Dismissed

State of Karnataka, v. Joseph @ Francis Ambroise Luis

Karnataka HC10 Jul 2024CRL.A/100037/2017

Case brief

AI extract

What is this about?

The State preferred an appeal under Section 378 Cr.P.C. against an acquittal for offences under Sections 341, 324, 504, 506 IPC read with Section 34. The High Court dismissed the appeal, finding no error in the trial court's appreciation of evidence where key witnesses became hostile and medical evidence was inconclusive.

What did the court decide?

None; appeal dismissed.

State of Karnataka, Vs Joseph @ Francis Ambroise Luis — Bail and Remand | Karnataka HC (2024)

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NC: 2024:KHC-D:9553 CRL.A No. 100037 of 2017

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 10^TH DAY OF JULY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE G BASAVARAJA

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CRIMINAL APPEAL NO.100037 OF 2017 (A)

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BETWEEN:

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STATE OF KARNATAKA BY KUMTA POLICE STATION, THROUGH THE ADDL. STATE PUBLIC PROSECUTOR, ADVOCATE GENERAL OFFICE, HIGH COURT OF KARNATAKA, DHARWAD BENCH.

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…APPELLANT

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(BY SRI M.M. KHANNUR, AGA)

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AND:

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JOSEPH @ FRANCIS AMBROISE LUIS @ LOPIS, AGED 37 YEARS, WORKING AS MASSON,

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JENITHA W/O. JOSEPH LUIS, AGED 25 YEARS, WORKING AS HOUSE WIFE NEAR KANNADA SCHOOL, MURDESHWARA,

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BALACHANDRA NARAYANA @ SAVERA PATAGARA, AGED 36 YEARS, WORKING AS COOLIE,

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Digitally signed by VINAYAKA B V Location: HIGH COURT OF KARNATAKA

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ENIKA W/O. BALACHANDRA PATAGAR, AGED 30 YEARS, WORKING AS HOUSE WIFE,

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ALL ARE RESIDING AT MASOOR, JANATHA PLOT, MASOOR CROSS, KUMTA, DISTRICT UTTARA KANNADA, KARWAR.

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…RESPONDENTS

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(BY SRI S.L. MATTI, ADVOCATE AND

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SRI MOH'D RAFIQUE SANTEGULI, ADVOCATE)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (1) AND (3) OF CR.P.C., SEEKING TO GRANT SPECIAL LEAVE TO APPEAL AND TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 02.11.2016 PASSED BY THE PRL. CIVIL JUDGE AND JMFC, KUMTA IN C.C.NO. 123 OF 2016 AND ECT.,

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NC: 2024:KHC-D:9553 CRL.A No. 100037 of 2017

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THIS CRIMINAL APPEAL, COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Appellant-State has preferred this appeal against the judgment of acquittal dated 02^nd November, 2016 passed in CCNo.123 of 2016 on the file of Principal Civil Judge and JMFC, Kumta (for brevity, hereinafter referred to as the “trial Court”).

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For the sake of convenience, the parties herein are referred to as per their status and rank before the trial Court.

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Brief relevant facts leading to this appeal are that, the Sub-Inspector of Police, Kumta submitted charge sheet against the accused for the offence punishable under Sections 341, 324, 504, 506 read with Section 34 of Indian Penal Code. It is alleged in the charge sheet that there was an ill-will between the complainant and accused with respect to marriage of Steffi who is a relative of the complainant. Because of that ill-will, on 28^th June, 2015 at about 1.30 pm in front of the house of Fatima situate at Janata Flat near Masoor Cross, the accused wrongfully restrained them and pulled the tuft of Fatima and Steffi and accused them in filthy language. Accused No.3 caught hold of the complainant and accused No.1 assaulted

