State of Karnataka Vs Raja

THIS CRL.A. IS FILED U/S.378(1) AND (3) OF CR.P.C PRAYING TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE JUDGEMENT AND ORDER OF ACQUITTAL DATED 22.07.2019

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PASSED IN S.C.NO.16/2019 BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, CHITRADURGA, THEREBY, ACQUITTING THE ACCUSED/RESPONDENTS OF THE OFFENCE P/U/S 447,504,323,324 AND 506 R/W 34 OF IPC AND ETC.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR

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ORAL JUDGMENT

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The appellant - State being aggrieved by the judgment of acquittal dated 22.07.2019 passed in SC.No.16/2019 by the Principal District and Sessions Judge, Chitradurga has preferred this appeal.

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The parties to this appeal are referred to as per their status before the Trial Court.

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The accused was charge sheeted by P.S.I Nayakanahatty police station, Challakere taluk, Chitradurga for the offences punishable under Sections 447, 504, 323, 324, 506 read with Section 34 of IPC

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alleging, that complainant - Umakka and her husband Chandranna are the residents of Bhathaiahnahatty village

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and residing with their two children. They are possessing landed property in Survey No. 499 of Bhathaiahnahatty village of Challakere taluk. It is alleged, that at about 11.30 a.m, on 24.09.2018, the second son of the complainant by name 'Sridhara' had been to his landed property for the purpose of irrigating onion crop. To that effect, when he was near the bore well, he noticed that accused No.1 - Raja had cut and removed the electrical wire fixed to the starter of the Bore well. This 'Sridhara' informed the accused No.1 that he will inform this fact to

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his parents. But, accused No.1 enraged by the words of said Sridhara, abused him in filthy language, so also provoked the complainant. Accused No.2 - Kulda papaiah i.e., the father of accused No.1, abated accused No.1 to commit the offence. The said accused No.1 by holding coconut leaves assaulted 'Sridhara' on his back and waist. Accused No.2 assaulted him by using stick on his left fore-

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arm and gave a life threat to him. By that time, Suraiah and Palaiah came and rescued Sridhara from the clutches of the accused. Thereafter, Sridhara went to his house

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and informed the said incident to his mother, complainant

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Umakka and she took him to the hospital for a treatment.

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The SHO of Nayakanahatty police station, on getting MLC report, went to the hospital at 4.00 p.m, and recorded the statement of the complainant - Umakka in between 4.00 pm and 4.45 p.m. Came to the police station and registered the crime in Crime No.147/2018 and set the criminal law in motion. On completion of investigation, charge sheet came to be filed against the accused persons for the aforesaid offences. As there were alleged a violation of the provisions of Commissions for Protections of Child Rights Act, 2005, charge sheet was laid before the Trial Court for the aforesaid offences.

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The Trial Court took the cognizance of the offence. Presence of the accused was secured and they were enlarged on bail. Charges were framed against the accused for the aforesaid offences, read over and

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explained in the language known to them and for which they pleaded not guilty and came to be tried.

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To substantiate the charges against the

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accused, prosecution in all examined 10 witnesses as PW.1 to PW.10 and got marked documents as per Exs.P1 to P10, so also MO Nos.1 and 2 and closed its evidence. Thereafter, accused were questioned under Section 313 of Cr.P.C, so as to enable them to answer the incriminating circumstances appearing in the evidence of prosecution.

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They denied their complicity in the crime and did not

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choose to lead any defence evidence.

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The learned Trial Court, on hearing the

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arguments and on scrutiny and evaluation of the evidence led by the prosecution, raised 5 points for consideration and answered all the points in the negative and ultimately by disbelieving the evidence of the prosecution, passed an

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order of acquittal of both the accused for the aforesaid offences vide judgment dated 22.07.2019. This is how

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now the appellant - State is before this Court challenging the impugned judgment of acquittal.

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Smt. Rashmi Jadhav, learned Additional SPP, in addition to narrating the facts of the case and finding fault with the findings of the Trial Court would submit that, PW.2 is the injured and his evidence is corroborated by the evidence of other witnesses. As the injured witness was the child witness, below the age of 18 years as on the date of incident, therefore by invoking the provisions of Section 25 of the Commission for Protection of Child Rights Act,

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2005, the charge sheet was laid before the Special Court and accordingly, the case was tried. Sofaras the minority of PW.2, when the said incident took place, it is not disputed by the prosecution or the defence. However to that effect, the prosecution relies upon Ex.P6 - the birth certificate of PW.2, wherein it shows that, he was a minor, born on 18.12.2002 and the date of incident took place on 24.09.2018. That means when the said incident took place, PW.2 - Sridhara was a minor.

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She would further submits that, in view of evidence of PW.1 - Umakka, the mother of PW.2, as well as other corroborative evidence do establish about assault on the person of PW.2 and injuries so sustained by him. Presence of accused Nos.1 and 2, at the spot is not disputed. Therefore, she would submit that, the findings of the Trial Court have to be set at naught and accused persons are liable to be convicted and sentenced. She placed reliance on the grounds urged in the appeal memo and prays to allow the appeal.

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Per contra , the learned counsel for the

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respondent - accused would submit that, findings of the Trial Court clinchingly establish, that except the self serving evidence of PW.2 coupled with the interested evidence of PW.1, there is no evidence placed on record by the prosecution. Therefore, he submits that, there is no evidence placed on record to prove the guilt of the accused beyond all reasonable doubt and hence, prays to dismiss the appeal.

