IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B. A. PATIL CRIMINAL APPEAL No.7/2019 c/w CRIMINAL APPEAL No.1808/2018 Crl.A No.7/2019:
BETWEEN:
Jayashankara s/o Puttalingaiah aged about 32 years r/o Hondarabalu village Chamarajanagar Pincode – 571313. .. Appellant (By Sri Somashekar Kashimath, Advocate) AND 1. Mahesha s/o Mahadevaiah aged about 32 years.
2. Smt.Mallajamma w/o Mahadevaiah aged about 61 years.
3. Smt.Jayalakshmamma w/o Puttaiah Aged about 60 years.
Respondents No.1 to 3 All r/o Hondarabalu village Chamarajanagar – 571313.
4. The State of Karnataka Through East Police Station Chamarajanagar Taluk Represented by SPP High Court of Karnataka Bengaluru-560001. .. Respondents (By Sri J Prakash, Advocate for R1 to 3, Sri Vijayakumar Majage, Additional SPP for R4) This criminal appeal is filed under Section 372 of Cr.PC praying to set aside the order of acquittal dated 1.10.2018 passed by the Additional District and Sessions Judge, Chamarajanagara (sitting at Kollegala) in SC No.5174/2018, acquitting the respondents/ accused for the offence P/U/S 323, 324 and 504 r/w 34 of IPC.
Crl.A No.1808/2018: BETWEEN:
1. Puttalingaiah s/o late Mallaiah aged about 62 years.
2. Jayashankara s/o Puttalingaiah aged about 32 years. (Now in JC) 3. Somanna s/o late Mallaiah Aged about 46 years (Now in JC) r/o Hondarabalu village Chamarajanagar Pincode – 571313. .. Appellants (By Sri Somashekar Kashimath, Advocate) And The State of Karnataka Through East Police Station Chamarajanagar Represented by SPP High Court of Karnataka Bengaluru-560001. .. Respondent (By Sri Vijayakumar Majage, Additional SPP) This criminal appeal is filed under Section 374(2) of Cr.PC praying to set aside the judgment and order of conviction and sentence dated 1.10.2018 passed by the Additional District and Sessions Judge, Chamarajanagara (sitting at Kollegala) in SC No.106/2013, convicting the appellants/accused Nos.1 to 3 for the offence P/U/S 447, 504 and 307 r/w 34 of IPC.
These appeals coming on for orders this day, the Court delivered the following:-
JUDGMENT Crl.A No.7/2019 has been preferred by the complainant/appellant challenging the judgment and order of acquittal passed by the learned Additional District and Sessions Judge, Chamarajanagar sitting at Kollegal in SC No.5174/2018 dated 1.10.2018.
2. Crl.A No.1808/2018 has been preferred by accused Nos.1 to 3 challenging the judgment and order of conviction and sentence passed by the learned Additional District and Sessions Judge, Chamarajanagar, sitting at Kollegal in SC No.106/2013 dated 1.10.2018.
3. I have heard the learned counsel for the appellant in both the cases, learned counsel for respondents/ accused and learned Additional Special Public Prosecutor in both the cases.
4. The brief facts of the case of the prosecution in SC No.5174/2018 are that on 5.8.2012 at about 10.30 a.m., accused Nos.1 to 3 with a common intention to till their land destroyed/damaged the standing ginger crop in the land belonging to CW2 by driving tractor on the said land. When complainant questioned the said act of the accused persons, accused persons abruptly started abusing in filthy language and thereafter accused No.1 assaulted CW1 on the left side on his head with an iron rod, as a result of the same, he sustained bleeding injuries and when CW2 came to rescue of CW1, accused No.1 assaulted him with the same iron rod on his left shoulder and accused No.2 assaulted CW1 with a sickle on right shoulder and caused simple injuries. Thereafter, accused No.3 by holding the shirt of CW2 assaulted him with her hands and kicked leg and thereafter pushed him on the ground and thereby they have committed the alleged offences. On the basis of the complaint, a complaint has been registered and after investigation, charge sheet was laid against the accused for the offences punishable under Sections 323, 324, 504 read with Section 34 of IPC.
