Allowed

Sri Pavan v. State of Karnataka by

Karnataka HC3 Jul 2024CRL.A/401/2014

Case brief

AI extract

What is this about?

High Court allowed criminal appeal against conviction for attempted murder, assault, and criminal intimidation. Court acquitted appellant due to lack of corroborative evidence, contradictions in victim's testimony, hostile panchanama witnesses, and uncorroborated police record gaps.

What did the court decide?

Conviction and sentence set aside; accused acquitted of charges; bail bond cancelled; accused set at liberty.

Sri Pavan Vs State of Karnataka by — Murder and Culpable Homicide | Karnataka HC (2024)

¶1

¶2

NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3^RD DAY OF JULY, 2024

¶4

BEFORE

¶5

THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR

¶6

CRIMINAL APPEAL NO. 401 OF 2014

¶7

BETWEEN:

¶8

SRI. PAVAN S/O LATE S.C. MUNIYAPPA AGED ABOUT 21 YEARS R/AT NO.707, 58^TH CROSS II CROSS, 15-F BUS STOP KUMARASWAMY LAYOUT BANGALORE-560 071.

¶9

…APPELLANT

¶10

(BY SRI. KARTHIK V., ADVOCATE)

¶11

AND:

¶12

STATE OF KARNATAKA BY CHIKKAJALA POLICE BANGALORE

¶13

Digitally signed by SHAKAMBARI Location: HIGH COURT OF KARNATAKA

¶14

…RESPONDENT

¶15

(BY SRI. K. NAGESHWARAPPA, HCGP)

¶16

THIS CRL.A. IS FILED U/S. 374(2) OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:14/28.3.14 PASSED BY THE V ADDL. DIST AND S.J., DEVANAHALLI IN S.C.NO.61/12 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 341 AND 307 OF IPC AND THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I. FOR 3 YEARS AND SHALL PAY FINE OF RS.30,000/- (RUPEES THIRTY THOUSAND), IN DEFAULT OF PAYMENT OF FINE, HE SHALL FURTHER UNDERGO R.I. FOR A PERIOD OF 1 YEAR FOR THE OFFENCE P/U/S 307 OF IPC.

¶17

¶18

NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶19

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

¶20

JUDGMENT

¶21

Appellant-accused has challenged the judgment of

¶22

his conviction and order of sentence dated 14.03.2014 in Sessions Case No.61/2012 and order of sentence dated 28.03.2014 passed by the V Addl. District and Sessions Judge, Devanahally, Bengaluru Rural District, convicting him for the offences punishable under Sections 504, 341, 307 of IPC and sentencing him as under:

¶23

The parties to this appeal are referred to as per

¶24

their rank before the trial Court for the sake of convenience.

¶25

Proceeding before the trial Court:

¶26

PW.1 V.M.Vijaya, the mother of victim girl filed a complaint before the Chikkajala Police Station stating that, her daughter Kum.Lavanya was studying in the final year B.Com at Presidency College, Kempapura, Bengaluru. Their residential quarters is situated at Government

¶27

3 - NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶28

Hospital compound, Bettahalasuru of Bengaluru North Taluk. In their quarters, PWs.1, 2 and other children are staying. PW.2 used to attend her classes and returning home in the afternoon. Thereafter, she used to attend the coaching classes at Yelahanka Upanagara between 2.30 p.m and 4.30 p.m.

¶29

It is specifically stated in the complaint - Ex.P1 that, accused stated to be a choreographer and teaching dance at Presidency College. It is stated that, PW.2 and accused were known to each other and both started loving each other. It is alleged that, one month prior to the incident, when PW.2 was attending her tuition classes, accused told her that, he is loving her and wants to marry. But, PW.2 flatly refused. Thereafter, accused went to the house of PW.1 and requested this PW.1 to perform his marriage with PW.2 as she is loving him. But, PW.1 advised him not to indulge in such love affair. Thereafter, it is alleged that accused was insisting PW.2 to love him and marry him.

¶30

¶31

NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶32

It is alleged by the complainant that, as usual on 17.11.2011, PW.2 Lavanya came from College. As it

¶33

was a holiday for her tuition classes, she was in the house. At about 4.00 p.m. accused came to the house of PW.1 and insisted PW.1 to arrange his marriage with Lavanya. But, PW.1 told him that they are not interested to arrange marriage of PW.2 with him and further told that, if her husband and son got the knowledge of this fact, it will become very serious and warned him not to come to the house. It is alleged that, at 5.30 p.m. PW.2 wanted to go

¶34

to Yelahanka Dairy Circle to get some eatables for her. It

¶35

is alleged that, accused followed her. In front of VIT college, accused again insisted PW.2 to marry him and when she denied, he became angry. Because of this refusal, he told that, she should die and she shall not marry another person. By saying so, he removed a blade from his pocket and assaulted PW.2 Lavanya with the said

¶36

Razor blade on her neck and caused her bleeding injuries. PW.2 became scared and she became afraid of her mother if she informs the same to her. Therefore, she called PW.7

¶37

5 - NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶38

Kiran and asked him to come to spot. Accordingly, PW.7 Kiran and his brother PW.8 Chethan came to the place of incident on their motor cycle. On seeing them, accused left the place. On her request, she was taken to the local Hospital and thereafter, she was shifted to Colambia Asia Hospital in an Ambulance for further treatment. When she was moving to the Hospital, she informed the said fact of sustaining injuries to her mother through telephone. PW.1 rushed to the Hospital.

