N.V. Ramana, J.— Leave granted. This appeal by special leave is directed against the judgment dated 29-11-2017 passed by the High Court of Karnataka, Bench at Dharwad in State of Karnataka v. Bannareddy 2017 SCC OnLine Kar 3789.
2. Vide the impugned judgment, the appellants were convicted in the following manner:
2.1. Under Section 148 read with Section 149 of the Penal Code, 1860 (hereinafter “IPC”) they were sentenced to undergo simple imprisonment of 18 months and a fine of Rs 3000, in default of payment of fine they have to undergo further simple imprisonment for one month;
2.2. Under Section 341 read with Section 149 IPC they were sentenced to undergo simple imprisonment for a period of fifteen days and a fine of Rs 200 was imposed, in default of payment of fine they have to undergo further simple imprisonment for a period of one week;
2.3. Under Section 504 read with Section 149 IPC they have to undergo simple imprisonment for a period of one year and a fine of Rs 1000 was imposed, in default of payment of fine they have to further undergo simple imprisonment for a period of fifteen days;
2.4. Under Section 326 read with Section 149 IPC, each of the accused were sentenced to further undergo simple imprisonment for a period of four years and shall pay a fine of Rs 6000, in default of payment of fine to undergo simple imprisonment for a period of two months.
3. Before we delve into the merits and analysis of the case, it would be trite to refer to the prosecution's case. On 29-8-2008, when the village fair was ongoing, Accused 2 (Dharmareddy) picked up quarrel with PW 2 (Hemaraddi), wherein the second accused threatened to finish PW 2 (Hemaraddi), but this was pacified with the intervention of the persons present there. On the same day when PW 5 (Sanjeevareddy), PW 2 (Hemaraddi) and PW 3 (Lingareddy) were walking to the house, at around 9.30 p.m., the accused persons armed with iron rods, clubs etc. approached them and started abusing them and restrained them. Thereafter, they started assaulting the victims viz. PW 5 (Sanjeevareddy), PW 2 (Hemaraddi) and PW 3 (Lingareddy). Certain witnesses intervened and rescued the complainant and other victims immediately. As PW 2 and PW 3 were injured, they were taken to Navalgund Government Hospital and later to KIMS Hospital, Hubli, thereafter they were transferred to Sushruta Multispeciality Nursing Home.
4. The complainant, PW 5 (Sanjeevareddy) gave a complaint to the police which was registered as Crime No. 194 of 2008 on 29-8-2008 against the accused under Sections 143, 147, 148, 323, 324, 341, 307, 504, 506 read with Section 149 IPC. Thereafter in the morning of 30-8-2008, the clubs and iron rods were recovered from the possession of the appellant-accused Bannareddy in the presence of PW 6 (Devareddy) and PW 9 (Fakkirappa). On the same day the bloodstained clothes were recovered from the possession of Appellant 1-accused in the presence of panch witnesses. The bloodstained clothes were recovered from the possession of the injured Lingareddy in the presence of PW 7 and PW 8. Spot mahazar was conducted and sample of bloodstained earth was collected for chemical analysis in the presence of mahazar witnesses.
5. The trial court, after careful perusal of oral and documentary evidence available on record, by judgment dated 18-1-2014, came to the conclusion that the prosecution failed to prove the alleged offences against the accused beyond reasonable doubt. Hence, the accused were acquitted for the offences punishable under Sections 143, 147, 148, 341, 504 and 307 read with Section 149 IPC.
6. Thereafter, the State preferred the appeal before the High Court in Criminal Appeal No. 100108 of 2014 against the above order of acquittal passed by the trial court, wherein the High Court, by reversing the order of acquittal passed by the trial court, had convicted the accused under Sections 148, 341, 504 and 326 read with Section 149 IPC. Therefore, being aggrieved by the above order of conviction, the appellant-accused have approached this Court.
7. Before us, the learned counsel appearing on behalf of the appellants contended that the prosecution case is full of contradictions and the material evidence available on record is highly inconsistent and the order of the High Court, reversing an order of acquittal, is unsustainable. The learned counsel has also apprised us about the existence of a compromise entered into between the parties, but it is not possible under law to give effect to the same and compound the offence as the offences charged are not compoundable under Section 320 CrPC.
8. Per contra, the learned counsel appearing on behalf of the State supported the impugned judgment of the High Court convicting the appellant-accused.
9. Heard both the counsel. As the offences alleged are not compoundable, notwithstanding the fact that the parties have entered into a compromise, we will deal with the matter on merits.