5. The facts in SC No.106/2013 are that on 5.8.2012 at about 11.30 a.m, in Sy.No.167/3, accused persons picked up a quarrel with CWs.1 to 3 and assaulted them with chopper, iron rod and club and as a result of the same, they sustained grievous injuries and complaint was registered. On the basis of the said complaint and after investigation, charge sheet was filed for the offences punishable under Sections 447, 504, 307 read with Section 34 of IPC.
6. It is the contention of the learned counsel for the appellant/complainant that the judgment and order of acquittal passed by the Court below is contrary to law and the evidence on record. The Trial Court has not appreciated the evidence of eye witnesses. Though they have categorically deposed before the Court about the assault committed by the accused persons and inspite of that, the Trial Court has erroneously acquitted the accused. It is his further submission that the learned Sessions Judge ought to have called the entire file pending in CC No.78/2013 and without taking into consideration of the same, the evidence in SC No.106/2013 was recorded and thereafter the records were called and both the cases have been disposed of erroneously. It is his further submission that the Investigating Officer in both the cases is one and the same and the Prosecutor who conducted the case is also one and the same and without following the procedure as laid down by this Court in the case of Gooti Sannaiah & ors. –vs- State of Karnataka reported in 1976(1) Kar.LJ 10, the said order of acquittal has been passed. It is his further submission that two sessions cases are recorded the same occurrence, then the procedure to be tried the earlier case to its conclusion and then took up the second case and tried its conclusion. The said procedure has not been followed by the learned Sessions Judge. It is his further submission that the learned Sessions Judge without looking into the evidence and material on record has come to the wrong conclusion and wrongly acquitted the accused. On these grounds, he prays to allow the appeal filed by the complainant and convict the accused and sentence in accordance with law.
7. It is the submission of the learned counsel for the accused/appellants in Crl.A No.1808/2018 that the learned Sessions Judge has not appreciated the evidence of PWs.1 to 3. PWs.1 to 3 have categorically deposed that there were civil disputes between the parties and only because of earlier incident, the second complaint has been registered. It is his further submission that the injured have been taken to a private hospital and no document has been produced to show that where exactly they have taken treatment and the doctor, who has been cited as a prosecution witness, has not been examined for the reason best known to prosecution. It is his further submission that even though the Investigating Officer, who conducted the investigation has not been examined, the Trial Court erroneously acquitted the accused though there is material. It is his further submission that the evidence and material produced before Court goes to show that the injured persons have been got discharged against the medical advise at their own request, then that itself goes to show that they have not sustained any serious injuries. It is his further submission that the evidence and material and other independent witnesses have not supported the case of the prosecution and only on the interested testimony of PWs.1 to 3, the Trial Court has convicted the accused. On these grounds, he prays to allow the appeal and acquit accused Nos.1 to 3 by setting aside the impugned judgment and order of sentence and conviction.
8. Per contra, learned counsel appearing for respondents No.1 to 3 vehemently argued and submitted that the civil dispute is not in dispute and the Trial Court, after considering the material placed on record, has come to the conclusion that there is tampering of documents by the accused persons and they have tampered Ex.P1; that there is clear over- writing of crime number that itself clearly goes to show that only to create a document to overcome the earlier complaint, which has been filed by the respondents – accused; such a document has been created. Taking into account the said fact, the Trial Court has doubted the case of the complainant and has rightly acquitted the accused. It is his further submission that the documents produced clearly go to show that the said incident is not a case made out by the complainant and in the counter case, they have sustained serious injuries and that they have been got admitted in the hospital and discharge summary and other material go to show that they have been hospitalized for a period of more than 10 to 12 days. It is his further submission that the perusal of the records, it indicates that the case has been concocted and created. On these grounds, he prays that the Trial Court after appreciating the said facts has come to the right conclusion and rightly acquitted the accused. There are no grounds to interfere with the judgment of the Trial Court.