¶39

In the Hospital, when PW.2 was under treatment, one Sri Byalamurthy, the then Asst. SubInspector of Chikkajala Police Station examined as PW.11 came to the Hospital and recorded the statement of PW.1 as per Ex.P1, went to the Police station and registered

¶40

crime against the accused for the offences punishable under Sections 341, 504 and 307 of IPC and set the criminal law in motion.

¶41

¶42

NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶43

The Investigating Officer conducted the

¶44

investigation and after completion of investigation, filed the charge sheet against accused for the aforesaid offences. During the course of investigation accused was arrested and subsequently enlarged on bail.

¶45

Before the learned trial Court, to substantiate the case of the prosecution, in all, examined 14 witnesses and got marked Exs.P1 to P10 with respective signatures and MO Nos. 1 to 4 and closed prosecution evidence. After

¶46

recording the 313 statement of the accused as per Sec.313 of Cr.P.C., accused himself entered the witness box as DW.1. During the course of evidence of PWs.1, 3 and 12, certain portions of their statement were marked as Exs.D1 to D6 and on behalf of the defence Exs.D4, 5, 7 to 12 were marked.

¶47

The learned trial Court, on hearing the arguments and on evaluation of the evidence placed on record by the prosecution found the accused guilty of committing offences under Section 341 and 307 of IPC and

¶48

7 - NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶49

acquitted the accused of the charges punishable under Section 504 of IPC and sentenced him as stated above. This is how the appellant is before this Court challenging the impugned judgment.

¶50

The learned counsel for the appellant-accused Sri Nagendra Naik submits that, the impugned judgment passed by the trial Court was not with open mind. The observations so made were already pre-determined by the trial Court to convict the accused. It is his submission that,

¶51

on reading the entire evidence of the prosecution and the defence set up by the accused, the very scene of offence is disputed. The evidence placed on record by the prosecution is not wholly reliable and hence, unless such evidence is corroborated by independent witnesses, the story of the prosecution cannot be believed. In this case. except the evidence of PW.1 which is full of contradictions, omissions and discrepancies, there is no direct evidence connecting the accused in the commission of the crime. It

¶52

is his submission that, the whole story of the prosecution

¶53

8 - NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶54

cannot be believed at any stretch of imagination. According to his submission, the learned trial Court in para.19 has observed with regard to the laxity on the part of the prosecution and unmindful application of mind by the Public Prosecutor in recording the evidence. It is observed in para.19 that, unnecessary witnesses are examined who are all hearsay witnesses. At the best, PW.1, PW.2, PW9 and 10 would have been examined and the other witnesses were examined to bring more contradictions, inconsistencies in the evidence so as to

¶55

give an opportunity to the accused to contend that prosecution examined only interested witnesses and no independent witnesses were examined. It is observed by the trial Court that, an attempt was made by the learned Public Prosecutor to damage the case of the prosecution rather than to prove it.

¶56

Relying upon this observation, it is submitted

¶57

that, it shows the pre-determination of the mind of the

¶58

Court to convict the accused which is not at all warranted

¶59

9 - NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶60

to observe so. He relied upon various contradictions, so called omissions and discrepancies and highlighted them in the course of his arguments. It is his submission that, the whole case of the prosecution suffers from material particulars and it is full of embellishment. He prays to allow the appeal and set aside the impugned judgment.

¶61

Refuting this submission, the learned High

¶62

Court Government Pleader submits that, PW.2 is a victim and her evidence proves about the commission of the

¶63

crime by the accused. She was injured in the hands of the accused and she being the injured witness would not have deposed falsehood so as to falsely implicate the accused. It is his submission that, evidence of PW.2 is corroborated by the evidence of the doctor who has issued the wound certificate. This would establish that, prosecution is able to prove the injuries sustained by PW.2 because of assault made by the accused by using the razor blade. Even there was an attempt to cause murder of this PW.2 by the accused. It is his submission that, the learned trial Court

¶64

10 - NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶65

has cautioned the prosecution to examine the relevant witnesses by observing so. The said observation does not amount to pre-determination. Therefore, he submits, with cogent and acceptable reasons, the trial Court has convicted and sentenced the accused by passing the judgment under challenge. Therefore, he prays to dismiss the appeal in limine .

¶66

I have given my anxious consideration to the arguments of both the side. Perused the records. In view of the rival submissions of both the side, the following point arises for my consideration:

¶67

" Whether the trial Court has committed any illegality or infirmity in passing the impugned judgment of conviction and order of sentence and whether it requires interference by this Court?"

¶68

In the present case, it is seen that the trial

¶69

Court basically relying on the evidence of PWs.1, 2 and 7 being the complainant, injured victim and the friend of

¶70

11 -

¶71

NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶72

PW.2 has come to the conclusion that, the prosecution is able to establish the guilt of the accused.

¶73

Evidently, PW.1 complainant is not an eye witness to the alleged incident. She came to know about the incident only when she received a telephone call from Police about sustaining of injuries by PW.2 Lavanya. But, her evidence is quite essential to know the background of the so called incident which has taken place as per her evidence.

¶74

She states that, in the year 2011, PW.2 Lavanya was studying at Presidency College in her Final B.Com and after completion of college hours, she used to go to Yelahanka new town to attend the coaching classes. It is her evidence that, about 15 days prior to the alleged incident at about 2.30 p.m. accused came to her house. At that time, she was alone in the house. He told that, he is loving Lavanya. PW.1 told that she does not know him and enquired about his parents. The accused told that, he has got deep love on Lavanya and about that, he asked

¶75

12 -

¶76

NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶77

PW.1 to enquire with PW.2. At that time, PW.1 told that,

¶78

her daughter would not agree for the same and if this fact is known to her husband and son, they will not keep mum and asked him not to come to her house. He went away. It is her further evidence that when her daughter came to the house at about 3.30 to 4.00 p.m. she enquired her daughter about her love affair with accused but, she told that she is studying and she has no love affair with accused.

