different
public prosecutors, same court, each decided
on its own evidence.
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→
Nathi lal v. State of U.P., reported in 1990
Supp SCC 145;
→
State of Karnataka v. Hosakeri Nigappa
reported in ILR 2012 KAR 509;
f) Grievous hurt/ fracture – Section 326 v. 324
IPC and the proof of a fracture.
→
State v. Sheenappa Gowda in Criminal
Appeal No. 530/2002 dated 03.03.2010;
g) Interested and inimical witnesses; absence of
independent witnesses; delay in FIR reaching
the Court.
→
Mahavir Singh v. State of M.P., reported
in (2016) 10 SCC 220;
→
Meharaj Singh v. State of U.P., reported
in (1994) 5 SCC 188.
SUBMISSIONS ON BEHALF OF THE STATE
38. Learned High Court Government Pleader
appearing for the State, opposed the appeals preferred by
the accused and supported the judgment of the Trial
Court.
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39. The learned HCGP submitted that the
prosecution case is supported by the evidence of the
injured witnesses, particularly PW.1-Nataraj and PW.2-
Ramesh, and that their presence at the scene of
occurrence is established. It was submitted that the
medical evidence corroborates the factum of assault and
the injuries sustained by PW.1, PW.2 and PW.3.
40. Learned HCGP further submitted that the Trial
Court, on appreciation of the entire evidence, has recorded
a finding that accused Nos.1 to 11 were members of the
unlawful assembly and that violence was used in
prosecution of its common object. The Trial Court has
specifically relied upon the evidence regarding the use of
choppers, clubs and stones and the injuries sustained by
the injured witnesses.
41. It was further submitted that the Trial Court has
already extended benefit of doubt to the accused in
respect of the offences under Sections 504, 427 and 307
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read with Section 149 of IPC and that the conviction is
confined to the offences which, according to the Trial
Court, stood established from the evidence on record.
42. Learned HCGP therefore sought dismissal of the
appeals preferred by the accused.
43. Insofar as Crl.A.No.2251/2018 preferred by the
injured victim is concerned, the learned High Court
Government Pleader submitted that the matter may be
considered in accordance with the evidence on record and
the findings recorded by the Trial Court.
44. In view of the rival submissions and the
material on record, the following points arise for our
consideration:
(i) Whether the prosecution has proved
beyond reasonable doubt that accused Nos.1 to 11
were members of an unlawful assembly, armed with
deadly weapons, and in prosecution of the common
object of such assembly committed the offences
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punishable under Sections 143, 147, 148, 341, 324
and 326 read with Section 149 of IPC, as held by the
Trial Court?
(ii) Whether the judgment of conviction and
order of sentence passed against accused Nos.1 to
11 call for interference?
(iii) Whether the appellant/injured victim in
Crl.A.No.2251/2018 has made out grounds to
interfere with the acquittal of accused Nos.1 to 11 of
the offence punishable under Section 307 read with
Section 149 of IPC and to enhance the compensation
awarded to him?
45. We have given our anxious consideration to the
arguments advanced by the learned counsel appearing for
the respective parties and perused the entire material on
record.
46. The prosecution case arises out of an incident
which occurred on 12.12.2012 at about 9.00 p.m. in front
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of the house of Chowdegowda at Mavinahalli. The
prosecution alleges that accused Nos.1 to 11 formed an
unlawful assembly, armed with choppers, clubs and
stones, wrongfully restrained PW.1-Nataraj and PW.2-
Ramesha and assaulted them and PW.3-Vasanthegowda.
The genesis of the occurrence, according to the
prosecution, was a dispute relating to the right of way
over the land of PW.1. The Trial Court accepted the
prosecution version and convicted accused Nos.1 to 11 for
the offences punishable under Sections 143, 147, 148,
341, 324 and 326 read with Section 149 of IPC. Accused
Nos.1 to 11 were acquitted of the offences under Sections
504, 427 and 307 read with Section 149 of IPC. Accused
No.12 was acquitted of the offence under Section 212 of
IPC.
47. PW.1-Nataraj, PW.2-Ramesha and PW.3-
Vasanthegowda were examined as injured witnesses. Their
respective wound certificates are marked as Exs.P10, P11
and P12. The medical evidence, therefore, establishes that
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the aforesaid witnesses had sustained injuries in proximity
to the time of the occurrence. However, the mere fact that
a witness had sustained injuries is not, by itself, sufficient
to accept his entire testimony as truthful in all respects.