9. In connected case, it is his further submission that PWs.1 to 3 are injured eye witnesses and they have categorically deposed before Court about the overtact committed by the accused person. They have brutally assaulted PWs.1 to 3 and that they have caused grievous injuries with an intention to cause death. Taking into consideration the said aspect, the evidence has been believed and the accused persons have been rightly convicted. There are no good grounds to interfere with the judgment and order of conviction and sentence.
10. Learned Additional SPP vehemently argued and submitted that the connected case was completely conducted by the learned Magistrate. When the matter was posted for defence evidence, the case was got transferred from learned Magistrate and new number was given as SC No.5174/2018 since the evidence was completed. Learned Sessions Judge only recorded 313 statement of accused and thereafter proceeded to decide the case. It is his further submission that even if there is some lack city, it is only irregularity and no prejudice has been caused to the accused or complainant. It is his further submission that merely, because some irregularity, it is not go to the root of the case. It is further submission that the evidence produced by the prosecution clearly goes to show that PW1 is the owner of the land and accused No.1, who has come over there, assaulted with rod and subsequently when PWs.2 and 3 came there, they have been assaulted and caused grievous injuries. All the materials produced clearly go to show that the accused persons have assaulted the injured and caused grievous injuries with an intention to cause death. Taking all the materials, the Trial Court has rightly come to the conclusion and has rightly convicted the accused. There are no good grounds to interfere with the judgment of the Trial Court. The judgment of Trial Court deserves to be confirmed. On these grounds, he prays to dismiss the appeal filed by the accused persons.
11. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records including the trial Court records, which have been secured.
12. On close reading of the records pertaining to both the cases, both the parties in both the cases have proceeded with premise that it is a case and counter case. Even the learned Sessions Judge has also proceeded under the impression that the case and counter case, but actually if factual matrix is taken into consideration the first incident has taken place on 5.8.2012 at 10.30 a.m. and the second incident has taken place on the same day at 11.30 a.m. Even the material evidence produced by the prosecution does not reveal the fact that under continuation of earlier incident, the second incident has taken place. Immediately after the first incident, the second incident has taken place. Under such circumstances, it amounts to nothing but the case and counter case. But in the absence of material, it appears to be the fact that neither the learned Sessions Judge nor the parties have applied their mind to the facts of the case and have proceeded as if it is a case and counter case. Even the complainant has filed an application to bring the records pending before the learned Sessions Judge that too after recording the evidence of all the witnesses and without application of mind, learned Sessions Judge has called the records and decided the case as if it is a case and counter case. Be that as it may, learned Sessions Judge taken a case and counter case. Under such circumstances, the duty cast upon him to follow the procedure to try the case and counter case. If it is a case and counter case, the procedure to be adopted in case and counter case, the investigation should be conducted by the same Investigating Officer and prosecution should be conducted by two different prosecutors and the trial should be conducted by the same court and after recording the evidence, every hearing date, evidence and arguments, the judgment should be referred in one case and thereafter the evidence should be recorded and arguments should be heard in other case. During the course of argument, learned Additional SPP by referring to Section 455 of Cr.PC contended that the said defect is curable defect and if any error or omission or irregularity or infraction of procedural law committed by the Court of competent jurisdiction, then it is not considered to be going to root, prejudice would be caused to the accused. But the procedure adopted by the learned Trial Judge while proceeding with trial has occasioned the failure of justice, then the said irregularity in procedure adopted by the learned Sessions Judge is going to vitiate the entire proceedings. The proposition of law has been laid down by a larger Bench of this Court in the case of State of Karnataka, by Circle Inspector of Police –vs- Hosakeri Ningappa and another reported in ILR 2012 Kar. 509 at paras-13 and 14, it has to be observed as under:
“13. Section 465 of the Code is intended to cure any error, omission, irregularity or infraction of procedural law committed by the Court of competent jurisdiction, unless such irregularity or illegality has in fact occasioned a failure of justice. The object of the Section is to secure justice by preventing the invalidation of a trial held on the ground of technical breaches of any provisions of the Code causing no prejudice to be accused. The intention is to eliminate all possibilities of acquittal of persons committing offences except on the merits. The procedural laws are designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along with certain well established and well understood principles that accord with our notions of natural justice. If there are substantial compliance with the requirements of law providing the accused a full and fair trial in accordance with principles of natural justice, n o order of a competent Court should be reversed or altered in appeal or revision on account of a procedural irregularity unless the same results in miscarriage of justice. The procedural laws are designed to subserve the ends of justice and not to frustrate them. The test to be applied is whether the accused had a fair trial in spite of the transgression of the prescribed rule or procedure. In judging the question of prejudice, Courts must act with a broad vision and look to the substance and not to technicalities and their main concern should be to see whether the accused had a fair trial; whether he knew that he was being tried for; whether the main facts sought to be established against him were explained to him fairly and clearly; and whether he was given a full and fair chance to defend himself.
14. In our considered opinion, in each case, it has to be decided on merits based on the facts and circumstances of that case, as to whether the irregularity I the procedure adopted by the Trial Judge while proceeding with the trial has occasioned failure of justice or not. If the irregularity in procedure adopted by the Sessions Court has occasioned failure of justice, then only the proceedings vitiate. Otherwise, not.”
13. Even the decision of the Hon’ble Apex Court in the case of State of Karnataka by Circle inspector of Police quoted supra has observed that irregular procedure adopted by the trial Court has caused prejudice to the accused and has occasioned failure of justice, the proceeding and the trial vitiates. Otherwise, they are going to protect under Section 465 of Cr.P.C at para No.18 of the said decision that it has been observed as under:
“18. In view of the foregoing reasons, we answer the points referred to us as under:
(a) If the case and counter case are not tried simultaneously as held by the Supreme Court in the case of Nathi Lal v. State of U.P (Supra) and in the case of Sudhir v. State of M.P. (Supra) the proceedings ipso facto do not get vitiated. But, where the irregular procedure adopted by the Trial Court has caused prejudice to the accused and has occasioned failure of justice, the proceeding and the trial vitiates. Otherwise, the proceedings are protected under Section 465 of the Code.
(b) The evidence recorded in one case cannot be looked into in the other case. The Trial Judge can only rely upon the evidence recorded in that particular case and the evidence recorded in the cross case cannot be looked into. Each case must be decided on the basis of the evidence which has been placed on record in that particular case. However, if the evidence recorded in one case is brought on record in accordance with procedure known to law in the other case, then, such evidence which is legally brought on record can be looked into. Otherwise, the evidence recorded in one case cannot be looked into in the other case.
(c) If the trial Court disposes of the case and counter case on different dates acquitting the accused therein and no appeal is preferred in one of the cases and the appeal is preferred in the case decided later, the proceedings in the later case do not automatically get vitiated. Each case has to be judged on its own merits. Unless prejudice is shown to have been caused to the accused, the proceedings in the later case do not get vitiated.”
14. By going through the said decision quoted supra, one point is very clear that the procedure adopted if it is an error, omission or irregularity, if no prejudice has been caused to the accused, then under such circumstances, the Court can interfere as otherwise it will not. On close reading of the records produced by the prosecution and the accused it indicates that the learned Sessions Judge while passing an order in S.C No.106/2013 at page No.17 has observed that the said act of the accused is corroborated with the D-Series documents marked in the connected case i.e., in S.C No.5174/2018. More so, wherein Exs.D11, 12 and 13 are the photographs of the accused Nos.1 to 3 for having sustained cut/bleeding injuries. Ex.P7 is the discharge summary of Mallajamma for having obtained treatment at Cauvery Hospital, Mysore between 5.8.2012 to 8.8.2012 and Ex.D5 is the newspaper cutting in three Kannada newspapers editions with photographs of the accused persons herein for having sustained injuries in tussle. Exs.D8, D9 and D10 are the discharge card-cum- identity card of the accused persons for having taken treatment as inpatients in K.R Hospital, Mysore between 8.8.2012 and 15.8.2012.