¶79

It is her further evidence that, after 15 days, at about 4.30 p.m. again accused came to her house and told that, he has spoken with her son and husband and by saying so, he came inside the house, PW.1 told, her son has gone to attend his job and he will not come early and also asked him not to come to the house. On hearing the same, he went away. Thereafter, her daughter came to the house at about 5.00-5.30 p.m. she asked her daughter to bring the household articles and accordingly, she sent her daughter PW.2 to the shop. Her daughter had to board

¶80

13 -

¶81

NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶82

the rikshaw and to reach rikshaw stand she has to walk for

¶83

10 mts.

¶84

It is stated that, when her daughter was

¶85

moving in a rikshaw towards the shop, at that time, accused was waiting for her and when she got down from the rikshaw, he told her that, her mother had agreed for marriage and why she is not agreeing. By saying so, he stabbed her neck. The persons who were moving on the road and police informed PW.1 about the injuries sustained by PW.2 and she requested to shift her daughter to Colambia Asia Hospital. After informing her husband, she went to the said hospital and noticed the injuries on her daughter who has taken the first aid treatment and she was requesting her mother to save her. Thereafter, she underwent surgery. The police came to the hospital and recorded the complaint as per Ex.P1 and took all the information from the victim and also seized blood stained clothes of her daughter.

¶86

14 -

¶87

NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶88

If this examination-in-chief spoken to by PW.1 is compared with the contents of complaint, it is found that, there is quite improvement in her evidence on oath. This PW.1 was thoroughly cross-examined by the defence.

¶89

On going through the cross-examination directed to PW.1 she has altogether deposed a different, inconsistent and contradictory evidence in the crossexamination. As per her evidence, when she received the telephone call, her daughter Lavanya spoke to her stating

¶90

that, at Sonnappanahalli Area, the accused cut her neck with blade and ran away. According to her, in between 10.30 to 11.00 a.m. on that day, she gave statement. Her oral statement was reduced to writing by the Police. It is her evidence that, she has told the Police that, the said incident has taken place ahead of Sonnappanahalli near the road turning. According to her she requested the police to take her daughter to Colombuia Asia Hospital. She admits that, at Yelahanka, there is a Government Hospital

¶91

15 -

¶92

NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶93

and one Dr.Shashidhar is working in the said Hospital.

¶94

Even she admits that, at Bettahalasur there are doctors.

¶95

With regard to the happenings of the events prior to the incident, she deposed that, when accused came to her house stating that, he is loving the victim Lavanya at that time, she enquired about his antecedents. It is her evidence that at 3.30 p.m. on that day, when her daughter came to the house, she enquired about the love affairs about herself and accused and at that time, Lavanya told that, she is not loving the accused and she is studying. According to her evidence, in the compound of Bettahalasur hospital, there are nine residential quarters

¶96

and she is working in the said hospital. She deposed ignorance that, after leaving the house, where Lavanya went till she received telephone call from the police and she does not know about the same. According to her, after

¶97

one hour from leaving the house, she received a telephone call from the police. It was Lavanya who told her that

¶98

16 -

¶99

NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶100

accused cut her neck. She does not know the caste of the

¶101

accused. She denied all the other suggestions.

¶102

On scrupulous reading of the entire crossexamination directed to PW.1, she has changed the scene of offence which is situated near the Sonnappanahalli cross in a road curve area. We find quite improvement and additions in the cross-examination if it is compared to the complaint allegations.

¶103

Amongst the witnesses so examined by the prosecution, PW.3 Srinivas Ramakrishnappa, PW.4 Srinivas Thimmanna are the scene of offence panchas, PW.5 Ravichandra Krishnappa and PW.6 Ravi Muniyappa are the seizure panchas of said blade. But, all these four witnesses being the panchas have turned hostile except admitting their signatures on the panchanama marked at Ex.P3 and P4. Therefore, the evidence of these panchas cannot be believed about their presence when the aforesaid panchanamas were conducted by the police.

¶104

17 -

¶105

NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶106

In all criminal cases, panchas are the authors of the panchanama and if they do not support the contents of panchanama then, it can very well be stated panchanamas are not duly proved in accordance with law. This fact is not properly assessed by the learned trial Court with regard to the proof of scene of offence panchanama and recovery panchanama which play an important role in deciding the conducting of panchanama. When it is alleged by the prosecution that, at the instance of the accused, the said blade was seized, it has to be proved in accordance with law as contemplated under the provisions of Sec.27 of the Indian Evidence Act. But, seizure panchas have not supported the case of the prosecution.

¶107

PW.7 Kiran S/o.Shankar was examined by the prosecution to prove that he being the friend of PW.2, on 17.11.2011, PW.2 Lavanya called this PW.7 and asked him to come near the dairy cross. She told that, one boy name Pavan is with her and she wants to talk with him. Accordingly, this PW.7 and his brother Chethan examined

¶108

18 - NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶109

as PW.8 came to the said place and there both enquired about the relationship of Pavan with PW.2. At that time,

¶110

accused told that, he has no relationship with her and by saying so, he went away. It is the evidence of PW.7 that, after accused went away, himself and his brother also went to their house. On the same day, at 5.30 p.m., once again, Lavanya called him on his telephone and told that said Pavan near the VIT College cross has cut her neck and asked him to come to the said place. Accordingly, himself and his brother Chethan PW.8 went to the said

¶111

place. Lavanya was found calling him by showing her hands. When they went and saw Lavanya, they noticed oozing of blood from her neck. Therefore, she was taken to NRV hospital and there the first aid treatment was provided to her and thereafter, she was shifted to Columbia Asia Hospital in an ambulance belonging to NRV hospital.

