Dismissed

State of Karnataka v. Mahaboobsab Subhansab Onti

Karnataka HC7 Jan 2021CRL.A/100115/2014

Case brief

AI extract

What is this about?

State challenged acquittal of six accused in criminal appeal. High Court upheld appellate court's view that prosecution case suffered from material omissions regarding wounds, inconsistencies in overt acts, and prior litigation with complainant justifying benefit of doubt.

What did the court decide?

Appeal dismissed; conviction set aside by appellate court affirmed; accused acquitted.

State of Karnataka Vs Mahaboobsab Subhansab Onti — Criminal Trial and Appeal | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 07^th DAY OF JANUARY 2021

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BEFORE

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THE HON’BLE MR.JUSTICE RAVI V.HOSMANI

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CRIMINAL APPEAL No.100115 OF 2014

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BETWEEN:

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STATE OF KARNATAKA REPRESENTED BY THE POLICE SUB-INSPECTOR, GADAG, THROUGH THE ADDL. STATE PUBLIC PROSECUTOR, ADVOCATE GENERAL OFFICE, HIGH COURT BUILDING, DHARWAD.

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...APPELLANT

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(BY SRI.V.M.BANAKAR, ADDL S.P.P.)

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AND:

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MAHABOOBSAB SUBHANSAB ONTI AGE: 36 YEARS,

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OCC: AGRICULTURE,

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MAHABOOBSAB ISMILSAB MALIKOPPA AGE: 34 YEARS, OCC: AGRICULTURE,

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MODIN BEE W/O MABUSAB PAYAPPANAVAR

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AGE: 43 YEARS, OCC: HOUSEHOLD WORK,

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BUJAN BEE W/O MOULASAB GANGAVATI AGE: 39 YEARS, OCC: HOUSEHOLD WORK,

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SULEMAN @ DAVALSAB S/O MODINSAB JIGARI @ ANNIGERI AGE: 56 YEARS, OCC: AGRICULTURE

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SALEEM S/O DAVALSAB BANDI AGE: 30 YEARS, AGRICULTURE,

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ALL ARE R/O.HARIPUR, TALUK SHIRAHATTI

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...RESPONDENTS

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(BY SRI D.L.LADKHAN AND SRI ASHOK T.KATTIMANI, ADVOCATES)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (1) AND (3) OF CR.P.C. SEEKING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 12.02.2014 PASSED IN CRL.A.NO.8/2013 BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, GADAG AND BE SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL AND CONFIRM THE JUDGMENT AND ORDER PASSED BY THE TRIAL COURT IN C.C.NO.71/2009 DATED 04.01.2012.

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THIS APPEAL BEING RESERVED FOR JUDGMENT ON 26.11.2020, THIS DAY, THE COURT, DELIVERED THE FOLLOWING:

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JUDGMENT

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Challenging the judgment dated 12.02.2014 passed by the Principal District and Sessions Judge, Gadag in Criminal Appeal No.8/2013 acquitting accused Nos.2, 4, 6, 7, 10 and 11 of the offences punishable under Section 143, 147, 323, 324, 504, 506 read with Section 149 of the Indian Penal Code (for short ‘IPC’), the State has filed this appeal.

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Brief facts leading to the case are that a complaint was filed by one Rajashekhar Veerappa Desaipatti stating that during lifetime of his father, Subansab Mabusab Onti offered to sell land bearing R.Sy.No.246/1 measuring 4 acres 1 guntas and in terms of an agreement for sale handed over possession of land on 26.04.1984 which continued with complainant. That on 06.07.2008 at about 10.30 a.m. when complainant went to his land, he saw Subhansab and his relatives tilling it. He objected on the ground that court case was pending, and requested them not to cultivate. At that time, (1)

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Subhansab Mabusab Onti, (2) Mabusab Subhansab Onti, (3) Dadibi Subansab Onti, (4) Babusab Ismailsab Mulekoppa, (5) Nannubi wife of Allisab Sanadi, (6) Modinbi wife of Mabusab Payappanavar, (7) Bujanbi wife of Moulasab Gangavathi, (8) Hussainbi wife of Aminsab Mulekoppa, (9) Raina wife of Mabusab Onti, (10) Davalsab Modinbi Gigari, (11) Salim Davalsab Onti, formed an unlawful assembly, abused and assaulted the complainant. When his wife, brother and daughter-in-law came to his rescue, his wife Yogita was assaulted by Modinbi, Bujanbi and Salim Onti with their hands and she was dragged around. Salim hit Yogita with a stone, on her hand. Gururaj was also assaulted. When they cried in pain, one Gangappa Ishwarappa Baligeri and Geddappa Fakirappa Itagi came and rescued them. While going back, accused threatened to do away with their life some other time as they were saved on that day.

