SRINIVASA v. THE STATE OF KARNATAKA

Chitradurga, all accused held her firmly in their grip, accused No.4 brought kerosene and poured on her, in the meantime, accused No.1 took the matchbox and thrown - 5 - NC: 2024:KHC:41093 CRL.A No. 467 of 2013 burning matchstick on her person. PW1 somehow able to escape from their clutches, ran away from that place and by catching autorickshaw, she came to Chitradurga, and went to the Hospital for treatment. At that time, the Police recorded her statement in the Hospital and registered a complaint. This led to registration of F.I.R. and investigation.

4. Soon after initiation of the charge-sheet, the Sessions Court framed a charge against the accused for the offences punishable under Sections 143 and 307 read with Section 149 of the Indian Penal Code, 1860 (for short, 'IPC'). They pleaded not guilty and claimed to be tried.

5. The Sessions Court in order to prove its case examined in all ten witnesses as PWs.1 to 10, got marked nine documents as per Exs.P1 to P9 and four material objects as per MOs.1 to 4. After the closure of evidence on the prosecution side, the accused were examined under Section 313 of the Cr.P.C., they denied the incriminating - 6 - NC: 2024:KHC:41093 CRL.A No. 467 of 2013 circumstances and submitted that they would not lead defence evidence. The Sessions Court after appreciating the evidence came to the conclusion that the appellants are guilty of offences punishable under Sections 143 and 307 read with Section 149 of IPC.

6. Sri P.B. Umesh, learned counsel for the appellants, has contended that the conviction and sentence passed by the Sessions Court is contrary to law, the Sessions Court in error in convicting the appellants on the prosecution evidence which is highly interested, contradictory, unreliable and artificial; the prosecution is guilty of suppression of material evidence and has not come forward with true version of the incident; the Sessions Court has committed serious error in relying on the evidence of PW1, wherein, her evidence is not corroborated by any independent witnesses and her evidence is full of material contradictions, omissions and improvements; The Sessions Court has committed serious error in relying on the evidence of PWs.2 and 7 when their - 7 - NC: 2024:KHC:41093 CRL.A No. 467 of 2013 evidence is not corroborated with each other; the Sessions Court ought to have disbelieved the evidence of PW6, who is an interested witness, and his evidence is not corroborated with prosecution version. The Sessions Court ought to have acquitted the appellants on the ground that the evidence of PW9-Dr. Shobha, who treated PW1, clearly states that she sustained simple injury vide Ex.P6-Wound Certificate; the Sessions Court committed serious error in relying on the evidence of PW8-Assistant Sub-Inspector of Police and PW10-Sub-Inspector of Police, who conducted investigation, when their evidence is full of material contradictions and omissions; there is delay in filing the complaint and the delay is not properly explained by the prosecution; the Sessions Court has not at all discussed or appreciated the case of defence or arguments advanced on behalf of the defence, but has only narrated the entire evidence in the judgment. Therefore, the judgment of conviction and sentence suffers from legal infirmities and the reasons and findings recorded by the Sessions Court are not based on legal evidence, and the Sessions Court - 8 - NC: 2024:KHC:41093 CRL.A No. 467 of 2013 has not at all discussed about the improvements, infirmities and material contradictions in the prosecution evidence. In fact, it goes to the very root of the case and falsifies the version of PW1. Hence, he prays to allow the appeal.

7. Per contra, Sri Diwakar Maddur, learned High Court Government Pleader, has contended that the evidence of prime witnesses is very consistent as regards their participation in assaulting PW1 and the Sessions Court has rightly held that the evidence is believable to that extent. He further contended that although independent witness to the seizure mahazar was not examined, however, PW6, a relative of PW1, was examined and his testimony can be believed. The Sessions Court has assigned valid reasons in appreciating all the witnesses and therefore, he prays to dismiss the appeal.

