JUDGMENT
1. This is an appeal against, an acquittal preferred by the State.
2. The State being aggrieved by the order of acquittal recorded by the trial Court in S.C. No. 16/1992 dated 30-9-1997 in acquitting the accused-respondents for offences punishable under Sections 144 r/w 149, 148 r/w 149, 302 r/w 149, 326 r/w 149 and 324 r/w 149, IPC have preferred this appeal against the acquittal.
3. The case of the prosecution, in brief, as follows :
The accused are labourers residing at Kallukore village in Koppa Taluk. Accused No. 5 Sri Krishna has got a provision shop at Kallukore. On. 6-10-1991, one day prior to the occurrence P.W. 16 went to purchase some Coffee Powder and other provisions. When P.W. 16 Sri Shauna was returning Accused-5 asked P.W. 16 to pay the balance amount of Rs. 200/-. P.W. 16 replied that he owned only Rs. 60/- and on saying that P.W. 16 was walking back to his place. Accused-2, who was in the shop of accused No. 5 came behind and gave a blow with his hand on P.W. 16. This simple incident appears to be the motive for the occurrence.
4. On the next day on 7-8-1991 P.W. 16 informed this incident to P.W. 3 and P.W. 3 Sri Ithappa suggested that, he would take care of the situation. On the following day i.e. on 8-10-1991 the deceased Chandu, P.W. 1, P.W. 8, P.W. 9, P.W. 10, P.W. 14 and P.W. 15 came to the shop of accused No. 5 for purchasing the provisions. Between 4.30 and 5.00 in the afternoon, some of the witnesses who were present questioned accused-5 with respect to the assault of P.W. 16. This led to a major quarrel between the two groups.
5. It is the further case of the prosecution that there were exchange of words between the two groups and in the commotion the accused assaulted P.W. 1, P.W. 8, P.W. 15, P.W. 3, P.W. 14 and P.W. 13. It is the case of the prosecution that the accused were armed with iron rods and clubs. Chandu, who is injured in the incident died in the Hospital. The other injured witnesseswere shifted to Balehonnur Hospital for treatment.
6. P.W. 1 Sri Sundara, who was also assaulted by the accused, gave a complaint to the Police as per Ex. P1.
7. There are three vital aspects in this case which proved fatal to the prosecution.
(1) One was that all the injured witnesses did not support the, case of the prosecution.
(2) The injuries suffered by the accused were never explained by the prosecution. (3) Ex.P1 the complaint given by P.W. 1 in Crime No. 75/1991 at 7.30 EM. within half an hour. Accused No. 5 gave the counter-complaint against the prosecution party in Crime No. 76/1991 at 8.00 P.M. and there was no explanation forthcoming from the prosecution as to what happened to the counter-complaint given by accused No. 5.
8. We shall briefly deal with the evidence of P.W. 1. P.W. 1 in his evidence categorically states that there were exchange of words between two groups and P.W. 1 went to pacify them and accused 1 assaulted P.W. 1 on the head. Accused No. 5 R, Krishna also assaulted P.W. 1. P. W. 1 does not speak about for the overt-acts on the deceased. He merely states that the deceased died due to assault. He further states that he was treated by the Balehonnur Hospital and was sent to the Police Station and he gave an oral complaint which is marked before the Court as Ex. P-1. He was an inpatient at the Chickmanglur Hospital for one month. He, however, states later on that the deceased was assaulted by accused No. 3. He again slips-up by saying that he does not remember what weapons the accused used while assaulting the injured. In the cross-examination, P.W. 1 says that he did not tell the Police that accused No. 3 assaulted the deceased. Curiously, this witness says that when he was taken to the Police Station, he was not fully conscious and when he was examined by the Doctor, he told the Doctor that he did not know who assaulted him.
9. P.W. 2, who was an eye-witness, did not support the case of the prosecution and was treated hostile. Nothing much was elicited in the cross-examination which inspires confidence in the evidence of P.W. 2.