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The complaint was given on 06.07.2008 at 20:20 hours. Immediately Crime No.103/2008 was

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registered at Police Station, Shirahatti and it was made

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over to the court of jurisdictional Magistrate. After investigation, charge sheet was filed in C.C.No.71/2009 against accused Nos.1 to 11, for offences punishable under Section 143, 147, 323, 324, 504, 506 read with Section 149 of IPC.

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Upon appearance, and being read over the charges, accused pleaded not guilty and sought trial. In support of the charges, prosecution examined nine witnesses as PW1 to PW9 and marked four documents as Exs.P1 to P4. Thereafter incriminating material was explained to accused, who denied everything without offering any explanation. Their statement under Section 313 was recorded. No defence evidence was led.

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Based on the material available, trial court framed following points for consideration:

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1. Whether the prosecution proves beyond all reasonable doubt that on 06.07.2008 at about 10.00 a.m. in the land R.S.No.246 at Haripur

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village which is situated within the limits of Shirahatti Police Station, all the accused with an unlawful assembly with a common object, picked up quarrel with first informant & thereby committed an offence punishable U/Sec. 143 r/w 149 of IPC?

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2. Further, whether the prosecution proves beyond all reasonable doubt that on the same date, time and place, all the accused with an unlawful assembly with a common object picked up quarrel with first informant by using force and thereby committed an offence punishable U/Sec. 147 r/w 149 of IPC?

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3. Further, whether the prosecution proves beyond all reasonable doubt that on the same date, time and place, all the accused with an unlawful assembly with a common object picked up quarrel with first informant and assaulted with hands to him and C.W.1, 4, 5 and voluntarily caused hurt to them and thereby committed an offence punishable U/Sec.323 r/w. 149 of IPC?

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4. Further, whether the prosecution proves beyond all reasonable doubt that on the same date, time and place, all the accused with an unlawful assembly with a common object picked up quarrel with first informant and C.W.1, 4, 5

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& 6 and assaulted with hands and stones and thereby committed an offence punishable U/Sec. 324 r/w 149 of IPC?

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5. Further, whether the prosecution proves beyond all reasonable doubt that on the same date, time and place, all the accused with an unlawful assembly with a common object picked up quarrel with first informant and C.W.1, 4, 5 & 6 and abused in filthy language knowing fully well that such an abusement will break the public peace or commit any other type of offence and thereby committed an offence punishable U/Sec. 504 r/w. 149 of IPC?

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6. Further, whether the prosecution proves beyond all reasonable doubt that on the same date, time and place, all the accused with an unlawful assembly with a common object picked up quarrel with first informant and C.W.1, 4, 5 & 6 and posed life threat to them and thereby committed an offence punishable U/Sec. 506 r/w. 149 of IPC?

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7. What order?

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6. After answering Point Nos.1 to 6 partly in

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affirmative only in respect of accused Nos.2, 4, 6, 7, 10 and 11, proceeded to acquit accused Nos.1, 3, 5, 8 & 9.

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But accused Nos.2, 4, 6, 7, 10 & 11 were convicted and imposed sentence as follows:

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Accused No.2, 4, 6, 7, 10 and 11 are sentenced to undergo simple imprisonment for six months for the offence punishable u/sec. 143 r/w. 149 of IPC and directed to pay fine of Rs.500/- each in default to undergo simple imprisonment for 45 days.

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Accused No.2, 4, 6, 7, 10 and 11 are sentenced to undergo simple imprisonment 1 year for the offence punishable u/sec. 147 r/w. 149 of IPC and directed to pay fine of Rs.1,000/each in default to undergo simple imprisonment for 3 months.