The evidence of an injured witness ordinarily carries
considerable weight, since such injury furnishes assurance
regarding his presence at the scene. Nevertheless, where
the testimony is subjected to material contradictions or
where circumstances emerging from the evidence create a
serious doubt regarding the genesis and manner of the
occurrence, the same requires careful scrutiny. An injured
witness enjoys a special evidentiary status, but his
evidence can nevertheless be tested against the
surrounding circumstances and other reliable evidence.
48. The principal question, therefore, is whether the
evidence on record establishes, beyond reasonable doubt,
the participation of accused Nos.1 to 11 in the manner
alleged by the prosecution and, in particular, whether the
prosecution has established the common object of the
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alleged unlawful assembly and the individual overt acts
attributed to the respective accused.
49. PW.7-Dr. Mohammed Saliya examined PW.1 to
PW.3 at M.G. Hospital. In respect of PW.1, Ex.P10 records
three simple injuries and two grievous injuries, including
absence of the upper two incisor teeth and the depressed
fracture subsequently recorded in the medical material.
PW.2 and PW.3 had simple injuries.
50. A circumstance of considerable significance is
that some of the accused had also sustained injuries in the
very same occurrence. In this regard, the evidence of
PW.7 assumes importance.
51. In his examination-in-chief, PW.7 has spoken
regarding the examination and treatment of PW.1 to PW.3
and the issuance of Exs.P10 to P12. It is only during his
cross-examination that PW.7 admitted that, on the same
day, he had examined accused Nos.3, 6 and 11 and had
issued wound certificates marked as Exs.D1 to D3. He
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further admitted that Ex. D3 contains the history furnished
by the injured that Nataraj and Ramesha had assaulted
them.
52. Thus, the fact that accused Nos.3, 6 and 11 had
also been medically examined on the very night of the
occurrence and had sustained injuries does not emerge
from the examination-in-chief of the prosecution's medical
witness or from the evidence of PW.1 to PW.3. The said
circumstance comes on record only in the course of cross-
examination of PW.7, conducted by the defence. This
assumes significance because the prosecution case is that
accused Nos.1 to 11 were the aggressors and that they
had formed an unlawful assembly and assaulted PW.1 to
PW.3.
53. Ex.D1 relates to accused No.3-Venkatesh
Gowda. The contemporaneous wound certificate records
tenderness over the right calf. Ex.D2, relating to accused
No.6-Bharath, records an incised wound over the forehead
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and abrasion over the right knee, described as simple in
nature. Ex.D3 relates to accused No.11-Lokesh. The Trial
Court has noticed that these wound certificates record
simple injuries.
54. Subsequently, the defence relied upon Ex.D7,
the admission/discharge record and discharge summary,
in which a fracture of the left tibia of accused No.3 is
referred to. The defence examined DW.1-Dr. G. Nagaraj
and DW.2-Dr. Edward Nazrath. Their evidence was
directed towards establishing the subsequent treatment
and the fracture noticed in the medical records.
55. What is of greater significance is that the
prosecution has not satisfactorily explained the
circumstances in which accused Nos.3, 6 and 11 sustained
those injuries. The investigating agency was aware of the
medical examination of the accused from the inception.
Yet, the prosecution has not brought out through its
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witnesses any satisfactory explanation as to how those
injuries came to be sustained.
56. It is true that non-explanation of injuries on the
accused is not, in every case, by itself sufficient to discard
an otherwise cogent prosecution case. The natures of the
injuries and the quality of the prosecution evidence have
to be considered. Where the evidence is clear, cogent and
wholly reliable, minor injuries on the accused may not
assume decisive significance. However, where the injuries
sustained by the accused have a bearing upon the genesis
of the occurrence and the prosecution version itself is
required to be scrutinised, such omission assumes
importance.
57. The principle laid down by the Supreme Court in
Lakshmi Singh v. State of Bihar , reported in (1976) 4
SCC 394 , is that non-explanation of serious injuries
sustained by an accused at or about the time of the
occurrence may indicate suppression of the genesis and
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origin of the occurrence and may render the defence
version probable, particularly where the prosecution
evidence consists of interested or inimical witnesses.