8. After hearing the learned counsel from both side, the points that arise for consideration of this Court in this appeal are: - 9 - NC: 2024:KHC:41093 CRL.A No. 467 of 2013 i. Whether the prosecution has proved beyond all reasonable doubt that on 6-11-2011 at about 10:00 a.m. at Papenahally Village, accused Nos.1 to 5 with common object of taking away the life of PW1/complainant formed unlawful assembly and thereby, committed an offence punishable under Section 143 of IPC? ii. Whether the prosecution has proved beyond all reasonable doubt that on the above date, time and place, accused Nos.1 to 5 attempted commit murder PW1/complainant and thereby, committed an offence punishable under Section 307 read with Section 149 of IPC? iii. Whether impugned judgment of conviction under appeal warrants any interference at the hands of this Court?

9. In order to establish the aforesaid aspect, the prosecution examined: a. PW1-Kavitha is the complainant and wife of accused No.1. In her evidence, she has stated that she - 10 - NC: 2024:KHC:41093 CRL.A No. 467 of 2013 was given in marriage with accused No.1. About eight months prior to lodging of the complaint i.e., 6-11-2011, accused No.1 met with an accident and he was taken for treatment to the Hospital, the blood examination report disclosed that he tested HIV positive. Since the family members of accused No.1 started harassing her and because of her husband's HIV positive, she was living separately at her parental house, at Chitradurga. Accused No.1 used to come to the shop where she was working and he was asking her to come and live with him, but she was not ready to go with her husband. However, on 5-4-2011, at about 8:30 p.m., accused No.1 went to the shop where she was working and took her to his house at Papenahally in autorickshaw, compelling her that he wanted to discuss something with her and at that time, the other accused persons took objection for bringing her to the house and abused her. Further, she has stated that accused No.4 had two daughters and it was her intention to get married one of her daughters with accused No.1 and for this reason, accused No.4 and accused No.3 used - 11 - NC: 2024:KHC:41093 CRL.A No. 467 of 2013 to quarrel with her and for this reason, she left the house of her husband, came to Chitradurga to stay with her parents. On that night, accused No.1 wanted to have sex with her forcibly, but she refused. On 6-11-2011 at about