15. Coupled with this, the order sheet in S.C No.5174/2018 dated 05.08.2018 indicates that the learned counsel for the accused has submitted that DW.1-Mahesh is already examined as PW3 in connected S.C.No.106/2013 and PW-3 is also subjected to cross- examination. Hence similar evidence of PW.3 and DW.1 is already on record in S.C No.106/2013 the same may be relied upon and the same may be taken on record.
16. By going through all the records it indicates that the learned Sessions Judge has relied upon the evidence of one case and decided the another case without following the procedure as contemplated under law. It has been observed in the decisions quoted supra the Hon’ble Apex Court as well as this Court consistently held that two cases should be treated separately by the same Court to avoid the risk of two Courts coming to conflict the findings. This Proposition of law has been laid down by the Hon’ble Apex Court in the Case of Kewal Krishan s/o Lachman das v/s Suraj Bhan and another reported in 1981 SCC (Criminal) 438 at para 8 that it is observed as under:
“8. We had deferred the final hearing of this case because we were told that in the connected case which was pending for trial before the Additional Sessions Judge, Sirsa, the judgment was going to be pronounced shortly, a copy of that judgment, which has since been pronounced by the Additional Sessions Judge has been produced by the counsel for the petitioner for our perusal. Kewal Krishan, petitioner and his two companions have been acquitted by the trial Court in the case. Learned counsel for the petitioner want to make only a limited use of this judgment. He wants to show that the defence story set up in that case by Kewal Krishan was susbstantially the same as adumbrated in the complaint filed by him in the instant case. According to the counsel, the acquittal of Kewal Krishan implies that his counter-story was not frivolous, at least against Suraj Bhan accused.”
17. It has been observed by the Hon’ble larger Bench of this Court in State of Karnataka by Circle inspector of Police quoted supra at para No.18 that the evidence recorded in one case cannot be looked into in the other case. The trial Judge can be relied upon the evidence recorded in that particular case and the evidence recorded in the cross case cannot be looked into. Each case must be decided on the basis of the evidence which has been placed on record in that particular case. However, the caveat is also there if evidence is bought on record legally then under such circumstances the Court can looked into. But the records indicates the said evidence has not been brought as contemplated under law.
18. In that light also the learned Judge without taking into consideration the proposition of law laid down by this Court as well as the Hon’ble Apex Court has come to a wrong conclusion. Though the learned counsel appearing for the parties have argued in length on merits. I am of the considered opinion that I have given my thoughtful consideration to the said evidence and material placed on record that is discussed in detail the said material then under such circumstances it is going to prejudice the Court below. Taking into consideration of the above said facts and circumstances, I am of the considered opinion that the said procedure which has been followed has resulted into miscarriage of justice and as such the matter requires to be remitted to the Court below with a direction to follow the procedure laid down in the decision quoted supra by this Court as well as the Hon’ble Apex Court and then thereafter the cases may be decided in accordance with law.
19. In that light the Crl.A No.7/2019 is allowed and the judgment of acquittal passed in S.C No.5174/2018 dated 1.10.2018 and Crl.A No.1808/2018 is allowed and the judgment of conviction passed by the Additional District and Sessions Judge, Chamarajanagara (sitting at Kollegala) in S.C.No.106/2013 dated 1.10.2018 are set aside and both the matters have been referred back to the Court below to disposed of in accordance with law.
Both the parties are present before the Court and as such they are directed to appear before the learned District Judge without further notice on 16.01.2020.
Sd/- JUDGE BKM/HB