10. Before we proceed further to peruse the finding of the High Court, it is relevant to discuss the power and jurisdiction of the High Court while interfering in an appeal against acquittal. It is well-settled principle of law that the High Court should not interfere in the well-reasoned order of the trial court which has been arrived at after proper appreciation of the evidence. The High Court should give due regard to the findings and the conclusions reached by the trial court unless strong and compelling reasons exist in the evidence itself which can dislodge the findings itself. This principle has further been elucidated in Sambhaji Hindurao Deshmukh v. State of Maharashtra (2008) 11 SCC 186, SCC para 13, wherein this Court observed that:
“13. … The High Court will interfere in appeals against acquittals, only where the trial court makes wrong assumptions of material facts or fails to appreciate the evidence properly. If two views are reasonably possible from the evidence on record, one favouring the accused and one against the accused, the High Court is not expected to reverse the acquittal merely because it would have taken the view against the accused had it tried the case. The very fact that two views are possible makes it clear that the prosecution has not proved the guilt of the accused beyond reasonable doubt and consequently the accused is entitled to benefit of doubt….”
11. It is not in dispute that the presumption of innocence is further reinforced, reaffirmed and strengthened against the acquitted accused by the judgment in his favour. (Vide Dara Singh v. Union of India (2011) 2 SCC 490 SCC in para 94.)
12. In light of the above well-settled principles, we would proceed to examine the evidence and analyse whether the intervention of the High Court in the order of the trial court was justified.
13. At first it is appropriate to have a glance at the statements of certain witnesses.
14. Siddappa Doddamani, PW 1, stated that when he was near the temple on the date of the said incident, he saw the accused persons being armed with rods and clubs proceeded towards the victims' house. Hence, he followed them out of curiosity, and saw the accused abusing the victims. During the said quarrel, Accused 1 assaulted Sanjeevareddy on his shoulders and left leg with a club and Accused 7 (Ramappa) assaulted him with a club by giving a blow on his body. Accused 2 (Dharmareddy) and Accused 8 (Venkareddy) assaulted PW 2 (Hemareddy) with an iron rod on his left shoulder and left hand. It was further stated that other accused persons also assaulted the victims. Thereafter he along with PW 14 (Vardhamangouda), PW 15 (Sunil), PW 16 (Yallappa), PW 4 (Shivareddy), PW 13 (Manjureddy) and PW 6 (Devareddy) intervened to rescue the victims. It is pertinent to note that, PW 1 during his cross-examination contradicted the above statements made in his examination-in-chief.
15. The victim, PW 2 (Hemareddy) stated that on 29-8-2008, Accused 2 (Dharmareddy) abused him and threatened to kill him in the evening at around 5 p.m. near Hanuman Temple, but this was pacified by the intervention of PW 4 (Shivareddy) and PW 16 (Yellapa). But again at 9.30 p.m. the said accused persons apprehended the victims near the house of PW 14 (Vardhamangouda) and started abusing the victims in relation to the pending dispute between the parties. Thereafter, Accused 9 (Mallareddy) assaulted the complainant, PW 5 (Sanjeevareddy) but not PW 2 (Hemareddy). Accused 1 (Bannareddy) also assaulted Sanjeevareddy on the left palm. Accused 7 (Ramappa) assaulted Sanjeevareddy with a club on his head and other parts of the body. Accused 3 (Hanamareddy) assaulted Lingareddy on his hands and head with an iron rod. The other accused persons were dragging the victims towards the other accused persons who were armed with clubs, who thereafter assaulted him on his head and body. Accused 1 (Bannareddy) assaulted Sanjeevareddy on his left hand and head with iron rod. PW 11 (Maktumsab), PW 16 (Yellapa Halawar), PW 14 (Vardhamangouda), PW 1 (Siddapa) along with others came to their rescue. He further stated that, as the victims had sustained injuries, his brother Venkatareddy shifted them to Navalgund General Hospital for treatment, thereafter they were transferred to KIMS Hospital, after being discharged from there, they were admitted in Shushruta Hospital.
16. The trial court has rightly pointed out the contradictions in the statements given by PW 1 and PW 2 regarding the incident of assault and the participation of the accused persons. These contradictions are material ones and cannot be overlooked.
17. Similarly, after the perusal of the statements of PW 3 and PW 5 we note that, there exist contradictions with regard to the incident and the role played by the different accused persons. The trial court has correctly arrived at a conclusion on this aspect. Further, it is to be noted that, although the above witnesses have stated that there were several eyewitnesses to the above incident who intervened to stop the assault, except PW 1 (Siddappa) and PW 13 (Manjureddy), other witnesses have turned hostile. Apart from the other victims, PW 1 (Siddappa) remains the sole witness to the said incident, but it is to be noted that the statements given by all of them are not in conformity with each other, rather differ on material points regarding the commission of the act itself. In the light of this, it is not appropriate to place reliance on these statements.
18. Another major contradiction in the prosecution's version, as rightly noted by the trial court, is the statement of PW 14 (Vardhamangouda), who according to the eyewitnesses, had intervened in the said fight, as it was happening in the vicinity of his house. But, in clear contravention to the above version, PW 14 states that he was out of station on the said date and on returning back to the village at night around 11.00 p.m. he came to know about the said incident.