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Accused No.2, 4, 6, 7, 10 and 11 are sentenced to undergo simple imprisonment for 6 months for the offence punishable u/sec. 323 r/w 149 of IPC and directed to pay fine of Rs.500/each in default to undergo simple imprisonment for 45 days.

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Accused No.2, 4, 6, 7, 10 and 11 are sentenced to undergo simple imprisonment for 2 years for the offence punishable u/Sec. 324 r/w. 149 of IPC and directed to pay fine of Rs.2,000/-

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each in default to undergo simple imprisonment for 6 months.

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Accused No.2, 4, 6, 7, 10 and 11 are sentenced to undergo simple imprisonment for 1 year for the offence punishable u/sec. 504 r/w. 149 of IPC and directed to pay fine of Rs.1,000/each in default to undergo simple imprisonment for 3 months.

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Accused No.2, 4, 6, 7, 10 and 11 are sentenced to undergo simple imprisonment for 1 year for the offence punishable u/sec. 506 r/w 149 of IPC and directed to pay fine of Rs.1,000/each in default to undergo simple imprisonment for 3 months.

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Acting u/sec. 357 of Cr.P.C., it is also directed that out of fine amount of Rs.36,000/Rs.8,000/- shall be given to P.W.1, 3, 4 and 5 as compensation.

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Office is directed to furnish free certified copy of this judgment to accused No.2, 4, 6, 7, 10 and 11 in compliance of sec. 363(1) Cr.P.C.

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Challenging their conviction, accused nos.2, 4, 6, 7, 10 and 11 filed appeal before the Principal District

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and Sessions Judge, Gadag in Criminal Appeal No.8/2013.

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After hearing arguments and perusing the material on record, appellate court framed following points for its consideration.

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1. Whether the court below committed an error in accepting the evidence of PW1, 3, 5 and 6 to base conviction?

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2. Whether the conviction order is sustainable?

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3. What order?

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After answering Point No.1 in the affirmative, Point No.2 in the negative, the appellate court proceeded to set aside conviction and acquitted the appellants. Challenging their acquittal by the appellate court, the State is in appeal.

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Sri V.M.Banakar, learned Addl.State Public Prosecutor (ASPP) for appellant-State submitted that impugned judgment passed by appellate court was wholly unsustainable, there was no proper appreciation of the evidence and material on record and the conclusions arrived were arbitrary. It was submitted that the material witnesses namely PWs1, 3 to 5 are the injured

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eyewitnesses and PW1 is complainant. They duly supported prosecution case. Their evidence is duly corroborated by evidence of PW8-Doctor, who treated them immediately after the incident and issued wound certificates as per Exs.P5 to P8. The prosecution is also supported by evidence of PW9, the Investigating Officer (IO).

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Learned ASPP further submitted that appellate court without proper justification disbelieved evidence of injured eyewitnesses and by taking note of minor omissions concluded that version of prosecution witnesses as too artificial. One of the reasons assigned by appellate court is that neither the owners of neighbouring lands nor inmates of inspection bungalow or girls’ hostel located nearby came to spot to rescue complainant. Hence, it concluded that evidence led by prosecution was not trustworthy. It was further submitted that though full particulars of counter case were not available on record,

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appellate court concluded that this was an instance of case and counter case and acquitted the accused.

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It was further urged that, appellate court also laid emphasis on omission of prosecution to explain contradiction with regard to registration of medico legal case (MLC) and sending of intimation to police by doctorPW8, though it was not a material omission/ contradiction. Even the reasoning assigned by appellate court regarding delay in filing complaint was also not material, as complaint was lodged on same day of assault after complainant and his family members who were injured, took treatment. Even delay of about ten hours in filing complaint was not exorbitant or without any proper explanation and therefore was not fatal. On the said grounds, sought for setting aside acquittal of accused Nos.2, 4, 6, 7, 10 & 11.