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with beer bottle on the head of the complainant and accused No.2 also assaulted with wooden petiole and caused injuries and also gave life-threat to them. Thus the accused have committed the offence punishable under Sections 341, 324, 504, 506 read with Section 34 of Indian Penal Code. After filing the charge sheet case was registered in CC No.123 of 2016 and summons was issued to the accused. In response to summons, accused appeared before the trial Court and were enlarged on bail. After filing charge sheet, trial Court framed charges for the alleged commission of offence. Same was read over and explained to the accused. Having understood the same, accused pleaded not guilty and claimed to be tried. To prove case of prosecution, in all, six witnesses were examined as PWs.1 to 6 and got marked seven documents as per Exhibits P1 to P7 and marked two material objects as MOs.1 and 2. On closure of prosecution side evidence, statement of accused under Section 313 of Code of Criminal Procedure was recorded. The accused have totally denied the incriminating evidence appearing against them, but have not chosen to lead any defence evidence on their behalf. Having heard the arguments on both sides, the trial Court acquitted the accused. Being

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aggrieved by the judgment of acquittal, the State has preferred this appeal.

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Sri Madanmonan Khannur, learned Additional

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Government Advocate appearing on behalf of the State, would submit that the judgment and order of acquittal passed by the trial Court is contrary to law, facts and on evidence on record. PW1 is the complainant and injured eye-witness has specifically stated as to the overt act of each of the accused and has supported the case of the prosecution. He submits that PW1 has stated in consonance with the complaint Exhibit P1 and his evidence is clinching and inspires the confidence of the Court and in the cross-examination of this witness, nothing has been elicited to disbelieve the evidence of PW1. Learned Additional Government Advocate submits that it is the quality of the evidence that has to be looked into by the Court while appreciating the evidence on record. In view of Section 134 of Evidence Act, no particular number of witnesses shall, in any case, be required for proof of any fact. The testimony of solitary statement of a witness is sufficient to convict the accused. This aspect of the matter has not been properly read and appreciated by the trial Court and thereby erred in

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acquitting the accused. The trial Court erred in not issuing witness summons to the Doctor and Investigating Officer and hurriedly passed the judgment without giving proper and sufficient opportunity to prove the case of prosecution and the same caused miscarriage of justice and would prejudice the interest of prosecution. He submits that the Hon'ble Supreme Court in the case of PULSIVE TECHNOLOGIES P.LTD v. STATE OF GUJARAT & OTHERS reported in 2015(4) Crimes 246, has held that evidence of the injured witness is sufficient to convict the accused. The said decision has not been followed by the trial Court and thereby erred in acquitting the accused and hence sought to allow the appeal.

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On the other hand, Sri S.L. Matti, learned counsel appearing for the respondent-accused submitted that the trial Court has properly appreciated the evidence on record in accordance with law and facts which needs no interference and sought for dismissal of the appeal.

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Having heard the arguments on both sides and on perusal of appeal papers and original records, the following points would arise for my consideration:

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Whether the prosecution has made out a ground

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to interfere with the impugned judgment of

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acquittal?

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What order?

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My answer to the above points is as under:

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Point No.1: in the negative;

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Point No.2: as per final Order.

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Before adverting to the actual facts of the case and appreciation of evidence, it is necessary to refer the dictum of Hon'ble Supreme Court regarding scope and power of Appellate Court in appeal against the order of acquittal.

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In the case of MOTIRAM PADU JOSHI & OTHERS v.

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STATE OF MAHARASHTRA reported in 2018 SCC ONLINE SC 676, at paragraph 23 of the judgment, it is held thus:

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“23. While considering the scope of power of the appellate court in an appeal against the order of acquittal, after referring to various judgments, in Chandrappa v. State of Karnataka (2007)4 SCC 415, this Court summarised the principle as under:-

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“42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while

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dealing with an appeal against an order of acquittal emerge:

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(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

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(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

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(3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

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(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that

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every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

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(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. ”

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In the case of MUNISHAMAPPA & OTHERS v. STATE

