1 [CASE NUMBER] IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 19TH DAY OF AUGUST, 2019 BEFORE THE HON'BLE MRS. JUSTICE K.S.MUDAGAL CRIMINAL REVISION PETITION NO.200012/2015 BETWEEN: 01. AMALLAPPA S/O BHEEMANNA HOSMANI AGE: 46 YEARS OCC: AANANDESHWAR NAGAR JEWARGI ROAD, GULBARGA 02. SHANTAMMA W/O AMALLAPPA HOSMANI AGE: 41 YEARS R/O: AANANDESHWAR NAGAR JEWARGI ROAD, GULBARGA. 03. ANIL @ ANILKUMAR S/O TUKARAM DEVARMANI AGE: 39 YEARS OCC: AANANDESHWAR NAGAR JEWARGI ROAD, GULBARGA. 04. PANDURANGA @ PANDIT S/O MALLAPPA HEDARI AGE: 42 YEARS OCC: AANANDESHWAR NAGAR JEWARGI ROAD, GULBARGA. PETITIONERS (BY SRI MARUTI GAONKARE AND SRI KANTEPPA HULEPPA HEROOR ADVOCATES) AND: 2 [CASE NUMBER] 01. THE STATE OF KARNATAKA THROUGH GANDHI GUNJ P.S. BIDAR. 02. MADHAMATI W/O TUKARAM AGE: 40 YEARS OCC: HOUSEHOLD C/O: SANT KABIR EDUCATION SOCIETIES SCHOOL R/O: YADGIRI DIST: YADGIRI. RESPONDENTS (BY SRI.MALLIKARJUN SAHUKAR HCGP FOR R-1 SRI.K.B.RAO & SRI.S.B.DESHMUKH FOR R-2) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH SECTION 401 OF CRIMINAL PROCEDURE CODE PRAYING TO ALLOW THE REVISION PETITION OF PETITIONERS AND SET- ASIDE THE ORDER PASSED BY THE PRL. DISTRICT AND SESSION JUDGE BIDAR IN CRIMINAL APPEAL NO.20/2014 DATED 02.01.2015 AND RESTORE THE JUDGMENT IN [CASE NUMBER] PASSED BY THE PRL. JMFC COURT AT BIDAR AND ETC., THIS REVISION PETITION IS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING: 3 [CASE NUMBER] ORDER
"Whether impugned order of conviction and sentence dated 02.01.2015 passed by the Prl. District and Sessions Judge, at Bidar in [CASE NUMBER] against the petitioners suffers illegality?" is the question involved in this case.
2. Petitioners were tried in [CASE NUMBER] on the file of Prl. J.M.F.C., II Bidar on the basis of complaint of second respondent in [CASE NUMBER] of Gandhi Gunj Police Station Bidar, for the offences punishable under [SECTION], [SECTION], [SECTION], [SECTION] [ACT].
3. Case of the prosecution in brief is as follows:
PWs.1 and 8 are the wife and husband. PW.4 is the brother and PW.5 is the mother of PW.1. One [ENTITY] Editor of Versa Kannada Weekly Magazine had published defamatory article against PW.8. Therefore, he had filed complaint against the said [ENTITY] in Gulabarga Court.
The accused were associates of [ENTITY].
Being enraged for filing the said complaint, they trespassed into house of PW.5 on 08.08.2007 at 10.00 p.m. abused PW.1 in foul language and assaulted her.
When PWs.4 and 5 came to her rescue, they abused them and assaulted them also. At that time neighbors CWs.6 and 8 rushed to the spot and accused left the spot threatening the victims.
4. The trial Court on conducting trial and hearing the parties on 19.03.2014 acquitted the accused. Respondent No.2/complainant challenged the said order of acquittal before Prl. District and Sessions Court Bidar in [CASE NUMBER]. The first appellate Court by impugned order dated 02.01.2015 reversed judgment of the trial Court and convicted the accused/petitioners for the offences punishable under [SECTION], [SECTION], [SECTION], [SECTION] [ACT] and sentenced them for simple imprisonment of 03 months for the said offences.
5. Challenging the said order of conviction and sentence, the petitioners have preferred above petition. The complainant also preferred [CASE NUMBER] challenging the adequacy of the sentence. This Court vide order dated 19.12.2018 dismissed both the petitions holding that there are no grounds to interfere with the orders of first appellate Court.