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On the other hand, learned counsel Sri D.L.Ladkhan and Sri Ashok T.Kattimani, for respondentaccused submitted that entire prosecution case was

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riddled with omissions and contradictions, therefore extension of benefit of doubt to accused by appellate court was justified. There were several unexplained glaring and material contradictions and omissions in the prosecution case which rightly led appellate court to disbelieve prosecution witnesses. It was submitted that except family members of complainant, absolutely no other independent witness/eyewitness were examined despite P.W.7 admitting presence of other people at the time of incident. It was further argued that, admission of counter case by the I.O. also was one of the important circumstances that led appellate court to favour the accused with acquittal and the same did not call for any interference.

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Heard learned counsel, perused the impugned judgment and record.

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From the above, it is seen that the occurrence of the incident on 06.07.2008 is not disputed by the accused as the accused do not deny it but they are

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harping upon omissions and contradictions in prosecution case. However, accused dispute specific overt-acts attributable to them individually and denied the same constituting any of the offences.

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In order to establish the offences alleged against accused, prosecution is required to establish the following ingredients:

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(A) Essential Ingredients constituting an offence punishable U/sec. 323 of IPC are as under:

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(i) That the accused caused hurt to another person;

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(ii) That he caused such hurt voluntarily;

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(iii) That such a case was not covered under Section 334 I.P.C.

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(B) Essential Ingredients constituting an offence punishable U/sec. 324 of IPC are as under:

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(i) That the accused voluntarily caused hurt to another person.

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(ii) That such a hurt was in exception to cases provided under Section 334.

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(iii) That such hurt was caused.

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(C) Essential Ingredients constituting an offence punishable U/sec. 504 of IPC are as under:

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(i) Intentionally insulting a person and thereby giving provocation to him;

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(ii) The person insulting must intend or know it to be likely that such provocation will cause him to break the public peace or to commit any other offence.

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(D) Essential Ingredients constituting an offence punishable U/sec. 506 of IPC are as under:

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1. Threatening a person with any injury;

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(i) to his person, reputation or property, or

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(ii) to the person, or reputation of any one in whom that person is interested.

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2. That threat must be with intent;

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(i) to cause alarm to that person; or

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(ii) to cause that person to do any act which he is not legally bound to do as the means of avoiding the execution of such threat; or

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(iii) to cause that person to omit to do any act which that person is legally entitled to do as the means of avoiding the execution of such threat.

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PW1 is the injured eyewitness & complainant. In his examination-in-chief, he reiterated the complaint averments. PW1 stated that PW4 was verbally abused and assaulted by accused Nos.6, 7 and 11. Accused No.11 hit her with stone on chest. As his wife was in pain, she was taken to hospital. PW3 and PW5 were also assaulted and abused. At that time, PW6 and PW7 came and stopped the quarrel. However, PW1 has stated that after the incident, he went home and as he was thinking about it, there was delay in giving complaint. During his cross-examination, it is elicited that a civil suit namely O.S.No.110/1989 was filed by complainant’s father against accused and that accused Nos.4 and 8 had filed civil suit O.S.No.317/1995 against complainant and their brothers, in which there was a decree for separate share. There is further elicitation of admission that accused had filed a criminal case in which PW4 was an accused. It is also elicited that complainant does not specifically remember which of the accused abused P.W.1, 3 to 5, but stated that all the accused abused them. PW1 further admits that in the

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complaint, he stated that his family members were informed about incident by some passersby. The evidence of P.W.1 insofar as the overt act of accused No.11 assaulting P.W.4 on her chest contradicts with the assertion in the complaint Ex.P.1. There is no explanation offered.

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PW2 is the pancha witness for the panchanamaEx.P2. In his examination-in-chief, he identified M.O.1, which was recovered from the field of complainant in his

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presence at the spot of the offence by drawing a panchanama. He identified his signature on the panchanama. In his cross-examination, suggestions are made that due to some monitory dealings between the witness and the accused, there was some misunderstanding. It is elicited from the witness that contents of Ex.P2 were written by police for which information was given by police themselves. In view of the said elicitation, evidence of P.W.2 does not support prosecution.