58. In the present case, the circumstance cannot be
viewed in isolation. The prosecution version is that
accused Nos.1 to 11, who were all present near the house
of accused No.1, formed an unlawful assembly and
attacked PW.1 to PW.3. The contemporaneous medical
material establishes that some of the accused had also
sustained injuries. The prosecution, which was in
possession of such material, was required to place before
the Court the circumstances in which those injuries were
caused.
59. The omission to explain those injuries becomes
particularly significant because the principal witnesses are
admittedly persons who had a prior dispute with the
accused. The Supreme Court in ‘Lakshmi Singh' (supra)
has held that such non-explanation assumes greater
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importance where the prosecution evidence consists of
interested or inimical witnesses or where the defence
version competes in probability with the prosecution
version.
60. The learned Senior Counsel appearing for the
accused is therefore justified in contending that the
complete genesis of the occurrence has not been brought
before the Court. The more appropriate conclusion is that
a material circumstance regarding injuries sustained by
the accused, though within the knowledge of the
investigating agency from the inception, was not brought
out in the examination-in-chief of PW.7 and was elicited
only in cross-examination, and the prosecution has not
satisfactorily explained those injuries. The defence got
examined DW.1 and DW.2 and got marked Ex.D7, the
wound certificate in respect of accused No.7, which shows
he had sustained a grievous injury.
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61. This assumes greater significance because the
defence has placed on record Ex.D4-complaint and Ex.D5-
FIR relating to the counter-case. Ex.D4 is the complaint
lodged by accused No.3 and Ex.D5 is the FIR registered in
Crime No.150/2012. The counter-case therefore cannot be
characterised as a defence version introduced for the first
time during trial.
62. On the point of non-explanation of injuries
sustained by accused the following exposition of law of
Hon’ble Apex Court is relevant.
(a) The Hon’ble Apex Court in Dashrath Singh v.
State of U.P. , reported in (2004) 7 SCC 408, has made
the following pertinent observations:
“19. The injuries of serious nature received by the
accused in the course of the same occurrence would
indicate that there was a fight between both the
parties. In such a situation, the question as to the
genesis of the fight, that is to say, the events
leading to the fight and which party initiated the
first attack assumes great importance in reaching
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the ultimate decision. It is here that the need to
explain the injuries of serious nature received by
the accused in the course of same occurrence
arises. When explanation is given, the correctness
of the explanation is liable to be tested. If there is
an omission to explain, it may lead to the inference
that the prosecution has suppressed some of the
relevant details concerning the incident. The Court
has then to consider whether such omission casts a
reasonable doubt on the entire prosecution story or
it will have any effect on the other reliable evidence
available having bearing on the origin of the
incident. Ultimately, the factum of non-explanation
of injuries is one circumstance which has to be kept
in view while appreciating the evidence of
prosecution witnesses. In case the prosecution
version is sought to be proved by partisan or
interested witnesses, the non-explanation of serious
injuries may prima facie make a dent on the
credibility of their evidence. So also where the
defence version accords with probabilities to such
an extent that it is difficult to predicate which
version is true, then, the factum of non-explanation
of the injuries assumes greater importance. Much
depends on the quality of the evidence adduced by
the prosecution and it is from that angle, the weight
to be attached to the aspect of non-explanation of
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the injuries should be considered. The decisions
above cited would make it clear that there cannot
be a mechanical or isolated approach in examining
the question whether the prosecution case is
vitiated by reason of non-explanation of injuries. In
other words, the non-explanation of injuries of the
accused is one of the factors that could be taken
into account in evaluating the prosecution evidence
and the intrinsic worth of the defence version.”
