advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Wednesday, March 29, 2017

Latches in Investigation: (i) One of the major lacuna in the case is non- mentioning of the names of A2 & A5 by PW1 to the police at the earliest point of time. The High Court went wrong in observing that this will not amount to latches and it will not go to the root of the matter. These are the glaring defects which will virtually collapse the case of the prosecution. It is no doubt true that the FIR need not be an encyclopedia and also it need not contain all the details but when the names of A2 & A5 were not figured in the FIR it casts a doubt on the whole episode. According to the eyewitnesses, accused had inflicted major injuries and that was the reason for the death of the deceased. It is expected from a prudent man to disclose the names of accused. If the accused cannot be identified or not known to the PWs then it is not a serious thing to dwell upon but these people are very much known to PW1’s family. It therefore creates a serious doubt in the mind of the Court. (ii) The other glaring defect in the investigation is when A1 has sustained injuries and admittedly a complaint was given by his father, a duty is cast upon the prosecution to explain the injuries. The doctor has also categorically deposed about the injuries sustained by A1. These lapses on the part of Investigating Officer assume greater importance and prove to be fatal to the case of the prosecution. When the Investigating Officer deposed before the Court that the complaint given by A5’s father was investigated and he filed ‘B form’ and the case was closed, not marking the document is fatal to the case of prosecution. Investigating Officer further suppressed the fact that there was a direct evidence to seize the gun used by the deceased and register a complaint against the deceased under the relevant provisions of the Arms Act which is evident from the endorsement made on Exhibit P22. (iv) The Investigating Officer himself deposed that he had not seen the MOs and as per the punch witnesses also they were not seized. The Doctor (PW10) deposed that those articles were not placed before her and no opinion was sought. (v) PW2 was also an injured witness. According to the prosecution he was injured on 27-02-1991. But he went to the hospital on 08- 03-91 and the reasons for delay were left unexplained. It is settled law that mere latches on the part of Investigating Officer itself cannot be a ground for acquitting the accused. If that is the basis, then every criminal case will depend upon the will and design of the Investigating Officer. The Courts have to independently deal with the case and should arrive at a just conclusion beyond reasonable doubt basing on the evidence on record. Medical Evidence: When we look at the medical evidence, the Doctor (PW10) has categorically stated that the weapons were not sent to her. In the chief examination, it was stated that the injuries 1 & 4 on the body of the deceased are possible with chopper and club. But in the cross examination it was deposed that even if a person falls on a sharp object these injuries could happen. According to PW3, the deceased fell into the drain. As per the evidence of prosecution witnesses, accused by using the sharp edge of the weapon assaulted on the right side of the forehead but the Doctor’s evidence in this regard is that the deceased has not sustained incised wound on the forehead. PW10 further stated that if a person is assaulted with an object like MO4 it would result in fracture of frontal bone. (ii) The other ground is, when the father of A5 gave a complaint against the deceased’s family as the police filed ‘B form’ the same was closed and not filed before the Court. Apart from that, the direction of the Court to seize the gun of the deceased and file a case under the relevant provisions of the Arms Act was not brought to the notice of the Court. Non explanation of injuries on A5 is another major defect. Once there is a clear contradiction between the medical and the ocular evidence coupled with severe contradictions in the oral evidence, clear latches in investigation, then the benefit of doubt has to go to the accused. Going by the material on record, we disagree with the finding of the High Court that the ocular evidence and the medical evidence are in conformity with the case of prosecution to convict the accused. The High Court has brushed aside the vital defects involved in the prosecution case and in a very unconventional way convicted the accused. The Court should always make an endeavor to find the truth. A criminal offence is not only an offence against an individual but also against the society. There would be failure of justice if innocent man is punished. The Court should be able to perceive both sides i.e. the prosecution as well as the defence and in our considered opinion the judgment of the High Court suffers from several defects as discussed in the preceding paragraphs. Hence we deem it appropriate to set aside the judgment of the High Court and re-affirm the order of acquittal passed by the Trial Court. The accused shall be set at liberty provided they are not required in any other case. Accordingly the appeals are allowed.