10.00 a.m. when she wanted to leave the house of the accused, they attempted to commit her murder by pouring kerosene on her, accused No.4 gave matchstick to accused No.1 and asked him to set fire on her, by the time her husband lit the matchstick, she escaped from that place and by catching autorickshaw, she reached the Hospital, wherein, the Police recorded her statement vide Ex.P1, she also identified her clothes as MOs.1 to 3. PW1 has undergone intensive cross-examination by learned counsel the accused. In cross- examination, she further admitted that accused No.4 is residing at Siddavandurga and she has two daughters. In the complaint, she has not stated that accused No.4 had intention of getting married one of her daughters to accused No.1. She further admitted that she has not - 12 - NC: 2024:KHC:41093 CRL.A No. 467 of 2013 shown the spot to the Police while preparing spot panchanama and at the time of incident, nobody came to her rescue and she has not informed her uncle about the incident. From perusal of the oral testimony of the complainant, it clearly establishes that the said incident had occurred in the house of the accused and nobody has seen the incident, but while she was escaping from the house of the accused, one Rajappa and PW4-Ramaswamy saw her. Further, she does not know the contents of spot- cum-seizure mahazar-Ex.P2. b. PW2-Prakash, a witness to spot-cum-seizure mahazar-Ex.P2, has stated that about a year ago, there was quarrel near the house of accused No.1, in this regard, Police visited the spot, seized MO4-kerosene plastic can and drew mahazar as per Ex.P2. In his evidence, he has not specially stated about the quarrel taking place between the accused persons and the complainant. In cross-examination, he admits that he does - 13 - NC: 2024:KHC:41093 CRL.A No. 467 of 2013 not know the contents of mahazar, but the Police took his signature on Ex.P2. c. PW3-Kenchappa is the father of PW1. He has stated it was love marriage between her daughter/PW1 and accused No.1. After four years of the marriage, accused No.1 met with accident and he sustained injury to his left leg. When he was admitted to the Hospital, the Doctor disclosed that accused No.1 is tested with HIV positive. After discharge of accused No.1 from the Hospital, his daughter went to the house of accused No.1, their relationship was cordial and later, his daughter left her husband's house and came to his house. She started working in one Medical Agency. Accused No.1 used to visit his daughter's working place and pestering her to come home and stay with him. Further, one day, accused No.1 took his daughter forcibly to his house, accused persons poured kerosene on her and accused No.1 lit fire on her and hence, his daughter called him and informed him that she is admitted in the Hospital. Hence, - 14 - NC: 2024:KHC:41093 CRL.A No. 467 of 2013 immediately, he went to the Hospital with his wife. He saw PW1 and her clothes stained with kerosene. He further stated that the Police conducted mahazar vide Ex.P2 on the next day of the incident and seized MO4-kerosene plastic can. d. PW4-Ramaswamy is a circumstantial witness. He has totally denied to have seen the complainant/PW1 running away from the house of the accused after the incident. Hence, he has not supported the case of the prosecution. e. PW5-Syed Akthar is the Driver-cum-Owner of autorickshaw, who alleged to have brought complainant/PW1 to the Hospital, after the incident. He has stated that he has not picked up/brought any person from Papenahally to the Hospital. Thus, he has not supported the case of the prosecution. - 15 - NC: 2024:KHC:41093 CRL.A No. 467 of 2013 Therefore, the evidence of independent witnesses, i.e. PWs.4 and 5 do not corroborate with the testimony of complainant/PW1. f. PW6-Obanna, a witness to seizure mahazar, has stated that about two months ago, his sister was admitted to the Government District Hospital, Chitradurga, on account of fracture sustained to her sister's leg, at that time, PW1 came to the Hospital and her clothes were stained with kerosene. Hence, Police seized MOs.1 to 3, i.e. chudidhar top, pant and veil, respectively of PW1 as per Ex.P5. In the cross-examination, he admits that he does not know the contents of Ex.P5, but he has affixed his signature as per the instructions of the Police. g. PW7-Nagaraja, a witness to spot-cum-seizure mahazar-Ex.P2, has stated that the Police drew spot mahazar in his presence and seized MO4-kerosene plastic can. In the cross-examination, he admits that he does not know the contents of Ex.P2 and the Police did not read - 16 - NC: 2024:KHC:41093 CRL.A No. 467 of 2013 over the contents of spot mahazar to him, but he affixed his signature on Ex.P2. h. PW8-K. Parashuramappa, Assistant Sub-Inspector of Police, Turuvanoor Police Station, has stated that on 7-11-2007, he visited the spot, drew mahazar vide Ex.P2, seized MO4-kerosene plastic can, and recorded the statements of the witnesses. He handed over the further investigation of this case to the Sub-Inspector of Police. In the cross-examination, he admits that PW3-Kenchappa furnished MO4-kerosene plastic can at the time of mahazar. He admits that prior to his visit to the scene of offence, PW3 was already at the spot with kerosene plastic can. He further admits that PW1/complainant has not stated before him that she was the root cause for testing HIV positive of her husband and therefore, accused Nos.3 and 4 were suspecting her fidelity and were abusing her; further, she has not stated before him that while she was working in Medical Agency, accused No.1 came there and picked her to Papenahally Village with assurance that he - 17 - NC: 2024:KHC:41093 CRL.A No. 467 of 2013 would return her mangalya chain; she has not given statement that all accused persons attempted to commit her murder. He has further admitted that he has not obtained the signatures of any neighbours while drawing mahazar. j. PW9-Dr. Shobha, Psychiatrist, District Government Hospital, Chitradurga, has stated that on 6-11-2011 at 12:05 noon, PW1/complainant was brought by PW5-Syed Akthar, Driver of autorickshaw, with history of assault and pouring kerosene on her person in order to commit her murder at 10:15 a.m., by the family members of the accused at Papenahally Village. Hence, she examined her and found that there were scratches on right shoulder and her clothes were stained with kerosene smell. PW1 had sustained simple injuries and hence, she issued Wound Certificate vide Ex.P6. In her cross-examination, she admits that she did not handover kerosene strained clothes of PW1 to the Police. - 18 - NC: 2024:KHC:41093 CRL.A No. 467 of 2013 k. PW10-R. Shankaramurthy, Sub-Inspector of Police, who conducted investigation and filed charge-sheet against the accused, has stated that on 6-11-2011, he the Hospital, recorded the statement of PW1/complainant as per Ex.P1 and registered the case in Crime No.176 of 2011, he arrested accused Nos.1 to 3 and produced them before the Sessions Court. In the same day, he went to the Hospital, seized the clothes of PW1 vide MOs.1 to 3 under Ex.P5-mahazar.