¶112

In the cross-examination directed to PW.7, he deposed that he came in contact with Lavanya in the

¶113

19 - NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶114

tuition class but, she was not in talking terms with him on telephone. But, he was knowing her mobile telephone no.

¶115

As per his evidence, on that day, near dairy circle she saw accused Pavan for the first time. He does not know about the love affair between Lavanya and accused Pavan. He further deposed that, on that day, at 5.30 p.m. Lavanya called him and informed that, accused Pavan has cut her neck. He deposed ignorance about love affair in between them and in order to put fear in the minds of her parents she has herself has cut the neck. For this suggestion, he has deposed ignorance.

¶116

It is his evidence that, Lavanya did not inform either before the doctors at Columbia Asia hospital or any of the staff of the said hospital stating that, accused Pavan has cut her neck. Likewise, his brother Chethan corroborates the evidence of his brother.

¶117

As per his evidence on 17.11.2011, at 3.30 p.m. as per the request of his brother, he went with him near Yelahanka Mother dairy i.e. a bus stand. There he

¶118

20 -

¶119

NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶120

noticed the presence of Lavanya and accused standing together. Lavanya introduced accused to them. When there were talks in between them, the accused spoke filthy words with his brother Kiran and accused told that, he will take care of Kiran. This evidence is not spoken to by PW.7 in his evidence. Further, this PW.8 states that again they went at 5.30 p.m. near the VIT college curve, they noticed

¶121

the presence of Lavanya and she was not talking. By making signs, she asked him to come near her. He noticed oozing of blood from her neck. He too states about providing first air treatment to Lavanya in NRV hospital and shifting her to C.A hospital.

¶122

On reading the evidence of PWs.7 and 8 they too have changed scene of offence. Evidently, both these witnesses are not the eye witnesses to the said incident. They only arrived to the place on receipt of information from Lavanya to them. Their evidence can be accepted to the extent that they reached the spot only on information from Lavanya and noticed the injuries on her neck and

¶123

21 -

¶124

NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶125

thereafter, they shifted her to NRV Hospital provided first aid treatment thereafter, shifted her to the CA Hospital.

¶126

PW.9 Virupaksha, is none else than the father

¶127

of Lavanya and he is also a hearsay witness with regard to the said incident. In his examination-in-chief, he states that. on 17.11.2011, Lavanya after coming from college went to bring the bread from Bakery. At that time, she noticed standing of accused on the road which is about 5 mts walk from the house of the complainant. It is his evidence that, on noticing the standing of accused there,

¶128

his daughter boarded the autorikshaw and accused also boarded the autorikshaw. when his daughter got down at Sonnappanahalli near VIT college cross, accused followed her and told that, if she refuse to marry him, he will kill

¶129

her and by using the blade he cut her neck. This is altogether a different evidence spoken to by PW.9, the father of the victim girl. As he is a hearsay witness, no credibility is attached to this witness except of getting

¶130

22 -

¶131

NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶132

information regarding the said injuries on the person of Lavanya.

¶133

In the cross-examination, he admits that, till Lavanya came from the Hospital, he was not knowing how his daughter sustained injuries. As per the evidence of PW.1 on getting information with regard to the assault on her by blade, she informed her husband PW.9. But, this PW.9 gives different evidence. As per evidence brought on record, PW.2 was in-patient at CA hospital for two days.

¶134

On the date of incident, as per evidence of PW.9, this PW.9 was informed. Whether this PW.9 visited the hospital to see his daughter on getting such information of assault on her is not at all stated either by PW.1 or PW.9 or by PW.2 Lavanya. Thus, this conduct of PW.9 goes to establish that, he was not at all aware about the alleged incident and assault on his daughter. Therefore, the evidence of PW.9 cannot be accepted.

¶135

PW.10 Naveen, is also a brother of Lavanya and

¶136

he too is a hearsay witness. As per his evidence, after two

¶137

23 - NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶138

days of incident, Lavanya informed, that accused assaulted her by using blade. He has completely deposed ignorance about the love affair between Lavanya and accused. As he is a hearsay witness, much value cannot be attached to the evidence PW.10.

¶139

PW.11 is Bylamurthy, then ASI of Chikkajala P.S. as per his evidence, on 17.11.2011 at 11.20 p.m., PW.1 came to the Police Station and gave a oral complaint. He reduced the same in writing which is at Ex.P1 and registered the crime in Crime No.104/2011 for the aforesaid offences. He identifies Ex.P5 the First Information Report sent to the Court as well as superior officers. It is elicited in the cross-examination that, PW.1

¶140

has informed him that, her daughter was assaulted by using the knife. But, here, the blade is seized. Through this evidence of PW.11, the prosecution has changed the weapon alleged to have been used to assault PW.2. The evidence of PW.11 can be accepted to the extent that

¶141

24 -

¶142

NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶143

based upon Ex.P1 complaint registered the crime and set the criminal law in motion.