                                                                  REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                       CRIMINAL APPEAL NO. 635 OF 2006


KRISHNEGOWDA & ORS.                                ... APPELLANTS

VERSUS

STATE OF KARNATAKA BY ARKALGUD POLICE        ... RESPONDENT

                                    WITH

                      CRIMINAL APPEAL NO. 1067 OF 2006

NANJE GOWDA & ANR.                                 ... APPELLANTS

VERSUS

STATE OF KARNATAKA BY ARKALGUD POLICE        ...RESPONDENT


                                  JUDGMENT


N.V. RAMANA, J.


These two appeals arise out of a common judgment and  order  passed  by  the
Division Bench of the  High  Court  of  Karnataka  in  Criminal  Appeal  No.
763/1999 wherein the High Court has set aside the order of acquittal  passed
by the Trial Court and convicted  the  accused  under  various  sections  of
Indian Penal Code (for short ‘IPC’).

2.          The Criminal Appeal 635/2006 is preferred  by  accused  [A1,  A4
and A10] who were convicted by the High Court  for  the  offence  punishable
under Section 324 read with Section 149, IPC and sentenced them  to  undergo
imprisonment for a period of one year and to  pay  a  fine  of           Rs.
500/-, in default to undergo 2 months further imprisonment. A10 was  further
convicted for the offence under Section 323, IPC  and  imposed  fine  of  Rs
500/- and in default to undergo imprisonment  for  a  further  period  of  2
months.

3.          The Criminal Appeal 1067/2006 is preferred by accused Nos.  2  &
5 who were convicted by the High Court for  the  offences  punishable  under
Section 302 read with 34, IPC and Section 324  read  with  149,  IPC.  Under
Section 302 they were sentenced to undergo  life  imprisonment  and  to  pay
fine of Rs 10,000/-, in default to  undergo  further  imprisonment  for  one
year. Under Section 324  the  punishment  imposed  was  imprisonment  for  a
period of one  year  and  fine  of  Rs  500/-  and  in  default  to  undergo
imprisonment for a further period of 2 months.
4.          Brief facts as unfolded by the prosecution are that  Chennegowda
(deceased), the resident of Mudugere Village, had  12  acres  of  land  near
Masarangala Village out of which  eight  acres  were  consisting  of  coffee
plantation and four acres were wet land. Due to construction of bridge  over
Hemavathi river which caused submersion of some  surrounding  lands  in  the
backwaters, Channegowda and his sons used to pass through the cart track  in
Survey No. 42 and other lands in Survey No.  43  belonging  to  the  accused
persons since they were located between coffee  estate  of  Chennegowda  and
the road to Kendenne village, to have  access  to  his  coffee  estate,  the
deceased could get a road sanctioned from the authorities.  Accused  No.  7,
Rajappa got temporary injunction against that  sanction  which  led  to  the
deceased to move the Court and got the temporary injunction vacated. When  a
Court commissioner inspected the  disputed  lands,  a  quarrel  had  erupted
between the accused and victim parties. The Panchayat settled the  issue  by
directing the deceased to pay Rs.1000/- to the brother of  Accused  No.  13.
Accordingly the payment was made but  the  enmity  between  the  two  groups
continued.

5.          In the backdrop of this  factual  scenario,  on  27th  February,
1991 at about 8 am, when Sannegowda (PW1), Channegowda (PW5) and  Swamygowda
(PW6) - all belonging to victim party, were carrying milk to the  collection
centre of Daarikongalale village, accused Nos. 1 to 7 and  9  to  13  formed
into an unlawful  assembly  and  restrained  Sannegowda  (PW1)  near  Higher
Primary School and assaulted him with clubs and stones.  At  that  point  of
time Channegowda (father of PW1), Mogannagowda  (PW2)  and  Papegowda  (PW3)
came and interfered questioning the accused reasons for  the  assault.  Then
Puttegowda (A5) and Nanjegowda (A2) attacked  Channegowda  (father  of  PW1)
seriously injuring  him  with  chopper  and  club  respectively.  Sannegowda
(PW1), Moganangowda (PW2) and Papaegowda (PW3) were injured at the hands  of
A2 and A3. The injured were shifted to hospital and the  same  was  informed
to police.