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PW3-Gururaj Desai cited as an eyewitness stated that the land R.S.No.246/1 was obtained as per sale agreement in the year 1984 and since then, they were in actual possession of the land. And further that on 06.07.2008, when someone came to his house and informed about accused assaulting his brother-PW1, he immediately rushed to the spot along with PW4 and PW5. At that time, he saw accused were assaulting P.W.1 with hands. They tried to pacify the accused. But accused Nos.2, 4 and 10 assaulted him with their hands. Accused Nos.6, 7 and 11 assaulted P.W.4 and accused No.11 hit PW4 with a stone, on her chest. PW5 was abused and assaulted by accused Nos.5, 8 and 9. At that time, listening to their cries, P.W.6 and P.W.7 came to the spot and stopped the quarrel. While leaving, accused uttered threat to life. In the cross-examination, P.W.3 states that P.W.1 is his brother. That litigation was pending between them and accused for two and half decades and they were not on good terms with accused. P.W.3 admits that accused No.11 has also filed a complaint in which himself,

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his brothers and P.W.4 are accused. It is further elicited that stones similar to M.O.1 are normally available by road side.

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PW4-Yogita Desai is the wife of complainantP.W.1. She is also one of injured eyewitnesses. In her evidence, she has stated that upon receiving information about accused quarreling with her husband, she along with PW3 and PW5 went to the spot and found that accused were beating her husband with their hands. When they sought to intervene, even they were beaten up and verbally abused. At that time, accused No.11 pulled her hand and hit her with a stone on her chest. Accused Nos.6 and 7 dragged her around when PWs6 and 7 came to the spot and stopped the quarrel. In her cross-examination, it is elicited that after the incident, it was informed to village elders and thereafter complaint was filed. In her cross-examination, it is elicited that civil suit is pending between them and accused and even accused had filed complaint in which she was also one of the accused. She

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further states that raised voices from the fields could be heard inside her house. It is further admitted that near the land, there is Haripur I.B. and infront of their land, there is a girls’ hostel and the quarrel went on for about half an hour to one hour. She further admits that stones similar to M.O.1 are easily available by the roadside.

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P.W.5-Laxmi Channappa Desaipatti, she was also examined as an injured eyewitness. In her examination-in-chief, she testified that she accompanied PW3 and PW4 to the spot after receiving information about accused assaulting PW1, at 10.30 a.m. on 06.07.2008. She states that on reaching, she saw P.W.1 being beaten by all accused. When they sought to intervene even they were abused and beaten. At that time, P.W.6 and P.W.7 came and stopped the quarrel. She states that PW4 was assaulted with M.O.1-stone. Though she does not give the details of the assault, in her crossexamination, she sought to improvise by stating that P.W.4 was assaulted by P.W.5, P.W.8 and P.W.9. She

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admits that she knows the names of some of the accused. Except corroborating the date and time of receipt of information about assault on P.W.1, evidence of P.W.5 does not improve prosecution case because of lack of particulars and details.

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PW6-Gangappa Ishwarappa Baligeri is also an eyewitness. He stated that on date of incident when he was going to his land, accused were quarreling with PW1. Accused had come to till the land when PW1 told them that they could do so only after obtaining decree from court. At that point, accused assaulted PW1. Thereafter, P.W.3, P.W.4 and P.W.5 came to the spot and he along with PW7 stopped the quarrel. In the cross-examination by the prosecution, on treating P.W.6 partially hostile, he stated that when he went to stop the quarrel, accused No.11 was beating PW1 with his hands and the accused were abusing P.W.1 and his family members. He further stated that accused No.11 assaulted PW4 with M.O.1. When he along with PW7 stopped the quarrel,

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accused threatened the P.W.1, P.W.3 to P.W.5 stating that they were saved on that day, but would be done away with their life the next time. The witness further states that after the incident, PW1 consulted the elders and thereafter filed complaint. The suggestions made to the said witness that he had monitory dealings with PW1 is denied. Likewise, the suggestion that ryots usually till the lands during July and August months and there were other people in the neighbouring lands on the date and time of the incident is also denied. But as per the case of the prosecution, P.W.6 while going to his land, heard the cries of P.W.1, P.W.3 to P.W.5 during assault by accused and he along with P.W.7 went and stopped the quarrel. But his oral testimony is a marked improvement on this position. His evidence is as if he was present near the spot all along and witnessed how the quarrel started and ended. The same is without any explanation and attracts doubt.