¶144

PW.12 the Police Constable of Chikkajala Police Station was examined by the prosecution to prove that on 17.11.2011, when he was on patrolling duty to collect the sacred information, at 6.00 p.m., when he was so moving towards NRV hospital, he noticed two boys found shifting a girl in an ambulance. Her clothes were blood stained. When he went and enquired a boy by name Kiran told the history of assault stating that, one Pavan who is in love with Lavanya, as Lavanya refused to love him, he assaulted her on her neck by blade and they are shifting to Columbia Asia Hospital for treatment. He also accompanied them to Columbia Asia Hospital. He further deposed that, on the way to the hospital Lavanya gave her mother's telephone number and he informed her mother PW.1 that, her daughter Lavanya is being taken to the Columbia Asia Hospital for treatment. Immediately, he informed the said incident to the Police Inspector of

¶145

25 - NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶146

Chikkajala Police Station. It was informed to him by his Police Inspector that, till arrival of parents of the injured, he should be in the hospital. After arrival of parents of Lavanya, he went to the police station. But, PW.9, the father of Lavanya never deposed that he too went to the hospital on the date of incident.

¶147

In the cross-examination, he deposed that, he has not enquired about the injuries being sustained by Lavanya and she was in a position to speak. The blood was oozing from her neck profusely. He spoke with mother of Lavanya. According to him, at Columbia Asia hospital Lavanya did not inform the doctors about the person who assaulted her.

¶148

The evidence of PW.12 shows that, he

¶149

accompanied Lavanya from NRV hospital only and he called the mother of Lavanya and informed about the injuries. Though he informed the Police Inspector about the incident of assault on Lavanya, there is no evidence that, information given by PW.12 was reduced into writing

¶150

26 -

¶151

NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶152

by the SHO of Chikkajala Police station as informed to

¶153

Police Inspector. No such evidence is placed on record.

¶154

The evidence of the PW.11 Bylamurthy shows

¶155

that for the first time, PW.1 came to the Police Station at 11.20 p.m on 17.11.2011 and filed a complaint. When at 6.30 p.m. Police Inspector of Chikkajala Police Station got the information of so called assault on the person of Lavanya and knew that the said injured is being shifted to the Columbia Asia Hospital, nothing prevented the IO to depute any of his police officials to the hospital to record

¶156

the statement of victim girl who was in a position to talk or the persons who accompanied her. He would have directed the police constable i.e., Srinivas who was examined as PW.12 to record the statement of Lavanya. It is a serious

¶157

lapse on the part of the IO. For this, there is no explanation offered by the prosecution.

¶158

27 -

¶159

NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶160

PW.13 Dr.Kiran Jayaram, medically treated the

¶161

victim girl Lavanya and she noticed the following injuries as stated in Ex.P6:

¶162

"1. Incised wound over the right of neck measuring

¶163

7 cms cutting the underlying muscles.

¶164

2. Incised 2cm over middle region of neck towards the left side cutting the underlying muscles.

¶165

3. Incised wound 1 cm over middle of neck".

¶166

As per his evidence, the said injuries are

¶167

grievous in nature. According to him, he has seen the blade when it was presented before him by the police. To the extent of medically examining Lavanya and treating

¶168

her and issuing Ex.P6, the evidence of this PW.13 can be accepted. According to his cross-examination, Lavanya did not inform the name of the assailant. As per his evidence, the said case is registered as MLC case in the MLC register and intimation was sent to the Police. He says that, the said injuries are not self-inflicted injuries. The injuries were fresh. He denied other suggestions.

¶169

28 - NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶170

PW.14 Thippeswamy Jayadevappa was the Police Inspector of Chikkajala Police Station at the relevant time. As per his evidence, he took up the investigation from ASI on 18.11.2011. Though he knew about the incident on 17.11.2011 from his police constable. He went to the hospital to record the statement of injured on the following day. He states that, the injured was not in a position to give any statement.

¶171

This is altogether a different version of police inspector. He speaks with regard to the investigation conducted by him, arrest of the accused, recording of the statement of the witnesses and recovery of the blade etc.,

¶172

and the Panchanama. He has been directed with severe cross-examination.

¶173

In all criminal cases, IO's are supervisors of investigation. Unless their evidence is corroborated by independent witnesses, much value cannot be attached to such evidence.

¶174

29 -

¶175

NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶176

Then remains the evidence of victim Lavanya examined as PW.2. As per her evidence, during 2011, she was studying in B.Com final degree course at Kempapura Residency college and evening hours she used to go to coaching class at Yelanhanka Upanagara, she identifies accused stating that, he used to teach dance to the students. She came to know about the accused from her senior friends. Both exchanged their telephone numbers. According her evidence for about 5 to 6 months, they used to have conversation in between them on telephone and they were exchanging messages.

¶177

It is her evidence that, one day accused called her on telephone and told that, he is loving her and wants to marry. At that time, she told that, she is not loving him. After that , when she was talking with other boy friends, at that time, accused came there and asked her not to speak with other boys. Thereafter, he used to cut his hands by using blade. It is her further evidence that, whenever she used to move towards bus stand from college, he used to

¶178

30 - NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶179

follow her and shout at her that, he loves her. Because of their culture learnt from her parents, she has not responded to the persistent demand of the accused. She has not informed the said fact to anybody but, she used to weep. When her mother PW.1 asked her, why she was weeping, at that time, she told that there is some problem in the college.

¶180

It is her further evidence that, after these incidents, everyday accused started following her. When she was attending coaching classes, he used to force her to love him. It is her further evidence that, there was a house warming ceremony at Tumakuru belongs to them, therefore, she went to attend the said function but, accused by getting address came to Tumakuru and informed her mother that he is loving her.