6.          The Investigating Officer, Lakshmi Prasad, PSI  (PW19)  recorded
the statement (Ex.P1) of Sannegowda (PW1) and registered  the  case  against
Krishnegowda  (A1)  and  five  others  for  the  offences  punishable  under
Sections 143, 147, 148 and 324 read with Section 149,  IPC.  Meanwhile,  the
seriously injured Channegowda (father of PW1) was treated in  S.C.  Hospital
at Hassan for two days, thereafter he was  shifted  to  NIMHANS,  Bangalore,
from there to  Victoria  Hospital,  Bangalore  and  finally  again  to  S.C.
Hospital at Hassan where on 6th March, 1991 he succumbed  to  the  injuries.
Consequently, charge under Section 302, IPC was added against  the  accused,
inquest report prepared, postmortem conducted, statements of witnesses  have
been recorded and Investigating Officer got  prepared  sketch  of  scene  of
occurrence and seized choppers and clubs from the place  of  occurrence  and
sent it to Forensic Science Laboratory at Bangalore.

7.          The Principal Sessions Judge at Hassan took  cognizance  of  the
offence and framed charges. Before framing  charges,  accused  No.  8  died.
Hence charges were framed against remaining  12  accused  for  the  offences
punishable under Sections 148, 302/149,  324/149  and  323/249  of  IPC.  In
order to bring home the  guilt  of  the  accused,  prosecution  examined  22
witnesses, PWs 1 to 6 and 11 being eyewitnesses, marked  Ext.  P-1  to  P-41
and MOs 1 to 6 were produced at trial. However, in defence  no  witness  was
examined on behalf of the accused.

8.          The Trial Court after a full fledged  trial  has  acquitted  the
accused as the Court came to the conclusion that the prosecution  could  not
prove the guilt of the accused beyond reasonable doubt. The  whole  emphasis
and basis for the Trial Court to  come  to  such  a  conclusion  is  on  the
following:
The evidence of the eyewitnesses is inconsistent and  not  trustworthy.  The
first information report did not contain  the  names  of  accused  and  this
would lead to the inference that the evidence given by PW1 before the  Court
is an obvious improvement.
The evidence of PW2 is that A11 & 12 hit the deceased  with  stones  on  his
chest which is  not  spoken  by  PW1  and  also  not  supported  by  medical
evidence. When there is inconsistency between medical  evidence  and  ocular
evidence, the benefit of doubt should be given to the accused.
The omission on the part of the prosecution to explain the injuries  on  the
person of the accused assumes greater importance. In view  of  the  inherent
improbabilities, the serious  omissions  and  infirmities,  the  prosecution
miserably failed to prove the case.
The police suppressed the factum of the direction given to police  to  seize
the gun held by the deceased and to  include  an  offence  punishable  under
relevant Sections of the Arms Act.
Accused Nos. 7-13 were implicated in the  case  after  06-03-1991  as  their
names do not find place in the first or second FIR.
The prosecution has not stated  PW4  as  witness  and  PW  1  &  2  had  not
mentioned about his presence at the time of occurrence.
The evidence of PW5 is not consistent with other witnesses.
The evidence of the Investigation Officer and PW 1 & 2 with  regard  to  the
arrest is inconsistent with others and appears to be tainted.
The blood found on MO4 is of ‘O’ group and both  the  blood  groups  of  the
deceased and A5 are of same group.
The statement given by PW1 is inconsistent with previous statement  recorded
by police u/sec 171, CrPC.
PW2 who was injured  on  27-02-1991  went  to  hospital  on  08-03-1991  for
examination and treatment which creates an amount of doubt.

      Basing on the above inconsistent  evidence  of  prosecution  witnesses
with that of medical evidence and other probable circumstances, Trial  Court
came to the conclusion that the prosecution could not  prove  the  guilt  of
the accused beyond reasonable doubt  and  therefore  acquitted  the  accused
from the offences charged against them.

