Hariba Patil Vs. State of Karnataka  Insc 679 (19 October 2006)
Sinha & Dalveer Bhandari S.B. Sinha, J.
appeal under Section 2 of the Supreme Court (Enlargement of Criminal Appellate
Jurisdiction) Act, 1970 arises out of a judgment and order dated 16th
September, 2005 passed by the High Court of Karnataka at Bangalore in Criminal
Appeal No.936 of 1999 whereby and whereunder an appeal preferred by the State
of Karnataka against a judgment and order of acquittal passed by the trial court
herein along with three others was accused of commission of an offence
punishable under Sections 302, 307, 504 read with Section 34 of the Indian
Penal Code (for short, 'IPC'). They were acquitted by the learned Trial Judge.
On an appeal preferred by the State of Karnakata, the High Court set aside the said judgment and order, convicting the
appellant herein for commission of an offence under Section 302 IPC. The High
Court has further held all the accused to be guilty of commission of an offence
under Section 307 IPC for causing injuries to P.W.2-Bhaganna. The accused Nos.
1 to 3 were also convicted for an offence punishable under Section 307 IPC for
causing injuries to P.W.3, as also for causing injury to P.W.4. No separate sentence,
however, was awarded for offences punishable under Section 504 read with
Section 34 of the Indian Penal Code.
deceased and the accused No.1 Ningappa Bhaganna Padagaon belonged to the same
village. Accused No.1 had no bullocks of his own. He allegedly borrowed the
bullocks of Appellant. On 16.12.1997, while ploughing his own land, he
allegedly started ploughing the land of the deceased to which he objected.
P.W.2 his son, Bhaganna, P.W.3 his wife, Tangawwa and P.W.4 his daughter, Mayavva,
were said to be present at that place. The incidence, allegedly, took place at
about 3.00 p.m.
quarrel ensued, whereupon all the four accused are said to have assaulted the
deceased. Appellant is said to have assaulted him with a hammer.
and 4 were also said to have been assaulted by the other accused with bamboo
sticks. Seeing the assault Kusumavva, daughter of the deceased allegedly cried
for help, whereupon, the accused persons are said to have left the sticks and
hammer at the spot and ran away. Some alleged independent witnesses P.W.14, Mallappa
and P.W.15, Rawa Sab, were also said to be present at the spot. The distance
between the place of occurrence and the police station which is situated in the
town of Athani is said to be about 5 to 5= kms. P.W.5, allegedly, boarded a
jeep, which was presumably being run as a taxi, went to the police station and
informed about the incident to P.W.11-Nagaraj, a PSI attached to the said
police station. No First Information Report was, however, lodged by him thence.
injured, allegedly, were lying unconscious for a period of about three hours.
P.W.11 came to the spot and shifted all the injured persons to the Government
hospital. Murugappa, the deceased, succumbed to his injuries at about 5.15 p.m on the same day. The First Information Report in
relation to the said incident thereafter was lodged by P.W.2.
the learned Trial Court, the prosecution examined 18 witnesses. The learned
Trial Judge on cogent reasons opined that the prosecution had not been able to
prove its case. The learned Judge noticed various discrepancies in recording
its judgment of acquittal.
High Court, on the other hand, relied upon the testimonies of the so-called eye
witnesses and reversed the said judgment.
not disputed before us that Appellant did not have any land in the vicinity.
There exists a dispute as to whether the land where allegedly the occurrence
took place belonged to the deceased. It has been found by the learned Trial
Judge, which finding has not been set aside by the High court, that the land
said to be adjacent to that of the deceased was given on lease by the Tahsildar
to one Bhima Murari Banadi, who was a successful bidder in an auction held for
the said purpose. The accused No.1, admittedly, did not own any bullocks to
plough his land. The dispute in regard to the land, if any, was between the
deceased and accused No.1. The deceased is alleged to have given some land to
him, who was claiming more.
was, allegedly, the first person to be assaulted by the accused No.1. The
deceased came to his rescue and in the process was assaulted by iron hammer by
Appellant, whereas the accused Nos. 1, 2 and 3 assaulted him with bamboo
sticks. Both P.W.2's mother and sister, P.W.4 (C.W.9) were also allegedly
assaulted. The incident is said to have been witnessed by some of the
independent witnesses. There were many houses around the land in question. The
Investigating Officer, however, did not find any house, leading to a comment
from the learned Trial Judge that he might not have visited the place of
occurrence at all. P.W.2 and other witnesses admitted that there were 30 to 40
houses sounding the agricultural land where the incident allegedly occurred. It
was admitted that the land is put on auction every year and for the years
1997-98, one Bhima Murari Banadi being the highest bidder in the auction, had
been put in possession of the said land. The revenue records also prove the
said fact. Admittedly, there were several agriculturists who had been cultivating
their own lands.
witness stated that the police came to the spot after three hours. It is
difficult to believe that the injured had been lying on the spot so long, but
P.W.2 did not call any other person whomsoever in the meanwhile. Who had brought
the injured in the jeep, in which they were shifted, had not been disclosed.
Who had taken them to the hospital had also not been disclosed.
deceased was declared dead at the Government hospital, whereas P.W.2 and other
injured witnesses were treated at Sangli Hospital.
is the wife of the deceased. She, although, supported her case in regard to the
assault but admitted that her husband had died at the Government hospital whereafter
the police took them to Sangli hospital.
said to be an injured witness but failed to identify the weapons of assault. It
is of some interest to note that she had accepted that the police had tutored
her in the morning of the day on which she deposed in the Court.
to her, the quarrel had been going on for 1= hours and the people of the
surrounding lands had seen the incident. She accepted that lathis and hammers
are available in all the agricultural families. The weapons said to have been
recovered were not found to be blood stained.
was the daughter of the deceased. She was examined on the same day when her
mother was examined. Presumably they came to the court together. It is,
therefore, difficult to accept that when her mother was tutored by the police,
she was not. She stated that she had been watching and counting as to how many
beatings were made by each of the accused, which is difficult to accept.