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OF KARNATAKA & CONNECTED APPEALS reported in 2019 SCC ONLINE 69, at paragraph 16 of the judgment it is held as under:

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“ 16. The High Court in the present case was dealing with an appeal against acquittal. In such a case, it is well settled that the High Court will not interfere with an order of acquittal merely because it opines that a different view is possible or even preferable. The High Court, in other words, should not interfere with an order of acquittal merely because two views are possible. The interference of the High Court in such cases is governed by wellestablished principles. According to these principles, it is only where the appreciation of evidence by the trial court is capricious or its conclusions are without evidence that the High Court may reverse an order of acquittal. The High Court may be justified in interfering where it finds that the order of acquittal is not in accordance with law and that the

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approach of the trial court has led to a miscarriage of justice. … ”

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In the case of HARI RAM & OTHERS v. STATE OF RAJASTHAN reported in 2000 SCC ONLINE 933, at paragraph 4 of the judgment, it is observed thus:

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“4. Mr. Sushil Kumar Jain, the learned Additional Advocate General for the State of Rajasthan on the other hand contended that the power of the High Court while hearing an appeal against an order of acquittal is in no way different from the power while hearing an appeal against conviction and the Court, therefore was fully justified in re-appreciating the entire evidence, upon which the order of acquittal was based. The High Court having examined the reasons of the learned Sessions Judge for discarding the testimony of PWs 6 & 7 and having arrived at the conclusion, that those reasons are in the realm of conjectures and there has been gross miscarriage of justice and the misappreciation of the evidence on record is the basis for acquittal, was fully entitled to set aside an order of acquittal and no error can be said to have been committed. It is too well settled that the power of the High Court, while hearing an appeal against an acquittal is as wide and comprehensive as in an appeal against a conviction and it had full power to re- appreciate the entire evidence, but if two views on the evidence are reasonably possible, one supporting the acquittal and the other indicating conviction, then the High Court would not

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be justified in interfering with the acquittal, merely because it feels that it would sitting as a trial court, have taken the other view. While re- appreciating the evidence, the rule of prudence requires that the High Court should give proper weight and consideration to the views of the learned trial Judge. But if the judgment of the Sessions Judge was absolutely perverse, legally erroneous and based on wrong appreciation of the evidence, then it would be just and proper for the High Court to reverse the judgment of acquittal, recorded by the Sessions Judge, as otherwise, there would be gross miscarriage of justice.… ”

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In the case of STATE OF RAJASTHAN v. KISTOORA RAM reported in 2022 SCC ONLINE 684, at paragraph 8 of the judgment it is held as under:

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“8. The scope of interference in an appeal against acquittal is very limited. Unless it is found that the view taken by the Court is impossible or perverse, it is not permissible to interfere with the finding of acquittal. Equally if two views are possible, it is not permissible to set aside an order of acquittal, merely because the Appellate Court finds the way of conviction to be more probable. The interference would be warranted only if the view taken is not possible at all.”

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In the case of MAHAVIR SINGH v. STATE OF

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MADHYA PRADESH reported in (2016)10 SCC 220, at paragraph 12 of the judgment, it is observed thus:

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“12. In the criminal jurisprudence, an accused is presumed to be innocent till he is convicted by a competent court after a full-fledged trial, and once the trial court by cogent reasoning acquits the accused, then the reaffirmation of his innocence places more burden on the appellate court while dealing with the appeal. No doubt, it is settled law that there are no fetters on the power of the appellate court to review, reappreciate and reconsider the evidence both on facts and law upon which the order of acquittal is passed. But the court has to be very cautious in interfering with an appeal unless there are compelling and substantial grounds to interfere with the order of acquittal. The appellate court while passing an order has to give clear reasoning for such a conclusion.”

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Regarding Point No.1:

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I have examined the material placed before this court. As could been seen from the charge sheet, the Investigating Officer has cited nine witnesses in the charge sheet. Out of them, prosecution has examined six witnesses as PWs.1 to 6.