(b) The Hon’ble Apex Court in Nand Lal and
Others v. State of Chhattisgarh reported in (2023) 10
SCC 470 , it is observed that:
“25. We will first consider the issue with regard to
non-explanation of injuries sustained by Accused 11
Naresh Kumar. In Lakshmi Singh v. State of Bihar
[Lakshmi Singh v. State of Bihar, (1976) 4 SCC 394
: 1976 SCC (Cri) 671] , which case also arose out
of a conviction under Section 302 read with Section
149IPC, this Court had an occasion to consider the
issue of non-explanation of injuries sustained by
the accused. This Court, after referring to the
earlier judgments on the issue, observed thus :
(SCC pp. 401-402, para 12)
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“12. … It seems to us that in a murder case, the
non-explanation of the injuries sustained by the
accused at about the time of the occurrence or in
the course of altercation is a very important
circumstance from which the court can draw the
following inferences:
(1) that the prosecution has suppressed the genesis
and the origin of the occurrence and has thus not
presented the true version;
(2) that the witnesses who have denied the
presence of the injuries on the person of the
accused are lying on a most material point and
therefore their evidence is unreliable;
(3) that in case there is a defence version which
explains the injuries on the person of the accused it
is rendered probable so as to throw doubt on the
prosecution case.
The omission on the part of the prosecution to
explain the injuries on the person of the accused
assumes much greater importance where the
evidence consists of interested or inimical witnesses
or where the defence gives a version which
competes in probability with that of the prosecution
one. In the instant case, when it is held, as it must
be, that the appellant Dasrath Singh received
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serious injuries which have not been explained by
the prosecution, then it will be difficult for the court
to rely on the evidence of PWs 1 to 4 and 6, more
particularly, when some of these witnesses have
lied by stating that they did not see any injuries on
the person of the accused. Thus neither the
Sessions Judge nor the High Court appears to have
given due consideration to this important lacuna or
infirmity appearing in the prosecution case. We
must hasten to add that as held by this Court in
State of Gujarat v. Bai Fatima [State of Gujarat v.
Bai Fatima, (1975) 2 SCC 7 : 1975 SCC (Cri) 384]
there may be cases where the non-explanation of
the injuries by the prosecution may not affect the
prosecution case. This principle would obviously
apply to cases where the injuries sustained by the
accused are minor and superficial or where the
evidence is so clear and cogent, so independent and
disinterested, so probable, consistent and
creditworthy, that it far outweighs the effect of the
omission on the part of the prosecution to explain
the injuries. The present, however, is certainly not
such a case, and the High Court was, therefore, in
error in brushing aside this serious infirmity in the
prosecution case on unconvincing premises.”
26. A similar view with regard to non-explanation of
injuries has been taken by this Court in State of
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Rajasthan v. Madho [State of Rajasthan v. Madho,
1991 Supp (2) SCC 396 : 1991 SCC (Cri) 1048] ,
State of M.P. v. Mishrilal [State of M.P. v. Mishrilal,
(2003) 9 SCC 426 : 2003 SCC (Cri) 1829] and
Nagarathinam v. State [Nagarathinam v. State,
(2006) 9 SCC 57 : (2006) 3 SCC (Cri) 212].
27. Undisputedly, in the present case, the injuries
sustained by Accused 11 Naresh Kumar cannot be
considered to be minor or superficial. The witnesses
are also interested witnesses, inasmuch as they are
close relatives of the deceased. That there was
previous enmity between the two families, on
account of election of sarpanch, has come on
record. As observed by this Court in Ramashish Rai
v. Jagdish Singh [Ramashish Rai v. Jagdish Singh,
(2005) 10 SCC 498 : 2005 SCC (Cri) 1611] ,
previous enmity is a double-edged sword. On one
hand, it can provide motive and on the other hand,
the possibility of false implication cannot be ruled
out.
28. We have already seen hereinabove the injuries
sustained by Accused 11 Naresh Kumar. Much prior
to lodging of the FIR at 3.15 a.m. on 4-11-2006 by
Khomlal, the police had taken Accused 11 Naresh
Kumar for medical examination. The memo
forwarding Accused 11 Naresh Kumar for medical
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examination to medical officer mentions that
Accused 11 had informed the police that at around
8.30 p.m., he was assaulted by Atmaram (PW 1).
Undisputedly, the prosecution has suppressed
information with regard to the said incident. The
prosecution has also suppressed the FIR lodged by
Atmaram (PW 1). It is thus clear that the
prosecution has attempted to suppress the real
genesis of the incident. Taking into consideration
this aspect of the matter, coupled with the non-
explanation of the injuries sustained by Accused 11
Naresh Kumar, we are of the considered view that
Accused 11 Naresh Kumar is entitled to benefit of
doubt.”