6. In the said order it was recorded that, counsel for the accused/petitioners did not turn up to argue the matter. Accused challenged the order of this Court in [CASE NUMBER], before the Hon'ble Supreme Court in [CASE NUMBER] (arising out of [CASE NUMBER]). The Hon'ble Supreme Court on hearing the parties, set-aside the order of this Court in [CASE NUMBER] and remanded the matter to this Court for fresh disposal on hearing the parties.
7. Respondent No.2 - complainant did not challenge the dismissal of her petition i.e., [CASE NUMBER]. Therefore, the said order attained finality.
8. The case is based on the evidences of :-
i) Injured eyewitnesses PW.Nos.1, 4 and 5,
ii) Alleged eyewitnesses PW.6 and 8,
iii) Circumstance of motive and evidence of PW.7 to that effect and
iv) Evidence of I.Os. PWs.10 and 11.
9. The trial Court acquitted the accused on the ground that:-
i) The evidence of injured/eyewitnesses, PWs.1, 4 and 5 and eyewitnesses PWs.6 and 8 is full embellishment & blame worthy;
ii) There was delay in filing the complaint and explanation to the same was not acceptable; and
iii) The Investigating Officer did not collect any material in proof of the alleged motive and that the accused were the associates of [ENTITY].
10. However the first appellate Court reversed the findings of the trial Court, convicted and sentenced the accused on the following grounds;
i) The evidence of PW.s 1, 4, 5, 6 & 8 is not impeached and that is trust-worthy;
ii) Merely because PW.s 4 & 5 are relatives of PW.1, their evidence should not have been discarded;
iii) There is nothing to disbelieve the evidence of PW.s 1, 4, 5, 6 & 8;
iv) Delay in filing the complaint was satisfactorily explained.
11. The prosecution had the burden of proving presence of accused, PWs,1, 4, 5, 6 & 8 at the scene of offence at the time of alleged offence. The scene of offence is the house of PW.5 situated at Haq Colony Bidar Town.
12. According to the prosecution, the prime target of the crime was PW.1 and not PW.s 4 & 5. As per the complainant as well as prosecution, the accused were ordinary residents of Gulbarga. PW.1 in her cross- examination in unequivocal terms admitted that, she was residing at Yadgir and was working in an Educational Institution called 'Sant Kabirdas Institution' which was run by PW.8. She has stated in her cross-examination that, she doesn't know where the accused resides.
13. PW.5 the mother of PW.1, in her cross- examination admits that, PW.1 was residing in Yadgir since 10 years. Her evidence was recorded on 08-02- 2013. Therefore, as per her evidence, PW.1 was residing in Yadgir since the year 2003. The alleged incident took place on 08-08-2007. Haq Colony was neither ordinary residence of PW.1, nor that of the accused.
14. Except the oral testimony of PW.s1, 4 to 6 & 8 there was no other evidence to prove the presence of the accused and PW.1 at the scene of offence. Under such circumstances, the prosecution was expected to prove what was the special reason for PW.1 to be present on that day in Yadgir and how the accused gained the knowledge of her presence as they could come there, only if they were aware of that. There was four days delay in filing the complaint. PW.5 in her cross-examination stated that she has not given any statement before the police and she is giving evidence at the behest of her daughter and to her tunes.
15. According to the accused, PW.7 and the accused belonged to, Republic Party of India a political party. It was their further defence that, PW.7 was terminated from the post of President of the said party and in that place accused No.1 was appointed as the District President and accused No.4 was appointed as Prl. Secretary and being enraged by that PW.7 set up PW.1 to file the complaint with a fabricated story.
16. PW.7 in his cross-examination admits that, himself and accused belonged to the said political party. It has come in the evidence that, PW.8 had a wife living in Gulbarga and during subsistence of such marriage, he had married PW.1. He has admitted in his cross- examination that, PW.1 was residing in Yadgir though he states that, she was residing in Bidar as well.
17. It has come in the evidence that, the police station is two furlong away from the alleged scene of offence. It has come in the evidence that, PW.1 was educated person. She was serving in Educational Institution. But she took four days in filing the complaint. According to complaint and PW.1, since PW.7 was not in town, she took time to consult him to file the complaint.
18. In the complainant, and evidence of PW.1 it is not stated that, PW.7 at that time was in Bangalore and that lead to delay. PW.7 states that, when the incident took place he was in Bangalore, thereafter he came to Bidar and they discussed the matter and filed the complaint, therefore there was delay. The story of he being in Bangalore is total improvement in the evidence.