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In his testimony, PW7-Siddappa Itagi states that on the date and time of incident, he along with PW6

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was going near the land of P.W.1, to go to his land. At that time, there was a quarrel between accused and P.W.1. The accused abused and assaulted P.W.1. At that time, they went to enquire about the reason for quarrel. P.W.3 to P.W.5 arrived at the spot. Accused No.11 assaulted PW4 with a stone on her chest. He along with P.W.6 stopped the quarrel. In cross-examination he admits that there was litigation between accused and complainant’s family. He further admits that when he went to the field, along with accused, there were other people present, who were tilling the land. At that time, PW1 alone was present and the accused were abusing him. None of the neighbouring land owners came. PW7 specifically admits that apart from accused, there were five other persons. The presence of persons other than PWs1, 3 to 7 at the spot of the incident is not spoken to by any other witness though PW1, PWs3 to 5 and 6 are all eyewitnesses. PW7 further admits that the quarrel lasted for about half an hour, which contradicts with the duration mentioned by other witnesses. And like P.W.6,

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P.W.7 also testified as if he was a witness to the incident from the beginning till the end which is in total contradiction with the case of the injured eyewitnesses and therefore doubtful.

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PW8 is the doctor who examined PWs1, 3 to 5. He stated that the injured to his hospital at 4.00 p.m. on 06.07.2008 for treatment with history of assault which occurred the same day at 10.30 a.m. On examination, he noticed injuries to be simple in nature and issued wound certificates - Exs.P5 to P8 in that regard. PW8 admits that an MLC intimation was sent to police. It is elicited that age of injuries is not mentioned in Exs.P5 to P8 and no external injuries were noticed and admits that injuries mentioned in Exs.P5 to P8 can also occur due to fall from bullock-cart. The testimony of P.W.8 does not establish that injuries mentioned in Ex.P.5 to Ex.P.8 were caused or could be caused due to assault by accused. Failure to describe the injuries, age and manner of their cause casts serious doubt.

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PW9 is the I.O. who registered FIR and

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forwarded it to the court. He states that for investigation, he visited the spot the next day. The spot was identified by PW6 in the presence of PW2 and seized M.O.1. He states that he recorded statements of PWs3 to 8 on 07.07.2008; received wound certificates on 24.10.2008 and filed charge sheet on 30.12.2008. In his crossexamination, P.W.9 admits that accused had filed complaint registered as Crime No.102/2008 against PW1, prior to registration of complaint by PW1. But he does not clarify about MLC intimation said to have been sent by PW8. He also does not clarify about status of complaint given by accused. PW9 admits that there was no investigation conducted with regard to dispute regarding land between complainant and accused. P.W.9 is the I.O. He fails to explain delay in registering complaint. He fails to explain contradictions in testimonies of other witnesses and prosecution case. He admits the complaint Ex.P.1. Ex.P.1 is a counter-complaint given after accused had filed complaint against P.W.1, P.W.3 to P.W.5. There

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is no explanation why the complaint and counter-

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complaints were not investigated together. The appellate Court has recorded finding that P.W.1, P.W.3 to P.W.5 were acquitted in case filed by accused. There is no challenge to the said finding in this appeal.

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On consideration of above evidence, trial court held that prosecution established that the accused were present at the spot of incident, formed an unlawful assembly with common object, assaulted PWs1, 3 to 5 and also abused them using filthy language. Based on consistent evidence of PWs1, 3 to 5 and PWs6, the trial court however held that evidence was in-sufficient to establish charges against accused Nos.1, 3, 5, 8 and 9. Therefore, it acquitted accused Nos.1, 3, 5, 8 and 9 while convicting accused Nos.2, 4, 6, 7, 10 and 11. The trial Court observed that minor discrepancies existing in prosecution evidence could be discarded after sifting evidence to separate truth from untruth, exaggeration, embellishments and improvements. And if