      Aggrieved by the judgment passed by the  Trial  Court,  the  State  of
Karnataka carried the matter to the High Court. The Division  Bench  of  the
High Court being conscious of the  powers  of  the  appellate  Court  in  an
appeal  against  acquittal  observed  that,  appellate  Court   should   not
interfere with the order of the acquittal, if the view taken  by  the  Trial
Court is also a reasonable view of the evidence on record and  the  findings
recorded by the Trial Court are not manifestly erroneous,  contrary  to  the
evidence on record or perverse proceedings. The High  Court  went  ahead  to
scrutinize the legality or otherwise of the order of acquittal.

      The High Court has compartmentalized the reasons given  by  the  Trial
Court and thereafter  dislodged  the  same  one  by  one  on  the  following
grounds:
PW1 to PW3 who are sons of deceased consistently deposed about the  injuries
inflicted by A2 & A5 and their evidence  is  consistent  and  unshaken.  The
evidence of PW1 establishes  factum  of  happening  of  the  incident.  Even
though there were contradictions in the evidence of eye  witnesses  it  does
not affect the pith and substance  of  eye  witnesses.  Hence  need  not  be
considered.
Though these witnesses are interested witnesses  they  are  natural  witness
and nothing contra is elicited as such their evidence has to be  taken  into
consideration.
Though the evidence with regard to injuries on the  chest  of  the  deceased
allegedly inflicted by A11 & 12 is contrary to medical evidence,  still  the
reliable testimony of the  eyewitnesses  cannot  be  disregarded  and  these
contradictions will not go to the root of the matter.
The medical evidence  of  PW10  fully  corroborates  with  the  evidence  of
eyewitnesses with regard to the injuries sustained by the  deceased  at  the
hands of A 2 & 5.
The motive for the commission of offence is successfully established.
The investigation by the police is fair and genesis of the incident  is  not
suppressed as everything is in black and white.
The presence of PSI (PW 19) at the place of occurrence before recording  the
complaint (Ex-P1) is not a serious infirmity in the  prosecution  case  when
the evidence of eyewitnesses is straightforward  and  there  is  nothing  to
show that Ex-P1 was concocted.
The other aspects such as initially arresting Sannegowda  and  Mogannagowda,
sons of deceased and later on  transposing  them  as  PWs  1  &  2,  medical
examination of PW 2 taking place on 08-03-1991 when he was injured on 27-02-
1991, the MOs 1, 2 and 4 stained with blood and the blood group of  deceased
and A5 being same ‘O’ group, inconsistency in the evidence of  PW1  relating
to non mentioning of the names of A2 and A5 are not at all  ‘fatal’  to  the
case of the prosecution.
The seizure of weapons from the place of  occurrence  and  later  at  police
station, are not serious defects.
The High Court found only A2 & A5 had common intention in  taking  away  the
life of the deceased and others did not have common intention.
A1 to A5, A9 and A10 have common object of assaulting PW1.  The  High  Court
felt that Trial Court’s view was perverse, erroneous  and  contrary  to  the
evidence available on record, hence it is a fit  case  where  the  appellate
Court has to interfere with the order  of  acquittal  passed  by  the  Trial
Court.

      The High Court found A2 and A5 guilty of committing the offence  under
Section 302/34, IPC and sentenced them to life imprisonment  and  to  pay  a
fine of Rs.10,000/- each, in default, to suffer further imprisonment of  one
year. A1 to A5, A9 and A10 were convicted under  Section  324/149,  IPC  and
sentenced to suffer imprisonment for a period of one year and  to  pay  fine
of Rs.500/-, in default, to  suffer  further  imprisonment  of  two  months.
Whereas A6, A7, A9, A10 and A13 were convicted under Section  323,  IPC  and
they were directed to pay a fine of Rs.500/-,  in  default,  to  suffer  two
months  imprisonment.  The  substantive  sentences  were  directed  to   run
concurrently.

      That is how A 1, 3, 4 and 9 are before this Court by  way  of  special
leave petition. On 11th May, 2006 this Court granted leave to  accused  Nos.
1, 3 and 4 making them appellants in Criminal Appeal No. 635  of  2006.  The
Court however dismissed the S.L.P. of accused No. 9, Ramesha, as he has  not
surrendered. Accused Nos. 2 and 5 have preferred Criminal  Appeal  No.  1067
of 2006 challenging the order of the High Court.