10. P.W. 13 Sri Rama Poojari partially supports the case of the prosecution in examination-in-chief. However, in the cross-examination, he states that two groups were assaulting each other. He states that he cannot say as to which of them assaulted which person. He further states that in the commotion, accused 1, accused 5 and accused 13 had sustained injuries and were admitted to Hospital. In his evidence, P.W. 3 Sri Ithappa states that there were about 40 persons and further states that by the time he came to the scene of occurrence, the deceased had already fallen to the ground. P.W. 3 cannot really advance the case of the prosecution since he has admitted that there was a free fight between two groups and in the free fight accused 1, accused 5 and accused 13 had sustained injuries.
11. The evidence of P.W. 4 Vijaya Kumar is of no consequence since he is only a mahazar witness.
12. P.W. 5 Seetharamu is an eye-witness. In the examination-in-chief he speaks about the occurrence in vague terms. He states that he rushed to the scene of occurrence after hearing commotion. He does not speak anything about the assault on the deceased. In the cross-examination, he states that when he went near the scene of occurrence, he saw the deceased having sustained bleeding injuries and he was found lying on the ground. He does not identify who has assaulted the deceased. He, however, says in the commotion that accused 1, accused 5 and accused 13 had sustained injuries. He also stated that he does not know how the deceased and the Other witnesses sustained injuries. This witness has practically resiled from his statement to the Police. However, he was not treated hostile.
13. P.W. 8 Kokila Babu, who claims to be an eye-witness did not support the case of the prosecution. Nothing useful was elicited in the cross-examination by the State. The evidence of P.W. 9 Karunakara also suffers the same fate. He claims to be an eyewitness. However, when he examined-in-chief, he did not support the case of the prosecution.
14. P.W. 10 Thumbe, who claims to be an eye-witness also did not support the case of the prosecution.
15. P.W. 11 is Dr. M. Hanumantha Rayappa, who examined the deceased. He stated that the deceased was unconscious.
16. P.W. 13 Rama Poojary, who claims to be an eye-witness also did not support the case of the prosecution and nothing much was elicited in the cross-examination. The same is the case of P.W. 14, who is an eye-witness, but did not support the case of the prosecution.
17. P.W. 15 Ratnakara is an eye-witness also did not support the case of the prosecution.
18. P.W. 17 Dr. K.G. Srinivas is the Doctor conducted the P. M. examination on the dead body. He found the following injuries:–
“Subgalcal Haematoms extending from right frontal region to right Parieto-temporal region. Over the skull Stellate fracture of right frontal bone extending on to right temporal bone below and right paneto-temporal suture line and crossing over the sagital suture. An area of 2″ x 11/2” size, depressed fracture present.
MEMBRANCE: 11/2″ X 1″ dural laceration underneath the depressed fracture present. Extra dural Haemotoms of 8″ x 6″ present over the temporal right frontal region and it sperm in consistency.
BRAIN: Corresponding to dural laceration 1″ x 1/2″ area of temporal lobe laceration present. The right Hemisphere was compressed by Haematome.”
He’opined that the injuries were sufficient, in the ordinary course of nature to cause the death.
19. P.W. 23 S. P. Pasha is the Investigating Officer. He states in his evidence that he received the Wound Certificate of Accused 1 (Ex. D3), Accused 5 (Ex. D4), Accused 13 (Ex. D5). He also admits that there was a counter case filed by the accused which was registered in Crime No: 76 of 91.
20. Perhaps some light can be thrown on this case by the evidence of P.W. 24 the Doctor. He refers to the injuries caused on P.W. 9 and states that the injuries were simple in nature. P.W. 24 also refers to the injuries caused on Accused 1 which reads as follows :–
“Incised wound present vertically over the middle of fore-head measuring 5 cms x 2 cms. Wound is fresh and bleeding.
Incised wound present horizontally over the middle of the fore-head. Upper side measuring 1 inch x 1/4 inch. Wound is fresh and bleeding.
Incised wound present over the right lower eye lid measuring 1/4 inch x 2 cms x 2 cms. Horizontally wound is fresh and bleeding.”
All the injuries according to him are simple in nature.
21. The injuries on Accused 5 are as follows:–
“Incised wound present behind the right ear over the Mastoid process measuring 1/4 inches x 2 cms x 2 cms.
