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IN THE HIGH COURT OF KARNATAKA AT BENGALURU (KALABURAGI BENCH)
Hanchate Sanjeevkumar, J.
K. Narasimhalu - Appellant
Versus
State - Respondent
Criminal Appeal No. 3665 of 2012
Decided On : 02-06-2020
Evidence Act - Section 9 - Criminal Procedure Code - Section 313 - Indian Penal Code - Section 307, 332, 504, 506, 435, 427, 34 – Appeal against conviction - Rigorous imprisonment - Whether prosecution proves guilt of accused beyond reasonable doubt for offences alleged against accused - Whether judgment of conviction and order on sentence passed by Court of Principal Sessions Judge passed in Sessions Case requires interference by this court - Whether all or any of them could be cited as eyewitnesses of crime - Whether evidence deserves any credence or not would always depend on facts and circumstances of each case - Whether really these accused have involved in incident and committed alleged offences - Complainant who is a driver of KSRTC bus was coming from Village and PW.18 is conductor of bus and bus after passing Canal at that time bus was stopped as signal was given by six persons and those six persons threatened bus driver and they were with spade and kerosene bottles and they immediately started damaging glasses of windows of bus and passengers of bus have alighted and thereafter accused have set fire to bus by pouring kerosene on seat and threatened driver and conductor of bus and bus was burnt to ashes - PW-10 is complainant being driver of bus had lodged a complaint as per Ex.P.19 before police - Based on first information statement Ex.P.19 Investigating Officer has started investigation and filed charge sheet for offence punishable under Section 307, 332, 504, 506, 435, 427 read with Section 34 of Indian Penal Code and since some of offences are is exclusively tribal by Sessions Court therefore case is committed to Court of Sessions Court – Therefore Sessions Court has framed charges against accused for offences punishable under Sections 307, 504, 332 and 506 read with Sections 34 of IPC – Held, Court has to assess whether read as a whole it is truthful - In doing so court has to keep in mind deficiencies drawbacks and infirmities to find out whether such discrepancies shake truthfulness - Some discrepancies not touching core of case are not enough to reject evidence as a whole - No true witness can escape from giving some discrepant details - Only when discrepancies are so incompatible as to affect credibility of version of a witness court may reject evidence - In this regard court place reliance on judgment of Honble Supreme Court in case of State Also court place reliance on judgment of Honble Apex Court in case Therefore upon considering evidence of PW.10 driver and PW.18 conductor when their evidence is analyzed with evidence of PW.20 and PW.19 - PSI who has conducted investigation there is a doubt arises that whether PW.19 had really made arrangement for conducting test identification parade - Further PW.10 had stated in his evidence that police have stated names of accused and he had been to police station for two three times and police have shown accused and under these circumstances even if it is proved test identification parade is conducted it loses its significance - Where witnesses knew persons question of holding of any test identification parade in respect of them for their identification did not arise - Further more PW.18 has stated in his evidence that before incident he knew accused with their names and even it shows when PW.18 knew very well about accused and conducted test identification parade making presence in District Prison and making participate of PW.18 during test identification parade loses its significance - In this regard observation made by Sessions Court is not correct relying on test identification parade - Further Sessions Court has relied on evidence of PWs.10 and 18 by categorizing them as uninterested witnesses and there is no enmity between PWs.10 and 18 and accused therefore evidence of PWs.10 and 18 are found to be believable is perverse finding - When upon considering and analyzing evidence of PWs.10 and 18 as discussed above evidence of PWs.10 and 18 are not found to be believable then even if there is no enmity between accused and PWs.10 and 18 that does not give any credentials while appreciating evidence of PWs.10 and 18 – Therefore in this regard learned Sessions Judge has wrongly appreciated evidence on record and by only relying on evidence of PWs.10 and 18 had convicted accused - While re-appreciating evidence on record in this regard court of opinion that PWs.10 and 18 are not found to be believable and trustworthy – Therefore when two views are possible one is in favor of accused and another one is in favor of prosecution always view in favor of accused be considered and benefit of doubt must be extended on that view in favor of accused - But in present case while analyzing evidence on record in its entirety it is not only two views are possible but possible to only one view which is heavily tilting towards accused raising reasonable doubt of involvement of accused in present incident – Therefore judgment of conviction and order on sentence suffers illegality and perversity and thus appeal deserves to be allowed by setting aside judgment of conviction and order on sentence - Appeal is hereby allowed
JUDGMENT
Hanchate Sanjeevkumar, J. - The above appeal is filed challenging the judgment of conviction and order on sentence dated 20.09.2012 passed in Sessions Case No.89/2010 by the Court of Principal Sessions Judge at Raichur.