      We have heard the  learned  counsels  appearing  on  either  side  and
perused the material available on record.


      Learned counsel appearing for the appellant  has  submitted  that  the
Court below has failed to appreciate the case and counter  case.  There  are
several contradictions in the evidence of prosecution witnesses  on  several
material aspects and the same goes to the root of the matter.  It  is  urged
that the medical evidence is not in consonance  with  the  ocular  evidence.
The prosecution witness has concealed the genesis of the  incident  and  did
not place the true facts before the Court.  Because  the  prosecution  party
was politically influential, the complaint lodged by the father  of  A5  was
not investigated properly by the police. Even the injuries on  A5  were  not
properly explained and these are latches on the part  of  investigation  and
fatal to the case of prosecution. In support  of  the  same  senior  counsel
relied on the judgment of Takhaji Hiraji  V. Thakore Kubersing Chamansing  &
ors, (2001) 6 SCC 45 and also placed reliance on State of  MP  V.  Mishrilal
(dead) & Ors., (2003) 9 SCC 426. Non- mentioning of the names of A2 & A5  at
the earliest point of time is lapse on the part  of  investigation  and  the
High Court committed a serious error of law  in  not  taking  these  factors
into consideration. The learned senior counsel finally  submitted  that  the
High Court based its conclusion by ignoring  several  material  factors  and
hence the impugned judgment needs to be set aside.
      Learned  counsel  appearing  for  the  State  supported  the  impugned
judgment.

      Now the issue that falls for consideration before us  is  whether  the
High Court was justified in reversing the order of acquittal passed  by  the
Trial Court.

      In view of the voluminous evidence placed on record and the  divergent
views taken by the  Courts  below,  it  has  become  imperative  for  us  to
evaluate the material on record in detail to  come  to  a  just  conclusion.
First and foremost we would like to analyze the  oral  evidence  adduced  by
the prosecution in support of its case.

Oral Evidence: (i) PWs 1 to 3 are sons of the deceased. As rightly  observed
by the High Court their evidence is consistent  about  one  aspect  that  is
with regard to the injuries sustained  by  the  deceased  at  the  hands  of
accused, but the evidence on record makes it clear that  there  are  several
contradictions in the evidence of the witnesses which creates doubt  in  the
mind of the Court as rightly observed by the Trial Court.

      (ii) According  to  PW1  on  27-02-1991  he  took  milk  to  the  milk
collection centre at Parikongalale Village along with PW5  &  PW6  at  07:30
a.m. At that time A1, A3, A5, A6 held him and assaulted him with  clubs  and
stones and fisted him. Then he has narrated how A1, A2, A3 and A4  assaulted
him. Then the deceased, PW2 & PW3 came to the place of occurrence and  asked
him why they are assaulting PW1.  A5  &  A2  with  chopper  and  club  again
assaulted their father and he fell down and  became  unconscious.  Then  PW6
carried his father to the veranda of the school and  laid  him  down.  After
that again A2, A3, A10 assaulted his brother. At that time  police  came  to
the scene of offence at 10 a.m. and shifted the  deceased  and  PW1  to  the
hospital and then he wrote a complaint and gave it  to  the  police.  Police
recorded the statement and it is attested by him.

(iii) Again at the time  of  inquest  his  statement  was  recorded  by  the
police.  Then  in  the  cross  examination  PW1  has  deposed  altogether  a
different version with regard to the injuries inflicted by  the  accused  on
him and PWs 2 & 3 and added A5 & A10 for the first time.  It  is  stated  by
him that his statement was recorded by police at 12 pm and he has not  given
any complaint in writing. He further states that he has not given the  names
of accused to the police. He denied the  fact  that  father  of  A5  gave  a
complaint to the police against their family at 10  a.m  on  27-02-1991  and
police seized the gun. Then for the first time he stated the  names  of  the
accused who assaulted at the time of inquest.