¶181

It is her further evidence that, after completion of her B.Com Semester examination, she called the aforesaid Kiran on telephone and informed the problems she is facing because of the accused. At that time, the said

¶182

31 -

¶183

NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶184

Kiran told to call Pavan i.e. accused and they will have a discussion. Accordingly, she went to attend the computer tally class situated near Yelahanka Dairy circle and called the accused there. At that time, Kiran and his brother Chethan also came there. When they advised the accused, he told that, he will not trouble Lavanya and went to his house. At that time, she was weeping. Thereafter, she went to her house, her mother asked her why she was weeping. On the same day itself in between 5.00 or 5.30 p.m. accused came to her house and told her mother that,

¶185

he wants to speak to Naveen her elder brother. At that time, PW.2 Lavanya told her mother that, she intends to go to her aunt's house at Vijayapura and took Rs.50/- and was preparing herself to go to her aunt's house. When she was wearing the chappals, at that time, accused assaulted her with blade on her neck.

¶186

This Lavanya was under the impression that, if

¶187

she informs the fact of assault on her, her mother will be scared of the same. Therefore, by using the cotton she

¶188

32 -

¶189

NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶190

wiped off the blood, thereafter, started moving towards Bettahalusuru Cross for that, she boarded autorikshaw accused was following her. She was under the impression that, if she moves in autoriskaw, the accused may commit something therefore, she got down from autorickshaw at VIT cross and started walking. At that time, accused followed her and called her name as Lavanya and asked

¶191

her to agree to his proposal and told that, because of her he has cut his hands. Suddenly, accused caught hold her both the hands from her behind and by using the shaving

¶192

blade, scratched her neck 2 to 3 times. Because of the same, she sustained injuries on her neck and blood started oozing. Immediately, she called her friend Kiran and informed him that, accused has assaulted her by using blade. On such information, Kiran and his brother came there and thereafter, both took Lavanya to NRV hospital. As her nerves were cut, therefore, it was not possible for the doctor of NRV hospital to give treatment and asked her to go to higher hospital with facilities and provided an

¶193

33 -

¶194

NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶195

ambulance. Thereafter, she was shifted to Columbia Asia Hospital.

¶196

When she was on the way to the said hospital the police informed her mother. Her mother came to the Hospital and there the doctors treated her. According to her, at that time, she was unable to speak. On seeing her mother she started weeping. She took the treatment as an in-patient for two days.

¶197

If this evidence of PW.2 is compared with the evidence of PW.9 her father, according to him, he never visited the hospital but, it has come in the evidence of Kiran that, her father also visited the hospital. PW.2 never

¶198

says about the visit of her father to the hospital. She further speaks with regard to the clothes worn by her at the time of incident which were blood stained.

¶199

On scrupulous reading of panchanama of scene of occurrence and the evidence of PW.1 so also PW.8 and evidence of PW.2, there is a complete change of scene of offence through their evidence. So, therefore, every

¶200

34 - NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶201

witness so stated above have stated different scene of offence with that of scene so mentioned in the scene of offence panchanama.

¶202

It has come in the evidence of PW.2 that, after her discharge from hospital, police came to her house and recorded her statement and asked her to show the scene of offence. She showed the scene of offence as VIT cross, and accordingly police prepared pancahnama Ex.P2. For the first time, she states in her evidence about the proposal of accused to love her if not, she should not be available to others. Therefore, accused has attempted to kill her by using MO No.4 the blade. Throughout her cross-examination, she maintains about the said incident and speaks about her talking with the accused during her college days.

¶203

On reading the entire cross-examination directed to her, we find more contradictions, improvement

¶204

and omissions in her evidence with that of her chief examination. At one breadth, she states that accused was

¶205

35 -

¶206

NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶207

not accompanying them whenever she used to go to college trip but, in another breadth she says that, she attended many functions with him. She admits that, to celebrate the New Year function during 2010-11 herself and her friends along with accused visited a restaurant at Kanakapura and to that effect she has stated before the police.

¶208

Accused was pestering her that, he is loving her and in four days in a week he used to follow her. She identifies her Whatsapp number as well as her email.id so also face book account. According to her, she used to send messages, chat with him in whatsapp and send messages through email. She denies about sending of such messages to him. According to her, she has not taken treatment at Bettahalalusu hospital immediately after the incident. As per her evidence, there was first assault in her house when she was wearing the chappal. At that time, according to her, blood did not fall on the ground and even no blood fell on her clothes. She used to wear the veil but,

¶209

36 - NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶210

on that day, she was not wearing the veil. She decided to go to Vijayapura in a bus and to board the bus, she has to go to Bettahalusur cross and accused followed her. She has stated before the police of following of accused and also forcing her to love him etc., She denied other suggestions with regard to providing Mobile sim to her. She has deposed that, she has stated before the police about catching hold of her two hands from her behind and assaulting her. But, this statement is not found in her statement recorded by the police under Section 161 of Cr.PC.

¶211

For the first time she states that, when accused assaulted with blade, she was unable to speak, cried for protection, nobody came there. In examination -in -chief she states that, accused cut her three to four times but, in cross-examination she states that, he cut her three to four times. It is further stated by her that, after getting Rs.50/from her mother, she did not go to the shop to purchase the articles. No blood fell at the scene of offence.