(c) The Hon’ble Apex Court in the case of
Kashiram v. State of M.P., (2002) 1 SCC 71, has held
as under:
“20. At the hearing the learned counsel for the
accused-appellants submitted that the factum of
accused Prabhu having sustained serious injuries
including those on vital parts of the body was well
established and the trial court as also the High
Court have not doubted such injuries having been
received by the accused Prabhu in the same
incident in which those on the side of the
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prosecution suffered the injuries and such injuries
of Prabhu having not been explained by the
prosecution witnesses, the prosecution story should
have been discarded and all the accused persons
should have been acquitted. In our opinion such a
submission is too tall a submission and hence
cannot be accepted. In State of U.P. v. Mukunde
Singh [(1994) 2 SCC 191 : 1994 SCC (Cri) 473] it
has been held that merely on the ground that the
prosecution witnesses have not explained the
injuries on the accused, the evidence of the
prosecution witnesses ought not to be rejected
outrightly; if the court finds it probable that the
accused might have acted in exercise of right of
self-defence, the court ought to proceed to consider
whether they have exceeded the same. In Takhaji
Hiraji v. Thakore Kubersing Chamansing [(2001) 6
SCC 145 : 2001 SCC (Cri) 1070] this Court has held
that the court ought to make an effort at searching
out the truth on the material available on record
with a view to find out how much of the prosecution
case was proved beyond reasonable doubt and was
worthy of being accepted as truthful and the
approach of rejecting the prosecution case in its
entirety for non-explanation of the injuries
sustained by the accused persons is erroneous. This
Court further held: (SCC p. 154, para 17)
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“[I]t cannot be held as a matter of law or invariably
a rule that whenever the accused sustained an
injury in the same occurrence, the prosecution is
obliged to explain the injury and on the failure of
the prosecution to do so the prosecution case
should be disbelieved. Before non-explanation of
the injuries on the persons of the accused persons
by the prosecution witnesses may affect the
prosecution case, the court has to be satisfied of
the existence of two conditions: (i) that the injuries
on the person of the accused were of a serious
nature; and (ii) that such injuries must have been
caused at the time of the occurrence in question.
Non-explanation of injuries assumes greater
significance when the evidence consists of
interested or partisan witnesses or where the
defence gives a version which competes in
probability with that of the prosecution.”
26. ……….At least one of the persons of the
prosecution party was armed with a sharp weapon
with which was caused an incised wound on the
head, a vital part of the body, coupled with fracture
of frontal bone of accused Prabhu. One of the
injuries caused to accused Prabhu could have been
the result of a gunshot leaving a pellet embedded
below mandible area. Other injuries caused to him
could not have been self-inflicted. A grievous hurt
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was caused and therefore an apprehension that the
prosecution party would persist in assault which
could have resulted in further grievous hurt or
death being caused was reasonably caused in the
mind of accused Prabhu………”
(d) The Hon’ble Apex Court in the case of State of
Rajasthan v. Shiv Charan reported in (2013) 12 SCC
76, it is held as here under:
24. Non-explanation of serious injuries on the
person of the accused may be fatal to the
prosecution case. But where the injuries sustained
by the accused are minor in nature, even in
absence of proper explanation of prosecution, story
of the prosecution cannot be disbelieved. (Vide
Laxman v. State of Maharashtra [(2012) 11 SCC
158 : (2013) 1 SCC (Cri) 404])
25. This Court considered the issue in Mano Dutt v.
State of U.P. [(2012) 4 SCC 79 : (2012) 2 SCC (Cri)
226] , and held as under : (SCC p. 94, paras 38-
40)
“38. The question, raised before this Court for its
consideration, is with respect to the effect of non-
explanation of injuries sustained by the accused
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persons. In this regard, this Court has taken a
consistent view that the normal rule is that
whenever the accused sustains injury in the
same occurrence in which the complainant
suffered the injury, the prosecution should explain
the injury upon the accused. But, it is not a
rule without exception that if the prosecution
fails to give explanation, the prosecution case must
fail.
39. Before the non-explanation of the injuries on
the person of the accused, by the prosecution
witnesses, may be held to affect the prosecution
case, the Court has to be satisfied of the existence
of two conditions:
(i) that the injuries on the person of the accused
were also of a serious nature; and
(ii) that such injuries must have been caused at the
time of the occurrence in question.