10. So from the evidence given by the witnesses, it is possible to draw certain inference. In this case, the main witness is PW1. Hence, whether her sole testimony is believable or not, the manner in which she was cross- examined has to be taken into consideration.

11. It is clear that the prime witnesses do not speak against accused Nos.2 to 5 and implicate accused No.1 only. It is unfortunate that the Public Prosecutor failed to cross-examine the witnesses when they did not fully support the case of the prosecution. - 19 - NC: 2024:KHC:41093 CRL.A No. 467 of 2013

12. To analyse the case of the prosecution, it is just and necessary testify the oral testimony of PW1/complainant. As per her evidence, on 6-11-2011 at about 10:30 a.m., at Papenahally Village, accused Nos.1 to 5 quarreled with her and in order to takeaway her life, they tried to commit her murder by pouring kerosene and setting her on fire. But, she has not stated who poured kerosene on her person as there are five accused and there is only one kerosene plastic can produced by the prosecution. Therefore, there must be specific evidence as to who poured kerosene on her person, is required to be appreciated. Her specific evidence is that accused No.4- Sathyamma handed over the matchbox to accused No.1 and abetted him to lit fire on her. The moment he lit fire, she escaped from there and came in autorickshaw to the Hospital. But PW9, Assistant Sub-Inspector of Police, who recorded further statement of the victim, has denied her statement with respect to all the accused persons attempting to commit her murder and she escaping from - 20 - NC: 2024:KHC:41093 CRL.A No. 467 of 2013 the spot, the moment accused No.1, her husband, lit fire. Therefore, there is no clear, corroborative and convincing evidence as to the specific allegations made by PW1 against the role played by accused Nos.1 to 5 in the alleged incident.

13. In the absence of material particulars, the Court may infer that probably accused No.1 infected with HIV positive, in this regard, PW1/complainant refusing to join his company and in order to avoid that, perhaps, she has lodged a complaint making false allegations that all the accused attempted to commit her murder.

14. As per Wound Certificate, except scratches on her shoulder, there are no other visible injuries, more particularly, the burn injuries on her person.

15. The legal principle that, whenever contradictions, omission, or elicited from witnesses, the attention of the Investigating Officer must be drawn while examining him and then only, there is a proof of - 21 - NC: 2024:KHC:41093 CRL.A No. 467 of 2013 contradictions. In this case, the attention of the Investigating Officer was drawn to the contradictions while examining him. The contradictions should be ignored, for this reason, when they appear to be very material. In this case, drawing attention of the Investigating Officer to the contradictions has been completed as to their formal proof. Thus, the contradictions found in the evidence of PW1 appear to be very significant, they shake the case of the prosecution at its root and falsifies the contents of first information as per Ex.P1. Apart from the oral evidence of PW1, other witnesses, PWs.4 and 5, who accompanied PW1 to the Hospital, have not supported the case of the prosecution. In these circumstances, it is possible that PW1 might have poured kerosene by herself on her clothes somewhere else and then, went to the Hospital. In fact, there was no burn injury on her person. This circumstance give rise to doubt the entire prosecution story as projected. This is a reasonable doubt that obviously arises and has no answer. Every doubt is not reasonable. A doubt to which there is no answer, or even if an answer is - 22 - NC: 2024:KHC:41093 CRL.A No. 467 of 2013 given, it is unsatisfactory, it may be called a reasonable doubt and moreover, it must materially affect the prosecution. Thus, looked the conduct of prime witnesses assumes importance paving way for doubting their testimonies and proved themselves to be untrustworthy. That part of evidence which does not support the case of the prosecution may be separated, but even to consider the other part, it must be inspiring and the evidence as a whole must be assessed in the light of other attending circumstances.

