2018 Supreme(Kar) 276

IN THE HIGH COURT OF KARNATAKA AT BENGALURU
B.A. PATIL, BUDIHAL R.B., JJ.
Sri Santhosha S/o Sri Biliyaiah – Appellant
Versus
State by Maddur Police Station – Respondent
Criminal Appeal No. 905 of 2013
Decided On : 22-06-2018

Headnote:CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974] - Section 154 - FIR - Delay - When there is no delay in issuing FIR, the delay caused in carrying and delivering, no adverse inference can be drawn that there is a delay and there is every possibility of tampering and concocting the case of prosecution.

       CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974] - Section 154 - FIR - Delay - When the witness who handed over the FIR to jurisdictional Court was not cross-examined by defence, cannot contend that there was a delay in sending the FIR to jurisdictional Court and there is possibility of concocting the case of prosecution.

       CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974] - Section 274(2) - Appeal against conviction - Conviction under Sections 143, 148, 324, 307, 302 r/w Section 149 IPC - Appeal by A-1 to A-5 - Property dispute -Deceased and another supported one person and accused supported the other person - Alleged that A-6 instigated-A1 finish the complainant-Complainant sustained grievous injuries - Complainants wife, his brother and prosecution witnesses were assaulted by accused - Complainant's brother succumbed to injuries - A-6 to A-7 were acquitted - Evidence of witnesses though related were clear, cogent and without much contradictions and could not be discarded only on ground that they are related and interested witnesses - Held, It is true that no independent witnesses came to pacify the galata when alleged incident took place. But generally no other persons try to come and involve in the case that too in a criminal case when two groups are fighting with regard to a site in the same village. It is only related and interested witness who comes forward and gives the evidence. When a galata is taking place between two groups and if accused persons threaten them that if they come to rescue the injured they would be finished, then under such circumstances, no persons would come forward to take risk of their life and get an assault from the accused persons. On going through the evidence of all these witnesses, there is consistency and corroboration in so far as the overt acts of each of the accused in assaulting PW1, the complainant and the deceased Raju and other injured witnesses. When there are eye witnesses to the alleged incident, motive is not relevant. In the case on hand, the prosecution has also established that the accused and injured persons were having animosity in respect of the dispute regarding the it. It is also now well settled that it is not likely to spare the real assailant and implicated the innocent person in order to discard the evidence of the injured witnesses. There must be cogent evidence before the Court, then only the testimony of the injured witnesses can be discarded. In that light, defence ha not brought any material and as such, the evidence of the injured witnesses is acceptable and reliable. The testimony of the injured eye witness is corroborated with the evidence of other witnesses including PWs. 14 and 15 and recovery of the weapons by the Investigating Officer. We have gone through the judgment and order passed by the trial Court. We have also gone through the entire material on record including the lower Court records with exhibits. The trial Court after considering the entire material on record which is consistent with the evidence of the eye witnesses had come to a right conclusion and has rightly convicted the accused-appellants herein. Even on reappreciation of the entire evidence on record, we are of the considered opinion that is not a case where another view is reasonably possible so as to give the benefit to the accused. The accused appellants herein have not made out any good grounds so as to say that the impugned judgment and order is perverse and not in accordance with law.

       INDIAN EVIDENCE ACT, 1872 [C.A. NO. 1/1872] - Section 3 - Appreciation of evidence - Inconsistency between medial evidence and ocular evidence - As could be seen from the evidence of the eye witnesses, they have categorically and consistently stated the overt acts of each of the accused with which weapon they have assaulted the deceased and the injured. In that light, if there is any inconsistency in the evidence of the eye witnesses and the medical evidence, the Court has to believe the evidence of the eye witnesses. In other words, ocular evidence prevail over the medical evidence.

       INDIAN EVIDENCE ACT, 1872 [C.A. NO. 1/1872] - Section 3 - Conduct of accused - When there is consistency in the evidence to the effect that the accused persons have assaulted and subsequently they absconded from the place of incident, an inference can be drawn that the accused persons after committing the offence in order to conceal themselves have absconded.

       INDIAN EVIDENCE ACT, 1872 [C.A. NO. 1/1872] - Section 3 - Related/interested witness - Merely because the witnesses are related to each other, their testimony cannot be discarded. It is the duty of the Court to scrutinize the evidence carefully and cautiously.

       INDIAN EVIDENCE ACT, 1872 [C.A. NO. 1/1872] - Section 27 - Recovery evidence - When the accused persons by constituting an unlawful assembly came and assaulted the deceased and the injured that too, at about 10.00 p.m., then under such circumstances, it is but natural that the time of assault nobody would observe very keenly as to what was the type of handle of the knife with which accused assaulted and their concentration would be towards galata. The said contradiction appears to be a minor which cannot take away the case of the prosecution and testimony of the eye witnesses. Impugned judgment of conviction and sentence affirmed.