¶212

37 -

¶213

NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶214

It has come in her evidence that, when accused

¶215

was following her, she did not inform other road users regarding accused following her. She did not shout for any help but was moving fast. According to her, she has stated before the Police that by using the shaving blade accused has cut her neck. But, this fact is not found in the statement given before the Police. Further she states that accused caught hold her two hands by using his one hand and at that time she tried to rescue herself but, she could not. She requested the accused to leave her but, did not

¶216

bite his hands to rescue herself. She cannot say that on which place of her neck, accused assaulted her. She was not carrying her vanity bag at that time.

¶217

It has come in her evidence that even accused

¶218

has cut his hands and she has seen the blood oozing from injuries on hands sustained by him. She says, the hands of accused were also blood stained. She further states that, on that day, except Rs.50/- she was not taking any article with her. It is her evidence that, after assaulting her,

¶219

38 - NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶220

accused was following her from VIT Cross, and at that time, she did not notice about holding of a blade in his hands. She moved for 4 to 5 steps and tried to stop the two wheelers to give a drop to the hospital. She further states that, accused was running behind her and following her. She did not inform the motorcyclist about assault on her by the accused. There was no continuous oozing of blood from the injuries. She waited for 10 minutes at VIT cross, at that time also, blood was oozing but, it did not fall on the ground. Further, she states that, Kiran and his

¶221

brother came to the said place at 6.20 or 6.25 p.m. and she reached the VIT cross at about 6.10 p.m. She further states, the Bettahalasur is about 2 kms. away from VIT cross but, she did not go to that hospital. Kiran and Chethan came on two wheelers took her to NRV hospital. Thereafter she was shifted to Colambia Asia Hospital.

¶222

She further states that to the doctors at

¶223

Colambia Asia Hospital , she did not inform the name of assailant on her and there was no difficulty for her to

¶224

39 - NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶225

inform the name of the accused who assaulted her. She denied other suggestions that, she has told her mother that she is loving accused and wants to marry him as the caste of accused is different than the cost of PW.2 therefore, her parents did not agree for the same. She has not informed her parents or her brother about the assault. She states that she is not married as on 19.3.2013, when she was under cross-examination.

¶226

On scrupulous reading of the entire evidence of this PW.2 being the victim girl, we find that there are much improvements, contradictions, omissions and discrepancies in the evidence placed on record by the prosecution.

¶227

So far as evidence in criminal cases is

¶228

concerned Law is very much settled with regard to the oral testimony which can be divided into three categories, they are:

¶229

40 -

¶230

NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶231

Wholly reliable

¶232

Wholly unreliable

¶233

Neither wholly reliable nor wholly unreliable.

¶234

The Hon'ble Apex Court in Nirmala

¶235

Premkumar and another vs. State represented by Inspector of Police reported in 2024 SCC Online Hon'ble

¶236

Apex Court 260 have reiterated with regard to the oral testimony which are divided into three categories. It is held in the said judgment that, first two categories of cases may not pose serious difficulty for the court arriving at its conclusion. However, in the third category of cases, the court has to be circumspect and look for corroboration of any material particulars by reliable testimony, direct or circumstantial as the requirement of rule of prudence.

¶237

It is settled principle of law in a case of present nature, the sole testimony of the victim if found reliable and trustworthy requires no corroboration and may be sufficient to invite conviction of the accused.

¶238

41 -

¶239

NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶240

When PW.2 is a sterling witness, her evidence should be of high quality and caliber whose version should, therefore, be unassailable. On reading her evidence in its entirety, the Court must be in a position to accept it on its face value without any hesitation. It is held in the aforesaid judgment that, to test the quality of such witness, the status of the witness would be immaterial and what would be the relevant is, the truth fulllness of the statement made by such a witness. It is further observed that, what would be more relevant would be the consistency of the statement right from the starting point till end, namely, at the time when witness makes the initial statement and ultimately before the Court. He should be natural and consistent to the case of the prosecution qua the accused. Therefore, there should not be any pre-variations in the version of such a witness. That means the witness should be in a position to withstand the cross-examination of any length and how so ever strenuous may be and under no circumstances should give room for any doubt as to the factum of occurrence,

¶241

42 -

¶242

NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶243

the person involved as well as the sequence of it. Such a version should have co-relation with each and other of other supporting material such as recoveries made, the weapons used, the manner of offence committed, scientific evidence, and the expert opinion.

¶244

It is further held in the said judgment, that the said version should consistently match with version of every other witness. If this analogy is applied to the present facts of the case, in this case, except self-serving interested improved evidence of PW.2 with full of embellishments, there are no other witnesses spoken before the Court about the assault on the person of the victim girl PW.2 by the accused. The other witnesses are hearsay witnesses including the complainant. The panchas turned hostile. The pedestrians moving on the road are not examined as eye witnesses. The PC who came to NRV hospital has informed the mother of PW.2 and there also PW.2 did not inform the name of the assailant. Even she

¶245

43 -

¶246

NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶247

has not informed the name of the assailant at Columbia Asia Hospital.

¶248

Thus, circumstantial evidence to establish the link of committing the offence on the person of the victim girl at the scene of offence shown by her to the police is not established. She has changed the scene of offence. At one breadth she says the first assault was committed in her house by the accused and at another breadth, it was at VIT college cross near the bus stand and so on. So, on reading the entire evidence placed on record by the prosecution, the missing link of committing the offence by the accused at the place so stated by PW.2 is missing. Therefore, the version of PW.2 does not qualify with regard to the circumstances stated by herein committing the offence by the accused. There is no quality evidence spoken to by her which is full of contradictions, omissions and improvements. If the version of PW.2 qualifies the test of her veracity in getting evidence before the Court, such evidence can be considered. Therefore, PW.2 cannot be

¶249

44 -

¶250

NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶251

termed as sterling witness and her version cannot be accepted by the court without any corroboration. Even Kiran and Chethan who arrived at the scene of offence were not informed by the complainant that it was accused who assaulted her in the manner stated in her evidence.