40. Where the evidence is clear, cogent and
creditworthy; and where the court can distinguish
the truth from falsehood, the mere fact that the
injuries on the person of the accused are not
explained by the prosecution cannot, by itself,
be the sole basis to reject the testimony of
the prosecution witnesses and consequently, the
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whole case of the prosecution. Reference in this
regard can be made to Rajender Singh v. State of
Bihar [(2000) 4 SCC 298 : 2000 SCC (Cri) 796] ,
Ram Sunder Yadav v. State of Bihar [(1998) 7 SCC
365 : 1998 SCC (Cri) 1630] and Vijayee Singh v.
State of U.P. [(1990) 3 SCC 190 : 1990 SCC (Cri)
378] ”
In view of the above, we are of the opinion that the
High Court has not considered the issue of non-
explanation of injuries on the person of the accused
in correct perspective.”
63. It is an admitted position that the present case
and Crime No.150/2012 arose out of the same occurrence.
The Trial Court itself noticed that there was a case and
counter-case and that the counter-case was registered on
the complaint of accused No.3.
64. The Full Bench of this Court in State of
Karnataka by Circle Inspector of Police v. Hosakeri
Ningappa reported in ILR 2012 KAR 509 , has laid down
the procedure to be followed in case and counter-case.
The investigation in both cases should ordinarily be
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conducted by the same Investigating Officer; the cases
should be tried by the same Court and decided on the
evidence legally brought on record in each case. The
evidence recorded in one case cannot simply be read into
the other unless it has been legally brought on record.
65. In the present case, admittedly, the case and
counter-case were investigated by different Investigating
Officers. The Trial Court noticed this circumstance but held
that the defect in investigation, by itself, could not be a
ground for acquittal.
66. There can be no quarrel with the general
proposition that every lapse or defect in investigation does
not necessarily result in acquittal. The Court has to
examine whether, notwithstanding the lapse, the
substantive evidence establishes the prosecution case
beyond reasonable doubt. However, the present case is
not founded merely upon a defect in investigation.
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67. Here, the failure to investigate the case and
counter-case through the same Investigating Officer
assumes significance because both sides admittedly
sustained injuries, the accused had been medically
examined on the very night of the occurrence, a counter-
FIR was registered, and the genesis of the occurrence
itself is in dispute. The very purpose of requiring the same
Investigating Officer to investigate both versions is to
enable an impartial assessment of the rival versions and to
ascertain which party was the aggressor.
68. We are not relying upon the evidence recorded
in S.C.No.53/2015 for determining the guilt or otherwise
of the accused in the present case. Such evidence cannot
be imported into the present proceedings merely because
it arises out of the same occurrence. We are only taking
note of the fact of the counter-complaint and counter-FIR,
which are themselves part of the present record through
Exs.D4 and D5.
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69. The Trial Court relied upon the decision in
C. Muniappan v. State of Tamil Nadu reported in
(2010) 9 SCC 567 to observe that defective investigation
by itself is not a ground for acquittal. That proposition is
not in dispute. But the present case does not rest solely
upon a defective investigation. The question is whether
the prosecution has proved its case beyond reasonable
doubt when the defects in investigation are considered
cumulatively with the unexplained injuries on the accused,
the counter-case, the discrepancies in the ocular evidence
and the other circumstances discussed hereinafter.
70. PW.1 is an injured witness and his presence at
the spot is established. According to him, accused No.1
assaulted him with a chopper on the head and accused
No.2 assaulted him with the hind portion of a chopper on
the mouth, resulting in the loss of two teeth. He has
attributed other overt acts to accused Nos.3 and 7 to 10.
PW.2 has also attributed overt acts to several accused.
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The prosecution therefore relies substantially upon the
testimony of these injured witnesses.
71. However, the evidence has to be considered
with reference to the individual roles attributed to the
accused. The prosecution has implicated eleven accused
persons and alleges that all of them were members of one
unlawful assembly sharing a common object. Except for
certain specific overt acts, several allegations are general
in nature. The medical evidence establishes the injuries,
but it does not establish the individual assailant
responsible for each injury.
72. PW.3-Vasanthegowda, another injured witness,
supported the prosecution case in his examination-in-
chief. He stated that he saw accused Nos.1 to 11 at the
spot, armed with clubs and choppers, and attributed
assault upon PW.1 and PW.2. He also stated that when he
tried to pacify the quarrel, somebody assaulted him, but
he could not state who assaulted him.