2. The brief facts of the case are as follows ;-
On 20.04.2009 at about 6.45 a.m. the complainant who is a driver of KSRTC bus bearing Reg.No.KA-36-F-457 was coming from Dinni Village to Raichur and PW.18 is the conductor of the bus and the bus after passing Rampur Canal at that time the bus was stopped as the signal was given by six persons and those six persons threatened the bus driver and they were with spade and kerosene bottles and they immediately started damaging the glasses of the windows of bus and the passengers of the bus have alighted and thereafter the accused have set fire to the bus by pouring kerosene on the seat and threatened the driver and conductor of the bus and the bus was burnt to ashes.
PW-10 is the complainant being driver of the bus had lodged a complaint as per Ex.P.19 before the police. Based on the first information statement Ex.P.19 the Investigating Officer has started investigation and filed charge sheet for the offence punishable under Section 307, 332, 504, 506, 435, 427 read with Section 34 of Indian Penal Code (hereinafter referred to 'IPC') and since some of the offences are is exclusively triable by the Sessions Court, therefore the case is committed to the Court of Sessions Court. Therefore, the Sessions Court has framed charges against the accused for the offences punishable under Sections 307, 504, 332 and 506 read with Sections 34 of IPC.
The accused pleaded not guilty and claims to be tried. Therefore, the learned Sessions Judge has proceeded with the trial. During the midst of the trial accused No.2 died. Therefore, the case as against him stands abated.
The prosecution in order to prove the guilt against the accused has examined PWs.1 to 20 and got marked the documentary evidence Ex.P.1 to Ex.P.31 and got marked M.O.Nos.1 to 3. For the defence Ex.D1 was marked.
After closure of the prosecution evidence, the accused were examined under Section 313 of Criminal Procedure Code. Accused have not lead any evidence and it is total denial of the case by the accused. After appreciating the evidence on record, the learned Sessions Judge has convicted the accused Nos.1 and 3 for the offences punishable under Sections 506 and 332 of IPC and sentenced them to undergo rigorous imprisonment for two years. Further convicted for the offence punishable under Section 307 of IPC and sentenced to undergo rigorous imprisonment for ten years and also to pay a fine of Rs.50,000/- each and in default of payment of fine accused shall further undergo rigorous imprisonment for two years.
3. Calling in question the judgment of conviction and order on sentence passed by learned Sessions Judge, accused Nos.1 and 3 have preferred this appeal on the grounds that
The prosecution has failed to prove the guilt beyond reasonable doubt and there are no convincible evidences on record to convict the accused and the learned Session's Judge has wrongly appreciated the evidence on record.
Further the ground raised is that initially the case was registered against the unknown persons but later on these accused persons were named and thus, the accused persons were falsely implicated into the case and thus, real culprits have not been implicated by the Investigating Officer.
Further it is the ground that all the witnesses have turned hostile and only the available witnesses are PW.10 driver, PW.18 conductor, PW.19 Investigating Officer and PW.20 Tahasildar, but evidence of these witnesses do not inspire confidence of the court so as to say that the accused Nos.1 to 3 have involved in to the alleged crime.
Further it is raised ground that even though PWs.10 and 18 are not found to be believable so as to point out guilt towards the accused and PWs.10 and 18 are not believable and if these evidences are k
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