16. As regards, the spot-cum-seizure mahazar are concerned, wherein, seizure of MO4-kerosene plastic can and MOs.1 to 3-clothes of PW1/complainant were not recovered at the instance of the accused, but kerosene plastic can was furnished by PW3, father of the complainant, and MOs.1 to 3 were recovered at the instance of the complainant. The witness to spot mahazar, PW2, though stated in chief-examination, but admitted everything in the cross-examination. Further, - 23 - NC: 2024:KHC:41093 CRL.A No. 467 of 2013 PW2 has not stated that the mahazar was drawn in respect of quarrel taking place between the accused and the complainant. Hence, in this case, the seizure of kerosene plastic can and clothes of the victim were formal in nature. Further, PW2 and PW7, spot mahazar witnesses and PW6-seizure mahazar witness, have stated that they do not know the contents of mahazar drawn in their presence. Hence, there evidence has no reliance in corroborating the prosecution case.

17. In the instant case, though PW1/complainant has claimed herself to be an injured person in the alleged incident and stated that while the accused attempted to lit fire, she escaped, due to which, she did not sustain any burn injuries, but she has not stated that due to the act of the accused persons, she sustained any injuries on her person. In fact, nowhere in her evidence, she has stated about she sustaining any injuries on her person. Still in the said process, she has not stated as to which part of her body, she sustained injury and from which part of the - 24 - NC: 2024:KHC:41093 CRL.A No. 467 of 2013 weapon, she sustained injury. Thus, her evidence regarding the incident and the alleged assault upon her is very vague and bald.

18. In addition to the above, the other witness, who could speak about the incident said to have been sustained by PW1/complainant, could have been PW9-Dr. Shobha, who is stated to have examined the injured and treated her. However, the Doctor has not at all noticed any burn injuries on the complainant. As per Medical Report, the injured sustained only scratch injury on her right shoulder. The complainant, in her evidence, or in the complaint, has not stated as to who caused the scratch injury on her person. For the reasons best known to the prosecution, it has not elicited from the mouth of the complainant as to who caused the scratch injury on her person. Hence, neither PW1, nor the Officer, who recorded her statement, have stated about the scratch injury. Therefore, the medical evidence in the form of Wound Certificate at Ex.P6 also would not come to the help of the prosecution. On the - 25 - NC: 2024:KHC:41093 CRL.A No. 467 of 2013 other hand, it makes suspicion in the evidence of the complainant stronger. Thus, the prosecution could not able to place trustworthy evidence including that of the complainant to believe its version, as such, the judgment of the Hon’ble Apex Court in the case of LAKSHMAN SINGH v. STATE OF BIHAR (NOW JHARKHAND) reported in (2021) 9 SCC 191 would not enure to the benefit of the prosecution.

19. In addition to the above, it also cannot be ignored of the fact that the alleged incident has taken place in front of the house of the accused. However, none of the neighbouring witnesses has been arraigned has witness in the charge-sheet and the prosecution has not examined any independent witnesses in that regard.

20. In the above circumstance, when all the important and material witnesses have not supported the prosecution, except alleged injured/PW1/complainant, and light of observation made above that even the sole evidence of - 26 - NC: 2024:KHC:41093 CRL.A No. 467 of 2013 PW1 also does not inspire confidence in the Court to believe the same, the remaining evidence of PWs.3 and 6 to 10 would be of no greater help to the prosecution. Thus, the oral evidence of PW1 does not inspire any confidence, her oral testimony is totally insufficient to take the case of the prosecution any further. Hence, it is unsafe to believe the evidence of PW1. The prosecution suffers from lack of evidence to prove the alleged guilt of the accused persons. When all the important and material witnesses have not supported the case of the prosecution, except the evidence of PW1, the sole testimony of the complainant does not inspire confidence to convict the accused. In the absence of uncorroborated testimony of the prosecution witnesses, the judgment of conviction and order on sentence passed by the Sessions Court requires to be interfered with.

21. Accordingly, the Court proceeds to pass the following - 27 - NC: 2024:KHC:41093 CRL.A No. 467 of 2013 O R D E R i. Criminal appeal is allowed; ii. The judgment of conviction and order on sentence dated 28-3-2013 passed by the Principal District and Sessions Judge at Chitradurga in Sessions Case No.42 of 2012 is hereby set aside; iii. Appellants/Accused Nos.1 to 5 are set at liberty and their bail bonds, if any, shall stand cancelled, and iv. The fine amount, if any, deposited shall be returned to the appellants, forthwith. Sd/- (VENKATESH NAIK T) JUDGE KVK List No.: 1 Sl No.: 11