First Class & Ors. v. State of Karnataka5 & Ors.

Judgment

#1. This appeal, filed under section 378(3) & (1) of the Criminal Procedure Code, 1973 (for short, ‘Cr.P.C’) is preferred by the appellant / State against the judgment of acquittal passed by the learned Special Judicial Magistrate of

First Class, Prohibition and Excise, Srikakulam (for short, ‘Trial Court’) in Calendar Case No.203 of 2006. By its judgment dated 11.04.2007, the Trial Court acquitted the accused for the offence punishable under section 353 of Indian Penal Code, 1860 (for short, ‘IPC’).

#2. Perused the impugned judgment of acquittal rendered by the Trial Court, which is challenged under this appeal. It consisted of evidence of PWs.1 to 6 and documents marked Exs.P.1 to P.4 and contradictory statements i.e., Exs.D.1 to D.4 which were elicited during the cross- examination of PWs.2 to 4.

#3. The facts in a nutshell, which give rise to the appeal, are as under: On 06.12.2005 at around 02.15 PM, while the de facto complainant was discharging his official duties, A.1 and A.2 approached him in the court verandah, called him aside, and engaged in argument concerning a land dispute. During the altercation, A.1 grabbed the shift collar of the de facto complainant, while A.2 assaulted him by slapping and kicking him, thereby obstructing him from performing his duties. As 3 such, the accused committed an offence punishable under section 353 r/w 34 of IPC.

#4. The Trial Court took cognizance of the offence under Section 353 read with Section 34 of the Indian Penal Code against the accused. Upon their appearance before the Court, copies of the relevant documents were furnished to them as mandated under Section 207 of the Code of Criminal Procedure. After hearing the submissions made by the Public Prosecutor and the defence counsel on the question of charge, the Trial Court framed charges against the accused for the offence punishable under Section 353 read with Section 34 of the IPC. The accused pleaded not guilty and claimed to be tried.

#5. The Trial Court examined the accused as required under Section 313 Cr.P.C., to enable them to consider the evidence that had been led on the part of the prosecution and also appeared against them. But the accused denied the truth of the evidence adduced by the prosecution. After conclusion of arguments and upon perusal of the material, the Trial Court found the accused not guilty and acquitted them.

#6. The learned Assistant Public Prosecutor, representing appellant/State, submits that the learned Magistrate failed to properly appreciate that PWs.1 to 5 are court employees and that the incident occurred on 06.02.2005 at approximately 2:15 PM in the verandah of the court building; the Magistrate should have considered the evidence showing that A.1 caught hold the PW.1’s shirt collar, and A.2 assaulted him by striking him on the back and kicking him. The reasons provided by the Trial Court for acquitting the accused are legally and factually untenable. The Trial Court erred in disregarding the prosecution evidence, rendering the impugned judgment inconsistent and liable to be set aside.

#7. The learned counsel for the respondents/accused contends that the case has been fabricated against the respondents owing to a land dispute; the PW.1’s testimony lacks corroboration from other prosecution witnesses, and 4 that the Trial Court rightly disbelieved the prosecution’s version. The learned counsel accordingly supports the findings and conclusions recorded by the Trial Court.

#8. I have heard learned counsel on either side and carefully perused the material available on record, including the oral and documentary evidence produced by the prosecution before the Trial Court.

#9. Point for determination is: Whether the Trial Court was accused? justified in acquitting the P O I N T:

#10. Before re-appreciation of the evidence on record, it is necessary here to mention the power of the Appellate Court regarding interference. The Hon'ble Supreme Court, in the case of A. Shankar V. State of Karnataka 1 , at paragraph 26 of the judgment, has held as follows: "26. It is settled legal proposition that in exceptional circumstances the appellate court, under compelling circumstances, should reverse the judgment of acquittal of the court below if the findings so recorded by the court below are found to be perverse i.e. the conclusions of the court below are contrary to the evidence on record or its entire approach in dealing with the evidence is found to be patently illegal leading to miscarriage of justice or its judgment is unreasonable based on erroneous law and facts on the record of the case. While dealing so, the appellate court must bear in mind the presumption of innocence of the accused and further that acquittal by the court below bolsters the presumption of his innocence."

#11. In State of Goa V. Sanjay Thakran & Anr.2, the Hon’ble Supreme Court while considering the power of appellate court to interfere in an appeal against acquittal, after adverting to various earlier decisions on this point has concluded as under: “16.....while exercising the powers in appeal against the order of acquittal the court of appeal would not ordinarily interfere with the order of acquittal