19. Although motive becomes irrelevant in the presence of direct evidence, however, the prosecution has submitted that the accused and victims were from different political parties, and political rivalry may be the motive behind the assault. Although the victims were followers of PW 14 (Vardhamangouda), who was the chairman of the panchayat at the time of the incident, but surprisingly he has not supported the case of the prosecution. Further, it is to be noted that there existed prior enmity between the appellant-accused and the complainant victims regarding boundary of their land. The dispute has been continuing for the past 10-15 years which could not be resolved even with the intervention of the other villagers.
20. It is to be noted that certain actions of the victims were inexplicably drawing our suspicion, specifically the behaviour of the victim after the incident. It is an admitted fact that after the said incident the victims were taken to Government Hospital, Navalgund. As PW 5 (Sanjeevareddy) sustained simple injuries on his right shoulder thereby he was not referred for any further treatment. PW 2 and PW 3 having sustained injuries in their head were referred to KIMS Hospital, Hubli for further treatment. But the trial court noted that no documents or certificate regarding the admission or treatment of the victims to this effect were placed on record. The trial court rightly pointed out that PW 19 (Dr Mithun Sattur) who treated the victims both in the well-reputed KIMS Hospital and later in Shushruta Hospital, admitted that KIMS Hospital is well equipped to treat the victims, then it is unclear why were the victims asked to shift to Shushruta Hospital. No documents were produced to clarify the same. The medical evidence produced by the victims proves that they had not sustained any fatal injuries. In such circumstances, it is quite suspicious as to why were the victims shifted from KIMS Hospital to Shushruta Multispeciality Hospital, particularly, PW 5 (Sanjeevareddy), in spite of not being referred by any medical officer got himself admitted to KIMS Hospital and later to Shushruta Multispeciality Hospital. The trial court thereby noted that the victims were trying to generate incriminating evidence against the appellant-accused.
21. Coming further to address the guilt of the accused under Section 149, the prosecution has failed to establish the involvement of all the accused persons. Although the overt acts of certain accused such as Accused 1 (Bannareddy), Accused 2 (Dharmareddy) have been mentioned in the statements of the victims and other witnesses. But no mens rea or actus reus could be attributed towards the rest of the accused persons to establish their guilt under Section 149 IPC.
22. The trial court has correctly observed that the statements made by the mahazar witness regarding recovery of material cannot be relied on, as they have turned hostile. Even the recovery of the bloodstained mud seems conspicuous considering the fact that the given date of incident was admitted to be drizzly and thousands of devotees had come to witness the fair. In such circumstances, it is very unlikely that the blood samples could have been collected the next day.
23. The High Court has relied upon the statement of PW 3, wherein he stated that rest of the accused were dragging the injured to assist the other accused persons with weapons to assault them. This allegation is very wide and made in vague manner, the same is not supported by any other evidence. It will not be appropriate to rely upon the evidence of victims solely to prove the culpability of the accused persons. Therefore, the trial court has correctly held that when any overt act could not be associated with these accused, the provisions of Section 149 IPC will not be attracted.
24. The High Court has failed to take note of the fact that the panchas to the seizure panchnama have turned hostile. Although the investigating officer seized weapons which were identified by the victims and certain eyewitnesses, however, it is pertinent to note that all the witnesses have turned hostile except PW 1 and PW 13. Although PW 1 (Siddappa) in his cross-examination stated that he could recognise the weapons in MOs Nos. 1 and 2 as he has seen them, but contradicted his own statement by stating that he could not say any special features of the weapons used in the offence. Further, PW 13 also recognised the weapons as the same used in the assault. But it must be noted that PW 13 seems to be an interested witness considering his relationship with PW 3. In such circumstances, wherein the panch witnesses have turned hostile, it is not safe to rely upon the recovery of these weapons to substantiate the guilt of the accused persons. Further, we are suspicious about the collection of blood samples, especially when it is an admitted fact that the incident took place on a mud road when it kept drizzling throughout and additionally thousands of devotees were present in the village attending the fair. In the light of such circumstances, the collection of blood samples seems unlikely.
25. In the present case, when the facts as to the incident and the role of the accused could not be proved beyond reasonable doubt, whether the motive behind the same is dispute regarding boundary wall or political rivalry becomes irrelevant.
26. Keeping in view the facts and circumstances of the case, we hold that the prosecution was not able to establish the guilt of the accused persons beyond reasonable doubt. Further, the High Court should not have reappreciated the evidence in its entirety, especially when there existed no grave infirmity in the findings of the trial court. There exists no justification behind setting aside the order of acquittal passed by the trial court, especially when the prosecution case suffers from several contradictions and infirmities. No specific assertion could be proved regarding the role and involvement of the accused persons. Further, certain actions of the respondent victims themselves are dubious, for instance admitting themselves later in a multispeciality hospital without proper cause. It has further come to our notice that the respondents have already compromised and have executed a compromise deed to that extent, though the same is not the basis for our conclusion.
27. Therefore, we set aside the conviction order passed by the High Court and reaffirm the order of acquittal passed by the trial court. The appellants are to be released from custody forthwith.
28. The appeal is allowed accordingly. Pending applications, if any, shall also stand disposed of.