(iv) A close look at the evidence of PW2 reveals that according to him  they
reached the scene of offence along with deceased at 9 a.m. A1-7 and  A  9-13
were present there by the time they reached  the  place.  His  evidence  was
consistent with regard to injuries inflicted by A2 and A5  but  stated  that
A11 and A12  inflicted  injuries  on  the  deceased  with  stones  which  is
contrary to the medical evidence. He stated that the weapons were  recovered
from the drain. According to PW1 he left the place at 07:30.  As  per  PW2’s
version, PW1 left the place at 06:30 and PW3 gave a different  version  with
regard to reaching the place. According to him they  reached  the  place  at
07:30 or 08:00 a.m and very interestingly he deposed that  his  father  fell
into the drain and later he was lifted  from  there  and  laid  him  in  the
school veranda.

(v) Later police reached the place of occurrence at 09:00  a.m.  and  Police
have arrested PWs 2 & 3 and released them at 05:00 p.m. He has  specifically
stated that police have not seized and sealed the chopper marked  as  MO  4.
According to PW3, when they  reached  the  place  of  occurrence,  only  4-5
persons were there. According to PW2 all accused persons  were  present  and
even with regard to injuries also  he  took  a  contra  stand.  As  per  his
version the whole incident has taken  place  for  15  minutes  i.e.  between
08:30-08:45 a.m. PW4 was not cited as  a  witness  but  was  examined  as  a
witness. Whereas PW5 gave altogether a different version. According to  him,
incident took place at 07:00 a.m.  and  A6  &  A2  were  standing  near  the
culvert. He released PW1 from clutches of the  accused.  According  to  him,
police came at 09:00 a.m. This aspect was  also  not  deposed  by  PW1.  PW6
states that A6 holding PW1’s collar which  was  also  not  deposed  by  PW1.
According to him, he has attended the seizure mahazar but the MOs  were  not
shown to him nor, any seal was affixed on them at the time of seizure.

(vi) The next important evidence is that of Doctor i.e. PW10.  According  to
PW10 the weapons were not sent  to  him  for  opinion.  PW10  in  his  cross
examination has categorically deposed that the injuries 1 & 4  are  possible
if a person were to fall on the curve stone of a drain.

(vii) PWs 13 and 15 are the Head Constables and PW 19 is  the  Inspector  of
Police (I.O.). According to PW13, SI has registered the complaint  at  11:30
a.m. and 2nd FIR was registered altering the Sections  on  06-03-1991.  PW15
deposed that ‘galata’ was informed to them at 09:15 am and they reached  the
scene of offence at 10 a.m. PW1 had not sustained any visible injuries.  PW1
took the SI near to the drain. In the cross  examination  he  said  that  at
08:00 a.m. ‘galata’ took place and he does not know how they  came  to  know
about the information.   When  they  reached  the  scene  of  offence  50-60
persons were present there. SI (PW19) reached the  place  of  occurrence  at
10:15 am and enquired PW1 and others. The evidence of PW19 in the  chief  is
that at 08:00 a.m. he came to know about the incident, went to the scene  of
occurrence along with PWs 15 & 18. Chopper, stones,  club  were  lying  near
the place. By the time they reached the  place  at  08:15  a.m.,  10  to  15
persons were present. He has not made any enquiry and, he has  recorded  Ex.
PI in police station at 10:30 a.m. on the  same  day.  He  returned  to  the
police station at 09:45 a.m. It is  specifically  stated  that  he  has  not
arrested PWs 1, 2 & 3 and has not produced sample seal.

      Having gone through the evidence of the prosecution witnesses and  the
findings recorded by the High Court we feel that the High Court  has  failed
to understand the fact that the guilt  of  the  accused  has  to  be  proved
beyond reasonable doubt and this is a classic case where at each  and  every
stage of the trial, there were lapses on the part  of  investigating  agency
and the evidence of the witnesses is not trustworthy which can  never  be  a
basis for conviction. The basic principle of criminal jurisprudence is  that
the accused is presumed to be innocent until  his  guilt  is  proved  beyond
reasonable doubt.

      Generally in the criminal cases,  discrepancies  in  the  evidence  of
witness is bound to happen because there would be considerable  gap  between
the date of incident and the time of deposing  evidence  before  the  Court,
but if these contradictions create such serious doubt in  the  mind  of  the
Court about the truthfulness of the witnesses and it appears  to  the  Court
that there is clear improvement, then  it  is  not  safe  to  rely  on  such
evidence.

