Criminal Appeal No.12 of 2005

21st October, 2008

Petitioner Counsel: Mr. S. G. DESSAI,Mr. P. TALAULIKAR
Respondent Counsel: Mr. D. J. PANGAM

Cases Cited:
State of Maharashtra Vs. Tulshiram Bhanudas Kamble, AIR 2007 SC 3042 [Para 3]
Main Pal's Case, (2004)10 SCC 692 [Para 3]
Turner Mrrison and Co. Vs. K. N. Tapuria, 1993 CRI.L.J. 3384 [Para 3]
State of Rajasthan Vs. Smt. Kalki, 1981(II) SCC 752 [Para 3,7]
State of M.P. Vs. Bacchudas alias Balaram, AIR 2007 SC 1236 [Para 14,15]

JUDGMENT

JUDGMENT :- This appeal is directed against the judgment and order dated 01/11/2004 passed by the Judicial Magistrate, First Class, Canacona in Criminal Case No.30/P/1996 acquitting the respondent Nos.1 and 2 for the offences punishable under sections 447, 323, 504 and 506(II) of Indian Penal Code. The complaint was filed by the appellant against the respondent Nos.1 and 2. The parties shall hereinafter be referred to as per their status before the Magistrate.

2. Briefly, the facts leading to filing of the present appeal are as under :

On 12.3.1996, the complainant accompanied by his friend Sudesh Tari, bailiff Shri. Raghunath Tamankar and Photographer Shri. Socorro Moraes went to the house of the accused for effecting service on the accused as well as wife of accused No.2 and another son. As per direction through Civil Court, photographer took photos and bailiff effected service of summons on accused No.1 and sat near the house of the accused to effect service on the wife of accused No.1, who was expected to come soon. The complainant along with photographer and his friend went to his house situated at a distance about 100 metres for having tea. Meanwhile, the accused No.1 armed with stick came running to the house of complainant, abused his parents and entered the verandah of the house and assaulted the complainant and his parents with sticks and threatened to kill them. On the same day, the complainant lodged report at Canacona Police Station which was registered as N.C. Case No.126/1996. Since the police did not investigate the offences, the complainant filed a private criminal case against the accused on 14.5.1996. The learned Magistrate issued process against the accused under section 448, 323, 504 and 506(II) of Indian Penal Code. The complainant examined seven witnesses in support of his case. They are P.W.1, the complainant, P.W.2 Balaji Porob Bhagwant Konkar, P.W.3 Sudesh Tari, P.W.4 Dr. A. Dessai, P.W.5 Shrikant Naik, Head Constable, P.W.6 Raghunath Tamankar, the bailiff and P.W.7 Socorro Moraes, the photographer. P.W.2 Balaji died during the pendency of the case and as such he could not be cross-examined after framing of charge. The learned Magistrate upon appreciation of the materials, held that the prosecution was not successful in proving the offences beyond reasonable doubt against the accused and consequently acquitted the accused. The Magistrate recorded the acquittal mainly on the following grounds:

i) There was delay in filing the complaint.

ii) There were material contradictions and omissions in the testimonies of the witnesses.

iii) P.W.1, P.W.2 and P.W.3 were interested witnesses and, therefore, their testimonies did not inspire confidence.

iv) The mother of the complainant was not examined and as such adverse inference was liable to be drawn against the complainant.

v) P.W.6 Raghunath Tamankar, who is independent witness, did not fully support the case of the complainant.

3. Mr. Dessai, learned Senior Counsel appearing for the appellant/complainant submitted that the reasons given by the Magistrate for acquitting the accused are unsustainable in law. The learned Counsel submitted that since N.C. was lodged by the complainant on the day of the incident, there was no delay on the part of the complainant in filing the complaint which has been filed within the period of limitation prescribed under the Code of Criminal Procedure. He further submitted that there are no material contradictions and omissions in the testimonies of the prosecution witnesses and, therefore, the Magistrate ought to have been accepted the evidence of the prosecution witnesses. He further submitted that P.W.1 Gopal and P.W.2 Balaji were injured witnesses, therefore, their testimonies had to be accepted by the Trial Court more particularly having regard to the fact that the version of the complainant was corroborated by medical evidence tendered through P.W.4 Dr. Dessai. According to the learned Counsel, the Magistrate has not even discussed the medical evidence which fully supports the case of the complainant. The learned Counsel further submitted that the evidence of P.W.2 Balaji, is admissible under Section 133 of the Evidence Act, although he could have not been cross-examined after framing of the charge on account of his death. It is further urged that the Magistrate erred in placing reliance upon N.C. report for holding that there was contradictions and omissions in the testimony of the complainant vis-a-vis the said report and the complainant could not have been cross-examined with respect to N.C. Report since it cannot be treated as previous statement for the purpose of Section 145 of the Evidence Act. According to the learned Counsel, non-examination of the mother of the complainant was not fatal to the prosecution case. It was further urged that the Magistrate has erred in law in treating P.W.1 Gopal, P.W.2 Balaji, P.W.3 Sudesh as interested witnesses in as much as no foundation has been laid by the accused to substantiate that they are interested in falsely implicating the accused. He, therefore, submitted that the complainant has been able to establish the offences against the accused beyond reasonable doubt and the findings recorded by the Magistrate are perverse warranting interference by this Court. In support of his submissions, learned Counsel relied upon following judgments :

i) State of Maharashtra Vs. Tulshiram Bhanudas Kamble and Ors. reported in AIR 2007 SC 3042.

ii) Main Pal And Another reported in (2004)10 SCC 692.

iii) Turner Mrrison and Co. Vs. K. N. Tapuria reported in 1993 CRI.L.J. 3384.

iv) State of Rajasthan Vs. Smt. Kalki and Another reported in 1981(II) SCC 752.