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73. In cross-examination, PW.3 accepted several
suggestions put to him by the defence. The Trial Court
noticed that he answered several questions in the
affirmative and, inter alia, stated that he had not seen
PW.1 keeping chopper and sickle in the motorcycle. The
answers elicited in his cross-examination cannot be
brushed aside. His evidence has to be appreciated as a
whole. The fact that he could not identify the person who
assaulted him is relevant when the prosecution seeks to
establish the participation of each of the accused in the
alleged unlawful assembly.
74. The prosecution witnesses are also persons who
admittedly had a dispute with the accused relating to the
right of way. The existence of such prior dispute is borne
out from the prosecution case itself. Therefore, while their
relationship to the occurrence and their injuries cannot be
doubted merely on account of the dispute, their testimony
requires careful scrutiny.
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75. The Trial Court treated the discrepancies in the
evidence as minor and attributable to lapse of time.
It observed that the witnesses were examined several
years after the occurrence and that minor discrepancies
were natural. The said principle is well settled. However,
the question before us is not whether every discrepancy
is material. The question is whether the discrepancies
and omissions, when considered along with the
counter-case, the injuries sustained by the accused, the
uncertainty regarding the genesis and the other
circumstances, create a reasonable doubt regarding the
prosecution version.
76. The Trial Court relied upon the grievous injuries
suffered by PW.1, particularly the loss of two teeth and
the depressed fracture, to convict all accused Nos.1 to 11
with the aid of Section 149 of IPC. However, the existence
of grievous injury does not automatically establish the
participation of every accused in the act resulting in
such injury or establish that all the members shared
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the common object of causing grievous hurt. The
prosecution has to establish the unlawful assembly, its
common object and the nexus of each accused with that
assembly. Section 149 cannot be invoked merely because
several persons were present at the spot, considering the
fact that the incident took place near the house of the
accused.
77. The prosecution relies upon Ex.P16 spot
mahazar and the seizure of choppers, clubs, stones, the
damaged motorcycle, blood-stained clothes and the
broken teeth. The material objects were seized from the
spot during investigation.
78. The seizure of material objects may corroborate
the occurrence. However, the material objects have to be
connected with the accused and the alleged acts. In the
present case, the seizure evidence does not satisfactorily
establish the individual connection of a particular weapon
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with a particular accused in such a manner as to remove
the doubt arising from the ocular evidence.
79. The incident is alleged to have occurred at
about 9.00 p.m. PW.14 went to the hospital after receiving
information regarding the injured persons and recorded
the statement of PW.2. PW.10 received the statement at
about 3.00 a.m. on 13.12.2012 and registered the case.
The defence, however, has pointed out that Ex.P18-FIR
reached the jurisdictional Magistrate only at about 3.00
p.m. on 13.12.2012.
80. The delay in transmission of the FIR to the
Court, by itself, cannot be treated as fatal to the
prosecution case. The evidence of PW.14 indicates that the
statement was recorded during the night and the crime
was registered in the early hours. Nevertheless, in a case
where the genesis of the occurrence is itself under scrutiny
and a counter-case had also been registered, the delay
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assumes some significance and requires the evidence to
be scrutinised with greater care.
81. The occurrence admittedly took place near the
house of the accused. The prosecution version is that PW.1
and PW.2 were proceeding on a motorcycle and when they
reached the said place, they were obstructed by the
accused. PW.1 has stated that he saw the accused in the
street light and the headlight of the motorcycle.
82. There is admitted prior dispute between the
parties. There is also a counter-complaint, a counter-FIR
and contemporaneous medical evidence showing injuries
to accused Nos.3, 6 and 11. The fact that the incident took
place near the house of the accused is also not in dispute.
It is not the case of the prosecution that the accused have
gone to the house of the complainant, forming an unlawful
assembly and assaulted PW.1 to PW.3. We are therefore
unable to accept the Trial Court's conclusion that the
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accused were necessarily the aggressors merely on the
basis of the prosecution version.
83. When these circumstances are considered
cumulatively, it would not be safe to sustain the finding
that all the accused shared the common object attributed
to them. The prosecution has to establish the common
object beyond reasonable doubt; it cannot be inferred
merely from the number of persons arraigned as accused.