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I have given my anxious consideration to the arguments of both the sides. Perused the records. In

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view of the rival submissions of both sides, the point that is to be decided in this appeal is:

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"Whether the findings of the Trial Court with regard to the acquittal of accused require any interference by this Court?"

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It is a case of assault. When assault and threat is alleged against the accused persons, so also using of filthy language against PW.2, it is a duty of the prosecution to prove the so called incident with legal evidence. There must be corroborative evidence with regard to the said incident and also nature of injuries sustained by the injured, which must be corroborative in nature, with that of the contents of the Wound Certificate. Evidently PW.1 - Umakka is a hearsay witness and after the incident, when PW.2 informed about the incident, she

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took him to the hospital and in the hospital she gave a complaint as per Ex.P1. As she is a hearsay witness,

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much value cannot be attached to the evidence of PW.1 and more so she is the mother of PW.2. However, in the cross-examination, she deposes that, she lodged a complaint in between 3 p.m and 4 p.m, but complaint shows it was filed in between 4 p.m and 4.45 p.m. During that time, her son was studying in 9^th Standard, but denied the suggestion to the effect that, her son PW.2 had committed theft of sheep of the accused and to that effect accused lodge a complaint against him.

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PW.2 - Sridhara as per the discussion

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made by the Trial Court during the course of judgment do reveal that, he went to the landed property at 11.30 a.m on that day to irrigate the onion crop, but noticed that accused No.1 had cut and removed the electrical wire connected to the Bore well starter. After getting such knowledge about cutting the electric wire, PW.2 informed accused No.1 that he will bring this fact to the notice of his parents, being enraged by this, accused No.1 picked up a quarrel with him, abused him in filthy language, assaulted

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him with coconut leaves on his back and waist. Accused No.2 gave a threat and abated accused No.1 not to leave him and gave a stick to assault PW.2. But the complaint allegation shows that, accused No.2 assaulted PW.2 with stick. As observed by the Trial Court, so much of improved evidence has been spoken by PW.2 both in examination-in-chief and in his cross-examination. He identifies MO Nos.1 and 2 and it is recovered from the scene of offence at the time of preparing panchanama at Ex.P2. He states in his cross-examination that, he has not

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given any statement before the police. As rightly observed by the Trial Court, PW.1 is the hearsay witness to the alleged incident and PW.2 has given quiet different evidence with improved version both in his examinationin-chief as well as in his cross-examination.

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As per the case of the prosecution, PW.3 and PW.4 are the eye witnesses and they rescued PW.2, but PW.3 and PW.4 have been turned hostile. Though they are cross-examined by the prosecution, but nothing worth

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is elicited. It has come in the evidence of prosecution that, PW.2 and PW.5 are also the eye witnesses, but prosecution cited them as spot panchas. There is no explanation offered that, why PW.5 is not arrayed as eye witness. PW.6 is the spot pancha and in his presence MO Nos.1 and 2 were seized. Though evidence of PW.5 and PW.6 proved about panchanama but other evidence is not credit worthy to be accepted.

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PW.7 is another witness with regard to the incident and according to him, near the scene of offence, his land is situated, but his evidence is not worth reading as per the case to prove that, it was accused No.1 who had cut and removed the electric wire connecting the electric starter.

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PW.8 - Dr. Nagaraj, though speaks about

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noticing of the injuries on the person of PW.2, when he medically examined him but altogether, he has given a different evidence in his examination-in-chief as well as in

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cross-examination with regard to the injuries as narrated in Ex.P5 - Wound Certificate.

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PW.10 - Head Constable registered the crime and set the criminal law in motion. The learned Trial Court while giving findings on various points for consideration, has considered the improved version of the witnesses, inconsistencies with regard to the injury suffered by PW.2 with that of the Wound Certificate and has noticed the contradictions, omissions and discrepancies in the evidence of the prosecution witnesses and has come to the conclusion that, with regard to the said incident except self serving evidence of PW.2, there is no direct evidence spoken to by any witnesses. PW.1 and PW.3 are the hearsay witnesses to the said incident. As rightly argued by the counsel for the accused, there are material contradiction and improvements in the evidence of PW.2 and the injuries so suffered by PW.2 are not duly proved as per the contents of the complaint. The learned Trial Court has pointed out all these discrepancies in its findings

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and has come to the conclusion that, in view of the evidence led by the prosecution, it is not safe to convict the accused and prosecution has failed to prove the cogent

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and acceptable evidence to convict both the accused. Even on re-appreciation of such evidence, one cannot come to a different conclusion than the conclusion arrived at by the Trial Court. More so, this is an appeal on acquittal and while appreciating the evidence in a judgment of acquittal, the innocence of accused in view of acquittal is more probable. Even on re-appreciation of evidence, in view of the clear findings of the Trial Court, I do not find any factual or legal error committed by the Trial Court in acquitting the accused. Therefore, the Trial Court has given sound findings in acquitting the accused. More so, in appreciating the evidence of PW.2 - the minor child, the Court must be very cautious. No such evidence is placed on record that, the evidence of PW.2, a child witness is trust worthy. Therefore, in the considered view of this Court, in view of the discussion made above, the

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