C.K. DASEGOWDA vs. STATE OF KARNATAKA

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1381 of 2014 (@ SPECIAL LEAVE PETITION (CRL.)NO.4018 OF 2012) C.K. DASEGOWDA & ORS. .....APPELLANTS VERSUS STATE OF KARNATAKA .....RESPONDENT J U D G M E N T V. GOPALA GOWDA, J. This appeal is filed by the appellants questioning the correctness of the judgment and final order dated 11.08.2010 passed by the High Court of Karnataka at Bangalore in Criminal Appeal JUDGMENT No. 1256 of 2005 in setting aside the order of acquittal of the appellants passed by the trial court thereby imposing sentence of conviction on the accused for offences punishable under Section 324 read with Section 34 of IPC for causing injuries on separate count. Page 1 Crl.A @ SLP (Crl.) No. 4018 of 2012 - 2 - 2. Necessary relevant facts are stated hereunder to appreciate the case of the appellants and also to find out whether they are entitled to the relief as prayed for in this appeal. 3. It is the case of the prosecution that on 11.8.1999, at about 7:00 a.m., PW-3 Kempanna had gone to the house of the complainant on a bicycle to take milk for his children. When the complainant and PW-3 were coming back, accused nos. 1 to 10 (A-1 to A-10) attacked them with deadly weapons. It is alleged by the prosecution that A-1 assaulted PW-3 with iron blade of a plough on his head. A-3 assualted PW-3 on his back and thigh. A-4 assualted PW-3 on both his legs with iron blade of plough. A-2 JUDGMENT assaulted PW-1 with iron rod on his left shoulder. A-6, A-8 and A-10 kicked PW-1. A-5 and A-7 assaulted Bhagyamma- PW-6 with iron blade of plough and A-9 kicked her. 4. A complaint (Ex.-P1) was lodged on 11.8.1999 at 9:00 a.m. before the police. The Crime Case No. CC 728 of 2000 was registered by the Investigating Page 2 Crl.A @ SLP (Crl.) No. 4018 of 2012 - 3 - Officer. The injured were taken to the hospital at around 2:00 p.m. PW-3 had sustained fracture of tibia, fibula and ankle. PW-6 had sustained simple injuries. PW-4 Jalaiah and PW-9- Shivanna are the eye witnesses to the incident. 5. The accused after their arrest, on their voluntary instance, M.O. 1 to M.O. 3 (clubs), M.O. 4 & M.O. 5 (iron blade of plough) and M.O. 6 (iron rod) were recovered. However, the said weapons had no incriminating marks like blood stains on them. The accused were charge-sheeted for committing offences under Sections 143, 147, 148, 323, 324, 326, 307, read with Section 114 of IPC. Thereafter, the learned Magistrate took cognizance of the JUDGMENT alleged offences and registered CC No. 728 of 2000. The learned Magistrate complying with the provisions of Section 209 of CrPC, committed the case to the Sessions Court for trial since offences alleged under Section 307 are to be exclusively tried by that court. The accused persons pleaded not guilty and claimed trial. The prosecution in support of its Page 3 Crl.A @ SLP (Crl.) No. 4018 of 2012 - 4 - case, got examined PW-1 to PW-10 and marked Ex. P-1 to P-9 and MOs. 1 to 6. The accused-appellants got marked Ex. D-1 and had also submitted their written reply while recording their statements under Section 313 of CrPC. 6. In the evidence, PW-1 has stated that A-2 had assaulted him with iron rod, A-5 held him, A-1 assaulted PW-3 with iron rod. He further stated that A-4 assaulted PW-3 on his legs with iron blade of plough. A-3, A-6 and A-7 were holding clubs and assaulting PW-3. A-1 instigated other accused persons to kill PW-1. 7. The evidence of PW-3 also discloses that A-4 JUDGMENT assaulted him with iron blade of plough on his legs and hands. A-6, A-7 and A-5 assaulted him with clubs on his back, thigh and shoulder. The other accused persons kicked him. 8. PW-6 in her evidence, stated that she was assaulted by the accused persons but she could not Page 4 Crl.A @ SLP (Crl.) No. 4018 of 2012 - 5 - name the persons. This witness was treated as hostile. 9. The trial court, on appreciation of the evidence on record has held that the prosecution has failed to prove any of the offences alleged against the accused persons. There is an element of reasonable doubt on many counts, which have already been explained. The benefit of doubt always goes to the accused. Accordingly, the trial court ordered the acquittal of accused-appellant nos. 1 to 10 under Section 235(1) of CrPC for offences punishable under Sections 143, 147, 148, 323, 324, 326, 307 read with Section 114 of IPC. Aggrieved by the same, the State of Karnataka appealed before the High Court JUDGMENT challenging the judgment and order of acquittal passed by the learned trial judge. 10. The High Court, on the basis of facts and evidence on record, held that with regard to the nature of offences, the evidence and facts narrated in the FIR discloses that A-3 assaulted PW-3 with iron blade of plough. In the evidence, it is further Page 5 Crl.A @ SLP (Crl.) No. 4018 of 2012 - 6 - stated that A-4 also assaulted PW-3 with iron blade of plough. But in the wound certificate, there is no mention of presence or participation of A-4. It is evident that there are fractures in the tibia and fibula which could have occurred because of fall from bicycle as well. The fracture injury is not caused intentionally. Therefore, from the nature and manner of assault, as narrated, it can only be said that the accused is guilty under Section 324 read with Section 34 of IPC for causing injuries to PW-1 and PW-3 on separate counts. Therefore, the High Court convicted and sentenced the appellants to pay a fine of 10,000/- each on separate counts and in default, to undergo simple imprisonment for a period JUDGMENT of one year. 11. The accused-appellants challenged the decision of the High Court raising various facts and legal contentions and have prayed for setting aside the impugned judgment of the High Court. 12. The learned senior counsel on behalf of the appellants, Ms. Kiran Suri contended that the High Page 6 Crl.A @ SLP (Crl.) No. 4018 of 2012 - 7 - Court has erred in reversing the Order of the trial court since the trial court had acquitted the accused-appellants only after proper appreciation of the evidence on record and inconsistencies and contradictions found in the evidence of prosecution witnesses and noticing the previous enmity between the parties, delay in recording the statements of the prosecution witnesses and also statement of eye witness, it has held that it creates a reasonable doubt as to the guilt of the accused. 13. The learned senior counsel on behalf of the appellants further contended that conviction of the accused-appellants under Section 324 of IPC read with Section 34 is absolutely arbitrary, JUDGMENT unreasonable and contrary to the above provisions of IPC. 14. It was further contended by the learned senior counsel that there is discrepancy regarding the names of the assailants in the FIR and in the wound certificate and further the motive behind the alleged assault by the accused-appellants has also Page 7 Crl.A @ SLP (Crl.) No. 4018 of 2012 - 8 - not been proved by the prosecution by adducing evidence. 15. On the other hand, the learned counsel on behalf of the respondent contended that PW-1 and PW- 3 are injured eye witnesses. The fact that the accused-appellants had assaulted these persons with iron rod, gula and club is corroborated by the medical evidence of PW-5 and PW-7. It was further argued by the learned counsel that the appellants had assaulted the complainant on account of previous enmity with them. According to the learned counsel for the respondent, PW-2 is an independent witness. Therefore, according to the learned counsel, the ingredients of unlawful assembly, rioting, causing JUDGMENT grievous hurt with dangerous weapons with an intention to kill, have been proved. 16. We have perused the facts and legal evidence on record. We have also carefully appreciated the contentions of both the parties. On the basis of the facts and evidence on record, we are of the opinion that the High Court erred in reversing the Order of Page 8 Crl.A @ SLP (Crl.) No. 4018 of 2012 - 9 - the trial court in the absence of any substantial material evidence on record which regarded the decision of the trial court as perverse. 17. In the case of Chandrappa v. State of 1 Karnataka , it has been held by this Court as under:

12. Doubtless the High Court in appeal either against an order of acquittal or conviction as a court of first appeal has full power to review the evidence to reach its own independent conclusion. However, it will not interfere with an order of acquittal lightly or merely because one other view is possible, because with the passing of an order of acquittal presumption of innocence in favour of the accused gets reinforced and strengthened. The High Court would not be justified to interfere with the order of acquittal merely because it feels that sitting as a trial court it would have proceeded to record a conviction; a duty is cast on the High Court while reversing an order of acquittal to examine and discuss the reasons given by the trial court to acquit the accused and then to dispel those reasons. If the High Court fails to make such an exercise the judgment will suffer from serious infirmity. JUDGMENT

1 (2007) 4 SCC 415 Page 9 Crl.A @ SLP (Crl.) No. 4018 of 2012 - 10 -

JUDGMENT 41. Recently, in Kallu v. State of M.P. , this Court stated; 8. While deciding an appeal against acquittal, the power of the Appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because Page 10 Crl.A @ SLP (Crl.) No. 4018 of 2012 - 11 -

Page 11 Crl.A @ SLP (Crl.) No. 4018 of 2012 - 12 -

Page 12 Crl.A @ SLP (Crl.) No. 4018 of 2012 - 13 - same are in conformity with the legal principles laid down in the aforesaid cases. 19. We therefore, set aside the order of the High Court and reinforce the order of acquittal by the trial court. The appeal is allowed. ……………………………………………………J. [DIPAK MISRA] ……………………………………………………J. [V. GOPALA GOWDA] New Delhi, July 15, 2014 JUDGMENT Page 13