      In the case on hand, the evidence of eyewitnesses is  only  consistent
on the aspect of injuries  inflicted  on  the  deceased  but  on  all  other
factors there are lot of contradictions which go to the root of the  matter.



      Even with regard to seizure of weapons it was observed  by  the  Trial
Court that at one breath it was stated that the MOs  were  seized  from  the
scene of offence and another version was they  were  seized  in  the  police
station and consistently it was stated that the MOs were not sealed and  the
Doctor observed that those were not  sent  to  her  for  opinion.  Then  the
immediate question which comes to the mind of a prudent  person  is  whether
the MOs which are before the Court were the ones seized from  the  scene  of
offence. Hence an adverse inference has  to  be  drawn  on  the  prosecution
case. The witnesses gave different versions on how the weapons were  seized.
Some of them indicated that they were in the drain and some other  witnesses
said that they were lying on the ground at  the  place  of  occurrence.  The
High Court was correct so far as not attributing importance to the  injuries
inflicted by A 11 and 12 as it did not go to the root of the matter.

      In the evidence of the prosecution witnesses in respect of exact  time
when the incident had happened, who were the people present at the scene  of
offence, the time  of  police  reaching  the  scene  of  offence,  place  of
registering the complaint, there were lot of variations.  According  to  PW1
the complaint was recorded at hospital at 12 p.m. whereas the  Investigating
Officer deposed that he registered  the  complaint  at  10:30  a.m.  at  the
police station. PWs  1-3  say  that  they  were  arrested  by  Investigating
Officer but the  I.O.  gave  a  contradictory  statement  that  he  has  not
arrested them. PW1 initially gave a statement before the police  saying  A1,
A5, A3, A4 had not assaulted him. Later he gave  a  contradictory  statement
which is marked as Exhibit D1.

      The eyewitnesses have not mentioned the names of accused 7  to  13  in
any of the FIR  and  subsequent  addition  of  their  names  after  06-03-91
clearly demonstrates that it was an afterthought, only to implicate them.

25.         It is to be noted that all the eyewitnesses were  relatives  and
the prosecution failed to adduce reliable evidence of independent  witnesses
for the incident which took place on a public road in the broad  day  light.
Although there is no absolute rule that the evidence  of  related  witnesses
has to be corroborated by the evidence of independent  witnesses,  it  would
be trite in law to have independent witnesses when the evidence  of  related
eyewitnesses is found to  be  incredible  and  not  trustworthy.  The  minor
variations and contradictions in the evidence of eyewitnesses will not  tilt
the benefit of doubt in favor of the accused but when the contradictions  in
the evidence of prosecution witnesses proves to be fatal to the  prosecution
case then those contradictions go to the root of  the  matter  and  in  such
cases accused gets the benefit of doubt.

      It is the duty  of  the  Court  to  consider  the  trustworthiness  of
evidence on record. As said by Benthem, “witnesses are the eyes and ears  of
justice”. In the  facts  on  hand,  we  feel  that  the  evidence  of  these
witnesses  is  filled  with  discrepancies,  contradictions  and  improbable
versions which draws us to the irresistible conclusion that the evidence  of
these witnesses cannot be a basis to convict the accused.

Latches in Investigation: (i) One of the major lacuna in the  case  is  non-
mentioning of the names of A2 & A5 by PW1 to  the  police  at  the  earliest
point of time. The High Court went wrong in observing  that  this  will  not
amount to latches and it will not go to the root of the  matter.  These  are
the  glaring  defects  which  will  virtually  collapse  the  case  of   the
prosecution. It is no doubt true that the FIR need not  be  an  encyclopedia
and also it need not contain all the details but when the names of A2  &  A5
were not figured in  the  FIR  it  casts  a  doubt  on  the  whole  episode.
According to the eyewitnesses, accused  had  inflicted  major  injuries  and
that was the reason for the death of the deceased. It  is  expected  from  a
prudent man to disclose the names of  accused.  If  the  accused  cannot  be
identified or not known to the PWs then it is not a serious thing  to  dwell
upon but these people are very much known  to  PW1’s  family.  It  therefore
creates a serious doubt in the mind of the Court.