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PW1-John Fernandes Ketana, has deposed in his evidence that the accused are his relatives. That on 28^th June 2015 at about 1.30 pm when CWs.5 and 6 were on their way to

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come to their house, accused caught hold of their tuft and assaulted. When they screamed, he went out and witnessed that accused No.1 and 2 were assaulting CWs.5 and 6. He enquired and separated them. On enquiry, accused No.3 caught hold of him tightly and accused No.1 gave a blow to him with beer bottle on his head; accused No.4 abused him in filthy language; accused No.2 assaulted him with petiole on his head. When he screamed, CWs.3 and 4 came. Then the accused threw the beer bottle and left the spot saying that he will not leave them and they will see as to how they perform the marriage of their co-sister and also gave a life-threat. CWs.3, 4 and 6 took him to the Government Hospital Kumta. When he was in hospital police came and recorded his statement as per Exhibit P1 and he has also put his signature as per Exhibit P1(a). Further he has deposed that on 29^th June, 2015 between 4 to 5 pm, police came to be spot and conducted spot panchanama as shown by him and CWs.2 and 3 were present at the time of panchanama. Police have also prepared sketch

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and taken photograph and seized the beer bottle, so also, the petiole that were used for commission of offence under mahazar Exhibit P2. He has also identified the beer bottle MO1 and petiole MO2 and have also recorded further statement and has identified the accused.

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PW2-Ramchandra Hanumantha and PW3-Kevina Fernandes said to be the attestors to mahazar Exhibit P2, have not supported the case of the prosecution.

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PW4-Leena Fernandes has deposed that CW1 is her husband and CW3 is the son of her elder sister and the accused are her relatives. The accused have not wrongly restrained CWs.5 and 6 and they have not abused with filthy language so also not assaulted with beer bottle and she has not given statement to the police.

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PW5-Fatima Fernandes and PW6-Steffi Fernandes, victims, have not supported the case of prosecution.

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All these PWs.4 to 6 have been treated as hostile witnesses by the prosecution and with the permission of the Court they were cross-examined by the prosecution. Even during their cross-examination, PWs.4 to 6 have categorically

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denied the statement recorded by the Investigating Officer under Section 161 of Code of Criminal Procedure which are marked as Exhibits P5 to P7. Accordingly, prosecution has failed to elicit any favourable answers from them to substantiate its case.

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The wound certificates of the injured were not marked. I have perused the wound certificates from the court record. Even in the wound certificates also there is no reference as to the name of the accused. Even if it is marked as Exhibits, same would not be helpful to the case of the prosecution to prove the guilt of the accused. The wound certificate pertaining to PW1 reveals that he has sustained one injury to parental region measuring 5 x 2 x ½ cm and the Doctor has opined that the injury is simple in nature. The age of injury is not shown in the wound certificate.

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During the course of cross examination of PW1, he has clearly admitted that MO1-beer bottle was not broken but the wound certificate reveals that there is a cut lacerated injury. Further, in the cross-examination, PW1 has stated that his clothes were blood-stained and he has shown the same to

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the Police, but they have not received the same. Admittedly, there is an ill-will between the complainant and accused as to the marriage of CW6-Steffi and there is no consistency in the evidence of PW1 and medical evidence as to the injury caused to PW1. Since there is an ill will between the accused and PW1, the interested testimony of the PW1 cannot be believed in the absence of cogent, convincing, clinching and corroborative evidence. All other material witnesses who are related to PW1 have not supported the case of the prosecution. Considering all these aspects, the trial Court as properly appreciated the evidence on record in accordance with law and facts and acquitted the accused.

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On re-appreciation/re-examination and

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reconsideration of the entire evidence on record, and also keeping in mind the decisions of the Hon'ble Supreme Court, I do not find any error/illegality/legal infirmity in the judgment of acquittal. Accordingly, I answer point No.1 in the negative.

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Regarding Point No.2:

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