19. The complainant and alleged victims PW.s, 1, 4 & 5 did not undergo any medical examination in proof of assault. No evidence was adduced to show that the accused were associates of [ENTITY]. Taking into consideration all these aspects, the trial Court found the evidence of PWs, 1, 4 & 5 blame-worthy and their evidence needed appropriate corroboration.
20. The only evidence to corroborate the evidence of PW.s 1, 4 & 5 was that of alleged neighbors PW.s 6 & 8. When the complaint itself was filed after four days of the incident, PW.s 6 & 8 state that the police came to the scene of offence on the same night and they gave statement before the police. They claimed that they were residing in the house adjacent to the scene of offence on rental basis and on hearing commotion they rushed to the spot and found the accused. But they were not able to spell the names of their landlords.
21. One among the eyewitnesses said that the incident occurred infront of the house of PW.5, the other one said that the incident occurred inside the house and it was dark at that time. According to PW.s 1, 4 & 5 the incident occurred inside the house. The trial Court considering these aspects doubted the presence of PW.s 6 & 8 at the scene of offence and they being the eye-witnesses.
22. Similarly the trial Court considering the evidence of PW.1, 4 & 5 found that the accused were not previously aquatinted with them and they identifying the accused during night time in their house was unacceptable. Though the trial Court did not reject their evidence on the ground that they being the relatives of each other, the first appellate Court observed that the trial Court has rejected their evidence on the ground of they being the blood relatives and interested witnesses.
23. Under the circumstances as rightly held by the trial Court to corroborate the evidence of PW.s 1, 4 to 8 regarding motive and the incident was required. But the prosecution had not collected any particulars of the alleged news publication or the case filed by PW.8 against [ENTITY] or the accused being the associates of [ENTITY]. Under these circumstances the delay in filing the complaint assumes significance and needs proper explanation.
24. The Hon'ble Supreme Court in [PRECEDENT] held that when there were contradictions, inconsistencies, exaggerations or embellishments, that was enough to doubt prosecution case. It was further held that, when the trial Court recorded the acquittal based on meticulous examination of the evidence on record, the appellate Court should not interfere with such finding.
25. In [PRECEDENT] the Hon'ble Supreme Court held as follows:-
"8. In criminal trial one of the cardinal principles for the Court is to look for the plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complainant and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished version of the case to be presented before the Court at the earliest instance. That is why if there is delay in either coming before the police or before the Court, the courts always view the allegations with suspicion and look for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case. In [PRECEDENT], it was held that the delay in lodging the first information report quite often results in embellishment as a result of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In [PRECEDENT] the position was explained that whether the delay is so long as to throw a cloud of suspicion on the seeds of the prosecution case must depend upon a variety of factors which would vary from case to case. Even a long delay can be condoned if the witnesses have no motive for implicating the accused and/or when plausible explanation is offered for the same. On the other hand, prompt filing of the report is not an unmistakable guarantee of the truthfulness or authenticity of the version of the prosecution.
26. Thus it is clear that, when there is embellishment in the evidence of prosecution, the delay in filing the complaint assumes significance as delay affords opportunities to the complainant to make deliberations upon the complaint and courts shall look for satisfactory explanation for such delay. The same view was taken in another Judgment in [PRECEDENT] wherein the Hon'ble Supreme Court held that, 'delay in lodging the FIR quite often results in embellishment which is a creature of after-thought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation .
(Emphasis Supplied)
27. It was the defense of the accused that they were residents of Kalaburagi and story was concocted for the crime in Yadagir only to harass them by dragging them into a criminal case in Yadgir jurisdiction. The first appellate Court was expected to re-appreciate the evidence in the light of observations made above and the precedents of the Hon'ble Supreme Court referred to above.
28. When the trial Court has not framed the charge under [SECTION] [ACT], the first appellate Court convicted the accused for the offence punishable under [SECTION] [ACT] also. That shows the total non- application of mind by the first appellate Court.
29. In the light of such glaring embellishment, mutual contradictions, the first appellate Court was not right in reversing the acquittal recorded by the trial Court on meticulous appreciation of the evidence. Therefore, the impugned order of conviction and sentence passed by the first appellate Court suffers impropriety and illegality warranting interference of this Court.
Therefore, the criminal revision petition is allowed. The impugned Judgment and order dated: 02-01-2015 passed by Prl. District & Sessions Judge, Bidar in [CASE NUMBER] is hereby set aside. The order of acquittal recorded by the trial Court is restored.
JUDGE [ENTITY]/MWS