(ii) The other glaring defect in the investigation is when A1 has  sustained
injuries and admittedly a complaint was given by his father, a duty is  cast
upon  the  prosecution  to  explain  the  injuries.  The  doctor  has   also
categorically deposed about the injuries sustained by A1.  These  lapses  on
the part of Investigating Officer assume greater importance and prove to  be
fatal to the  case  of  the  prosecution.  When  the  Investigating  Officer
deposed before the Court  that  the  complaint  given  by  A5’s  father  was
investigated and he filed ‘B form’ and the case was closed, not marking  the
document is fatal to the case of prosecution. Investigating Officer  further
suppressed the fact that there was a direct evidence to seize the  gun  used
by the deceased and register a complaint  against  the  deceased  under  the
relevant provisions of the Arms Act which is evident  from  the  endorsement
made on Exhibit P22.

            (iv) The Investigating Officer himself deposed that he  had  not
seen the MOs and as per the punch  witnesses  also  they  were  not  seized.
 The Doctor (PW10) deposed that those articles were not  placed  before  her
and no opinion was sought.

             (v)  PW2  was  also  an  injured  witness.  According  to   the
prosecution he was injured on 27-02-1991. But he went to the hospital on 08-
03-91 and the reasons for delay were left unexplained.

      It is settled law that mere  latches  on  the  part  of  Investigating
Officer itself cannot be a ground for acquitting the  accused.  If  that  is
the basis, then every criminal case will depend upon the will and design  of
the Investigating Officer. The Courts have to independently  deal  with  the
case and should arrive at a just conclusion beyond reasonable  doubt  basing
on the evidence on record.

Medical Evidence:  When we look at the medical evidence, the  Doctor  (PW10)
has categorically stated that the weapons were  not  sent  to  her.  In  the
chief examination, it was stated that the injuries 1 & 4 on the body of  the
deceased are possible with chopper and club. But in  the  cross  examination
it was deposed that even if a person falls on a sharp object these  injuries
could happen. According to PW3, the deceased fell into the drain.

As per the evidence of prosecution witnesses, accused  by  using  the  sharp
edge of the weapon assaulted on the right  side  of  the  forehead  but  the
Doctor’s evidence in this regard is that  the  deceased  has  not  sustained
incised wound on the forehead. PW10 further  stated  that  if  a  person  is
assaulted with an object like MO4 it would result  in  fracture  of  frontal
bone.

      (ii) The other ground is, when the  father  of  A5  gave  a  complaint
against the deceased’s family as the police filed  ‘B  form’  the  same  was
closed and not filed before the Court. Apart from  that,  the  direction  of
the Court to seize the gun of  the  deceased  and  file  a  case  under  the
relevant provisions of the Arms Act was not brought to  the  notice  of  the
Court. Non explanation of injuries on A5 is another major defect.

      Once there is a  clear  contradiction  between  the  medical  and  the
ocular evidence coupled with severe contradictions  in  the  oral  evidence,
clear latches in investigation, then the benefit of doubt has to go  to  the
accused.

      Going by the material on record, we disagree with the finding  of  the
High Court that  the  ocular  evidence  and  the  medical  evidence  are  in
conformity with the case of prosecution to convict  the  accused.  The  High
Court has brushed aside the vital defects involved in the  prosecution  case
and in a very unconventional way convicted the accused.

      The Court should  always  make  an  endeavor  to  find  the  truth.  A
criminal offence is not only an  offence  against  an  individual  but  also
against the society.  There would be failure of justice if innocent  man  is
punished. The  Court  should  be  able  to  perceive  both  sides  i.e.  the
prosecution as well as  the  defence  and  in  our  considered  opinion  the
judgment of the High Court suffers from several defects as discussed in  the
preceding paragraphs.

      Hence we deem it appropriate to set aside the  judgment  of  the  High
Court and re-affirm the order of acquittal passed by the  Trial  Court.  The
accused shall be set at liberty provided they are not required in any  other
case. Accordingly the appeals are allowed.



                                         ..................................J
                                                              (N. V. Ramana)



                                          .................................J
                                                          (Prafulla C. Pant)


New Delhi
Dated:  March 28, 2017

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.