Incised wound present horizontally over the middle of the pinna of right ear measuring 1/2 inches x 2 cms x 2 cms.
Abrasions present over the right tragous of ear measuring 2 cms x 2 cms.”
All the injuries are fresh and bleeding.
22. Accused No. 3 has also sustained some injuries and the injuries are simple in nature. Among the Prosecution. Witnesses, P.W. 9 suffered simple Injuries. P.W. 1 also suffered simple Injuries. P.W. 10 suffered grievous injuries with a suspected fracture of the upper forearm bones. P.W. 14 also suffered injury with tenderness over the left chest. P.W. 13 also suffered simple injuries. P.W. 8 had an abrasion over the vertex measuring 4 cms x 3 cms and injury simple in nature.
23. P.W. 24 Dr. N. Ramachandra has stated that the injuries found on Accused 1. Accused 5, Accused 13 and Accused 3 could be caused by clubs and with sharp edged weapons.
24. Unfortunately in this case none of the injured witnesses support the prosecution case. Some of the injured witnesses turned hostile in cross-examination and some of the injured witnesses totally resiled from the statements recorded under Section 161, Cr. P. C. None of the eye-witnesses speak under what circumstances the accused sustained injuries. Equally, none of the eye-witnesses speak about the attack on the deceased except P.W. 1.
25. P.W. 1 does not fully support the prosecution. On one hand he states that accused 3 assaulted the deceased. Yet on the other hand, he states that he did not tell the Police that Accused No. 3 assaulted the deceased. He further states that when he was taken to the Police Station, he was not fully conscious and when he was examined by the Doctor he states that he did not know who assaulted him. Apart from this piece of evidence of P.W. 1 no other witness supported the prosecution.
26. The evidence of P.W. 22 H. B. Mallikarjunappa throws some light on the case of the prosecution. P.W. 22 is the Station House Officer of the Police Station of Balehonnur. He states that P.W. 1 appeared before him on 8-10-1991 at 7:30 p.m. and lodged a complaint with respect to the occurrence which took place at 5:00 p.m. He registered a case in Crime No. 75 of 1991. Within half an hour at 8:00 p.m. he states that Accused No. 5 gave a complaint in Crime No. 76 of 1991 against the prosecution party with respect to the injuries suffered by the accused. P.W. 22 also states that he sent Accused 1, Accused 5 and Accused 13 to the Hospital for treatment.
27. The Prosecution has not placed any material before the trial Court as to what happened to the counter case given by accused Number 5. As stated earlier, the complaint was given half an hour after the first complaint. No prosecution witness has chosen to explain to the injuries on the deceased. As stated earlier, in fact, the eyewitnesses have turned hostile.
28. It is difficult for this Court in the case of a free fight between two parties to know who was the aggressor and who was the victim. There is some material to show that it is the prosecution party who cause to the provision store of Accused No. 5 Krishna. Perhaps, the prosecution party had deadly weapons and this can be seen from the nature of the injuries on the accused. The trial Court, on the totality of circumstances, was pleased to acquit the accused and there are no compelling materials on record to interfere with the findings of the trial Court.
29. Smt. Namitha, the learned Counsel appearing for the respondents, relied on the often quoted judgment of Lakshmi’s case and also placed reliance in the case of Tikaram and Sons Ltd. v. Commissioner of Sales Tax, U. P., AIR 1958 SC 1286; Gooti Sannaiah v. State of Karnataka, (1976) 1 Kant LJ 10 : (1976 Cri LJ 154) and State of Karnataka v. Siddegowda, ILR (1999) Karnataka 3373 : (1999 Cri LJ 3819).
30. In this case, as submitted by the learned Counsel for the accused-respondents there appears to be considerable doubt with regard to the genesis of the case and very little is known about the counter case filed by the accused party. Apart from, everything else, all the eye-witnesses including the injured did not support, prosecution case.
31. It is settled law that Courts will not interfere in an order of acquittal rendered by the trial Court unless for compelling reasons and only in those cases where the judgment is perverse and based on irrelevant materials.
32. We do not think this is one such case which requires interference at our hands in an appeal against acquittal.