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court can come to a conclusion that residual evidence is sufficient for conviction, accused cannot escape, as in present case. The appellate court on the other hand, examined various omissions and contradictions and came to conclusion that they were material omissions and contradictions and therefore it could not be held that the prosecution had established its case beyond reasonable doubt and that accused were entitled for acquittal on the basis of benefit of doubt. One of the main reasons assigned by appellate court for acquittal is the principle enunciated by this court in Criminal Appeal No.569/2003 disposed of on 17.07.2003 in the case of Kundgol Police Station V/s Channappa Uluvappa Bijapur and others in which it was held that in an incident where there is a clash between two groups involving case and counter case, in absence of valid defence, the inevitable conclusion would be that both parties would have to be convicted and punished and there cannot be acquittal of one side and conviction of other. In the instant case as P.W.1 and PWs3

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to 5 were acquitted on the complaint given by accused prior to complaint given in this case, the prosecution case cannot be said to be free from doubt. The appellate court has also held that delay of eight hours in lodging the complaint was fatal, in the light of existence of prior civil dispute and grudge between parties.

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Though learned ASPP has valiantly sought to argue for reversal of acquittal by the appellate court, existence of prior civil litigation between parties admitted by PW1, PWs3 to 7 is an important factor to be mind while examining the evidence. Any discrepancy or omission would lend support to benefit of doubt to a greater degree in the light of prior dispute and existence of grudge between complainant and accused. On a perusal of wound certificates, which are material documents in support of prosecution case, it is seen that the injured went to hospital voluntarily. The history of injury was stated as assault at 10.30 a.m. They were examined at 4.00 p.m. There is no explanation for delay. There is also no

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acceptable explanation why complaint was not given immediately after incident as injuries were all simple in nature. There is no mention about age of injuries nor particulars about which of the accused caused the injuries mentioned. There is no opinion about their cause. These are material omissions.

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There are inconsistencies/contradictions with regard to the specific overt acts of the accused. P.W.1 stated that he saw Accused Nos.6, 7 & 11 bearing P.W.4. P.W.3 stated that she saw Accused Nos.2, 4 and 10 bearing P.W.3 while Accused Nos.6, 7 and 11 were beating P.W.4. P.W.4 stated that Accused No.11 pulled her hand and hit her on her chest with stone while Accused Nos.6 & 7 were beating her with their hands. She stated that P.W.3 was beaten by Accused Nos.4 & 10. But P.W.5 stated that three accused each assaulted her, P.W.3 and P.W.4 without mentioning details but in cross-examination she improvises saying it was Accused Nos.5, 8 & 9 who had beaten her. During cross-examination of ADP, P.W.6

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admits suggestion that Accused No.3 & Accused No.6 were beating P.W.4, Accused Nos.5, 8 & 9 beating P.W.5 and Accused Nos.4 and 10 were beating P.W.3. Firstly in complaint Ex.P.1 it is stated that Accused No.11 hit P.W.4 with stone on her hand. Secondly no injuries are noted on her hand in Ex.P.6, while P.W.1, P.W.3, P.W.4, P.W.5 and P.W.6 all testify that Accused No.11 hit her on her chest with stone. Thirdly, P.W.5 stated that P.W.3, P.W.4 and herself (P.W.5) were beaten by three each of the accused. But the suggestion by the prosecution in crossexamination of P.W.6 implicates only two of the accused in respect of P.W.3 and P.W.4. These contradictions are totally unexplained.

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Further admitted by PW1, PW4 and PW6, the injured thought about the incident, consulted with elders and thereafter filed complaint Ex.P.1. The incident occurred at 10.30 a.m. The complaint is given at 8.20 p.m. on the same day. In the evidence of PW9, it has been elicited that Crime No.102/2008 was registered

¶148

¶149

based on a complaint by accused against PW1, PW3 and 4. The complaint Ex.P.1 given by PW1 is subsequent to said complaint and is registered as Crime No.103/2008. Therefore, the delay in registering complaint and admission of consultation with elders casts reasonable doubt about veracity of its contents. The probability of the same being an afterthought cannot be ruled out. In the light of said facts, acquittal of accused by appellate court is fully justified. The conclusions drawn by appellate court are with due reference to evidence on record and are not either perverse or suffer from any material irregularity.

¶150

In the circumstances, I do not find any merit in the appeal. It is accordingly dismissed.

¶151

Sd/JUDGE

¶152

CLK

State of Karnataka v. Mahaboobsab Subhansab Onti

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State of Karnataka v. Mahaboobsab Subhansab Onti

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