According to her the police recorded her statement at her house after a period
of 2 to 3 months of the incident. If that be so, her testimony cannot be relied
is the wife of P.W.2. She was also examined in court on the same day. According
to her, on hearing her cry for help, C.Ws. 11 and 12, who examined themselves
as P.W.14 and P.W.15, came at the spot and on seeing them the accused persons
went away in a bullock cart.
to her, the police came at 7.00 a.m. on
the next day and conducted a spot Mahazar. She also stated that she had boarded
a jeep from the outskirts of the village, wherefor she had to go on foot to the
had, allegedly, paid a sum of Rs.3/- by way of fare. Strangely, no complaint
had been lodged at her instance. According to her, she did not know the
residents of the village, although, she was a native thereof.
Maruti Kallur, was the Officer attached to Athani Police Station. Even he was
not sure when the First Information Report was lodged. There are materials to
show that it was recorded on 17th December, 1997, but he corrected the same that it was lodged on 16th December.
to the prosecution, all the accused persons were found present in the village
in a temple chit-chatting, wherefrom they were arrested. P.W.11 is the P.S.I.,
to whom P.W.5 made an oral statement that her in-laws had been assaulted. It
was reported at 3.45
p.m. The deceased
expired at 5.15 p.m. According to him, the statement of
P.W.2 was recorded in the Government hospital. It was noticed by the High Court
that he was treated at Sangli hospital. He did not say who were the assailants.
Why no statement was recorded even after the police officer came to the spot,
has not been disclosed. There is nothing to show that there has been a
requisition to send the injured for further treatment to the Sangli hospital. P.Ws.
14 and 15, who were independent witnesses, did not support the case of the
prosecution. They were declared hostile. Some suggestions only were put to
them. They were not confronted with their earlier statement. P.W.17 is the
Investing Officer. He accepted that the land in question did not belong to the
deceased and according to him possession of the land was with the Government.
He accepted habitation about 30 to 40 yards away from the place.
doctor, who had prepared the injury report of P.W.2, was not a radiologist.
X-rays of the injured were taken by some other radiologist, who had not been
examined. The learned Trial Judge noticed that the post- mortem report was
issued on 18.12.1997. X-ray reports had not been proved by the prosecution in
accordance with law. It was also noticed by the learned Trial Judge that the
Medical Officer had made a note in his letter referring the injured persons to General Hospital, Sangli. It was stated :
issue the final injury certificate to the Police and patient." If the
accused No.1 was not in possession of the lands in question, according to the
learned Trial Judge, it would give rise to a doubt as to whether the genesis of
the occurrence was correct. He has furthermore noticed that the independent
witnesses, i.e., P.Ws. 14 and 15, although arrived at the spot, did not support
the prosecution case, whereas according to P.Ws. 2 to 5, nobody had come and
they did not meet anybody. As there were 30 to 40 houses nearby, it is
improbable that nobody came to the place of occurrence. The learned trial judge
furthermore noticed that there had been a serious inconsistency in the report
of Investigation Officer to the effect that there was no house near the
occurrence place, whereas according to P.Ws. 2 to 5 agricultural lands are
surrounded by houses. Neither the prosecution has brought on record any
material to show that there was a 5th person involved in crime and an iron bar
was used. The presence of the 5th person and use of iron bar in causing injury,
which was recorded by the doctor, the learned Judge has opined, was not
explained by the prosecution.
the requisition had not been proved. P.W.18, the doctor of Sangli Hospital did not produce the requisition addressed by P.W.1, who
referred the injured persons to the said Hospital. He was known to the police
as he had been involved in criminal cases from 1990. The prosecution has not
proved to show that accused No.1 did not own any cart or oxen and had borrowed
bullocks from accused No.4, except the statement of P.W.2. Mahazar report was
also not legally proved. The learned Sessions Judge summed up his findings,
sum up this court holds that the evidence of P.Ws. 2 to 5 do not inspire
confidence in this court to come to a conclusion that they are speaking truth
before the court.
case of the prosecution found in Ex.P.7 ROR fortifies the view taken by this
court. So this court is of considered view that the prosecution has failed to
prove the charges framed against the accused. The contention of the learned
Public Prosecutor that the evidence is sufficient to convict the accused is
rejected. The contention of the advocate for the accused that a case which is
fabricated is accepted, so this court holds that the accused are entitled for
acquittal." We have noticed hereinbefore that the High Court has taken a
contrary view. Had the High Court been the first court, probably its view could
have been upheld, but it was dealing with a judgment of acquittal. We have
taken notice of the depositions of the main prosecution witnesses only to show
that the view of the learned Trial Judge cannot be said to be perverse or the
same was not possible to be taken. While dealing with a case of acquittal, it
is well known, the High Court shall not ordinarily overturn a judgment if two
views are possible. Appellant had no axe to grind. The prosecution had not
proved that he had any motive. He was only said to be the friend of accused
No.1. If the accused had gone there with six others to assault the deceased and
his family members, it is unlikely that appellant would take with him for the
said purpose, a hammer to an agricultural field.
hammer is not ordinarily used for agricultural operations. Even if we assume
that accused No.1 had been nurturing any grudge against the deceased, it is
unlikely that Appellant would be involved therein.
the reasons aforementioned, the impugned judgment of the High Court cannot be
sustained. It is set aside accordingly. The appeal is allowed. The appellant
shall be set at liberty forthwith unless he is required in any other case.