The learned Senior Counsel has therefore made out a
substantial ground in contending that the Trial Court has
placed undue reliance on the evidence of PW.1 and PW.2
without adequately considering the circumstances which
create doubt regarding the genesis and the participation of
each accused.
84. Accused No.12 was charged under Section 212
of IPC on the allegation that he harboured or concealed
accused Nos.2, 3 and 11. The Trial Court acquitted him
holding that there was no satisfactory evidence to
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establish that he knowingly harboured the accused
persons with an intention to screen them from legal
punishment. It is relevant to notice that the prosecution's
evidence regarding the alleged post-occurrence conduct of
the accused was not found sufficient even by the Trial
Court to establish the charge under Section 212 IPC
against accused No.12. The acquittal of accused No.12
has not been challenged. The findings recorded by the
trial Court, has therefore, attained finality.
85. The learned HCGP placed reliance upon the fact
that PW.1 and PW.2 are injured witnesses and that the
Trial Court, after appreciation of the evidence, found
their testimony reliable. It is true that the evidence of
an injured witness ordinarily deserves due weight. But
the principle does not dispense with the requirement of
testing the testimony against material circumstances.
In the present case, the very genesis of the occurrence
is rendered doubtful by the existence of a
contemporaneous counter-case and the unexplained
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injuries on the accused. The proposition relied upon by the
State, therefore, does not assist the prosecution on the
facts of the present case.
86. The decisions relied upon by the learned
counsel for the appellant in Crl.A.No.2251/2018,
including ‘State of Maharashtra v. Balram Bama Patil’,
‘Jage Ram v. State of Haryana’ and ‘Mallikarjuna Reddy v.
State of Karnataka’ , lay down the general principles
governing Section 307 IPC, particularly that the
intention or knowledge of the accused is to be gathered
from the nature of the weapon, the part of the body
targeted, the force employed and the surrounding
circumstances. Those principles are not in dispute.
However, their application depends upon the facts
established in each case.
87. On a careful and cumulative appreciation of the
evidence, we are of the considered view that the
prosecution has failed to establish beyond reasonable
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doubt that accused Nos.1 to 11 formed an unlawful
assembly sharing the common object alleged by the
prosecution and committed the offences for which they
were convicted.
88. The unexplained injuries sustained by accused
Nos.3, 6 and 11, the fact that their medical examination
emerged only during the cross-examination of PW.7, the
existence of the counter-complaint and counter-FIR, the
evidence of DW.1 and DW.2 and the wound certificate of
accused No.7, marked as Ex.D7, the uncertainty regarding
the genesis of the occurrence, the deficiencies in the
investigation of the case and counter-case, the benefit of
such doubt necessarily has to go to the accused. It is not
necessary for the accused to establish their defence
version beyond reasonable doubt. If the evidence adduced
by the prosecution itself leaves a reasonable doubt
regarding the guilt of the accused, an acquittal must
follow.
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89. For the above discussions and foregoing
reasons, we proceed to pass the following:
ORDER
(i) Crl.A.No.2251/2018 is dismissed .
(ii) Crl.A.No.2086/2018 preferred by accused
Nos.2, 6, 10 and 11 is allowed .
(iii) Crl.A.No.2152/2018 preferred by accused
Nos.1, 3 to 5 and 7 to 9 is allowed .
(iv) The judgment of conviction dated 30.10.2018
and the order of sentence dated 31.10.2018 passed by the
learned Principal District and Sessions Judge,
Chikkamagaluru, in S.C.No.13/2014, insofar as accused
Nos.1 to 11 are concerned, are hereby set aside .
(v) Accused Nos.1 to 11 are acquitted of the
offences punishable under Sections 143, 147, 148, 341,
324 and 326 r/w Section 149 of IPC.
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(vi) The bail bonds, if any, executed by accused
Nos.1 to 11 shall stand cancelled and the sureties, if any,
shall stand discharged.
(vii) The amount, if any, deposited by accused Nos.1
to 11 pursuant to the judgment of the Trial Court shall be
dealt with in accordance with law.
(viii) The acquittal of accused No.12 for the offence
punishable under Section 212 of IPC is left undisturbed.
Sd/-
(MOHAMMAD NAWAZ)
JUDGE
Sd/-
(G BASAVARAJA)
JUDGE
TL
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