¶252

In this case, except evidence of PW.2, there is no acceptable evidence placed on record by the prosecution. Therefore, the witnesses examined in the case including PW.2 can be termed as neither wholly reliable nor wholly unreliable. When sterling witness has not supported the case of the prosecution in material particulars by giving graphic account of the incident, unless there is a corroboration, her evidence cannot be accepted. The initial statement of the complainant and her statement before the court are quite contrary.

¶253

In view of the above said guided law, it can be stated that, on reading the entire evidence placed on record threadbare and when it is noticed the manifest contradictions and discrepancies in the oral evidence of

¶254

45 -

¶255

NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶256

the prosecution witnesses, it can be stated that such evidence have the effect of casting a serious doubt with regard to the veracity of the prosecution.

¶257

Though the prosecution has made an attempt to establish that, the victim PW.2 was the victim in the hands of accused but, her evidence does not inspire confidence in view of the absence of corroborative evidence lead by the prosecution. In a strange turn of events, she has changed the scene of offences. Her complaint is very much silent about assault on her in her house when she was wearing the chappals. Her mother PW.1 never says that on the day of assault, really accused was in the house, till PW.2 was found leaving from the house. On the factum of complaint being made to the local police in the hospital itself, the police started investigation. But, the IO has not traced the pedestrians who were moving on the road at the time of alleged incident. The neighbours of the complainant's house who have seen the accused visiting the complainant's house are not

¶258

46 -

¶259

NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶260

examined. Therefore, from the initiation of complaint itself i.e. contents of the complaint and mode and manner of the

¶261

same being lodged creates grey cloud of suspicion. Definitely, it creates a clear doubt with regard to the very happening of the incident in the manner stated by PW.2.

¶262

Accused also entered the witness box as DW.1 and has stated that he has filed an application before the Kumaraswamy Layout police station to provide the copies of the messages sent by Lavanya. The said application is marked at Ex..D7. He has also produced D8 to D12 the copies of messages sent through mail and photographs to show that both were having love affair between them. He has been cross-examined by the Public Prosecutor. He states that these D8 to D12 were taken from Kumaraswamy Layout and admits about email prints by anybody. PW.2 never denies specifically with regard to these messages sent by her.

¶263

On reading the contents of Ex.D8 to D12 they

¶264

are the messages sent by PW.2 addressing accused

¶265

47 -

¶266

NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶267

expressing 'her happy new year' greeting as stated at P8. She has expressed 'happy birthday' greeting to the accused as per P9. She has stated that, accused is 'her sweet heart' and 'she loves him too much'. After the incident, as per the defence of the accused, this PW.2 has sent the email message stating that " I am really sorry - pls. understand my situation - I was afraid of my family, so I played that ". This goes to establish that, some play was played by PW.2.

¶268

On reading the evidence of DW.1 accused, it shows that both were acquainted with each other and had some affair between them. As she was afraid of her family, she must have given her statement before the Police so as to implicate the accused. This possibility cannot be ruled out in view of her evidence spoken in the crossexamination.

¶269

Conclusion :

¶270

On reviewing the entire material placed on record, it can be stated that the evidence placed on record

¶271

48 - NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶272

by the prosecution suffers from material particulars. The evidence of PW.2 is full of contradictions, omissions and discrepancies which is not properly explained by the prosecution. The other witnesses so examined, except police officers are the hearsay witnesses. Even the police offices evidence is also not corroborative with evidence of PW.2. Therefore, one cannot arrive at conclusion of guilt against the accused and such a guilt cannot be drawn against as it was not wholly established.

¶273

The learned trail Court has not considered all

¶274

these aspects and simply believed the evidence of PW.2. But, in view of the discussion made above, there is no proper appreciation of evidence by the trial Court. Thus, the impugned judgment suffers from infirmity, illegality and requires interference.

¶275

Accordingly, the points raised supra are answered against the prosecution and in favour of the accused.

¶276

49 -

¶277

NC: 2024:KHC:25140 CRL.A No. 401 of 2014

¶278

Resultantly, I pass the following:

¶279

ORDER

¶280

(i) The Appeal is allowed.

¶281

(ii) The judgment of conviction and order of sentence passed by the V Additional District and Sessions Judge, Devanahalli, in SC No.61/2012 dated 14.03.2014 is hereby set aside.

¶282

(iii) Consequentially, the accused is acquitted of the charges under Sections 341, 504 & 307 of IPC.

¶283

(iv) The bail bond of the accused stands cancelled and set at liberty.

¶284

(v) Whatever the fine amount so paid by the accused is to be released by the trial Court in favour of accused/appellant digitally after collecting necessary documents.

¶285

(vi) Send back the trial Court records along with copy of this aforesaid judgment forthwith.

¶286

Sk/-, List No.: 1 Sl No.: 20

¶287

Sd/JUDGE

Sri Pavan v. State of Karnataka by

Case brief

What is this about?

What did the court decide?

Sri Pavan v. State of Karnataka by

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sri M M Nanaiah Vs Sri C a Manoj

K.J. Vinay Vs Praveen

Rangaramaiah Vs the State of Karnataka

Sri B S Janardhana Vs the State of Karnataka

Sakre Bosaiah Vs the State of Karnataka

V Gopinath Padiyar Vs the State by Cbi/Acb