4. Per contra, Mr. Pangam, learned Counsel for the respondent Nos.1 and 2/the accused supported the impugned order. He submitted that there are material contradictions and omissions in the testimonies of the prosecution witnesses and, therefore, no interference is called for by this Court. According to learned Counsel, medical certificate produced by P.W.4 Dr. Dessai is duplicate of the original and since the original was not available, the duplicate could not have been tendered in evidence being inadmissible. The learned Counsel further submitted that in the complaint, time and date of the commission of the alleged offences have not been mentioned which seriously affects the credibility of the evidence tendered by the prosecution witnesses. According to the learned Counsel, there are variations on material aspects in the testimonies of prosecution witnesses more particularly P.W.1, P.W.2 and P.W.3. He further submitted that there is material variations in the evidence of prosecution witnesses and, therefore, no interference is called for in the appeal. The learned Counsel further submitted that the view taken by the learned Magistrate is probable view, therefore, no interference is called for in the appeal.

5. I have considered the submissions made by learned Counsel for the parties and perused the record and the judgments relied upon by the appellant.

6. The Magistrate has recorded a finding that there is delay in filing the complaint which raises suspicion about the prosecution case. Delay in filing the complaint by itself is not fatal. In the present case, the complainant has relied upon N.C. report lodged on the date of the incident which clearly establishes that he went to Canacona Police Station to lodge the report against the accused and the police recorded N.C. report. Having regard to this factual background, I find that the finding of the learned Magistrate that delay in filing complaint in the present case has seriously affected the credibility of the prosecution witnesses, cannot be sustained.

7. The learned Magistrate has also held that the complainant and his father are interested witnesses although the Apex Court has clearly held that the related witness is not necessary an interested witness as laid down by the Apex Court in the judgment in the case of State of Rajasthan Vs. Smt. Kalki and Another reported in (1981)2 SCC 752. The father of the complainant and Mr. Tari, friend of the complainant, cannot be termed as interested witnesses. No doubt their evidence requires to be scrutinised carefully being relative and friend of the complainant. The next submission made by Mr. Dessai is that the N.C. report recorded by the police under Section 155 of the Criminal Procedure Code, cannot be termed as previous statement under Section 145 of the Evidence Act on the ground that under Section 155 of Criminal Procedure Code only gist is recorded and not entire version of the person lodging the report. I find myself unable to agree with this submission. The N.C. report lodged by the Canacona police under Section 155 of Criminal Procedure Code, is a previous statement for the purpose of Section 145 of the Evidence Act and, therefore, the Magistrate was right in relying upon the same for the purpose of finding out contradictions and omissions vis-a-vis the said report while appreciating the evidence of the complainant. Mere fact that under Section 155 only gist is recorded and not entire version, is not sufficient to hold that the same is not a previous statement for the purpose of Section 145 of the Evidence Act. Moreover, in the present case, the complainant has clearly stated that whatever he has stated in his substantive evidence, was stated by him while lodging N.C. report. Therefore, the Magistrate was justified in placing reliance upon N.C. report for the purpose of finding out whether there are contradictions and omissions in the testimony of the complainant vis-a-vis the said report.

8. The learned Magistrate in paragraph 17 of the impugned judgment has referred to the evidence of the complainant. During his cross-examination he was cross-examined vis-a-vis his report Exh.P.W.1/D and several contradictions by way of omissions vis-a-vis the said report, have been brought on record. By placing reliance upon the evidence of the complainant in the cross-examination, the Magistrate has held that the evidence of complainant is full of omissions and improvements. Moreover, these omissions have been proved through the evidence of P.W.5 C. L. Naik. The contradictions by way of omissions mentioned by the learned Magistrate are on vital aspects and, therefore, the Magistrate was justified in not placing implicit reliance on the testimony of the complainant. I do not deem it necessary to reproduce the evidence which has been referred to by the Magistrate in paragraph 17 of the impugned judgment. Mr. Pangam is right in submitting that there are variations/contradictions in the testimonies of the complainant and his father P.W.2 Balaji in so far as the main incident is concerned.

9. No doubt, the Magistrate has not made reference to the medical evidence tendered by P.W.4 Dr. Dessai. No doubt, Mr. Pangam is right in contending that in the absence of the original, duplicate copy could not have been produced on record in the light of clear admission by the Dr. Dessai that original certificate was not available. However, the fact remains that Dr. Dessai in his substantive evidence has deposed about the injury found on the complainant when he examined him on 13.3.1996. There is absolutely no reason to disbelieve this part of his evidence which has not been shattered in the cross-examination. The evidence of Dr. Dessai clearly proves that when the complainant was examined by him on 13.3.1996 in the evening, he found C.L.W. on left Parieto Occipital region of the complainant. Thus, the prosecution has been able to establish that the complainant had injury on his parieto Occipital region when he was examined by P.W.4 Dr. Dessai. However, this evidence does not advance the case of the prosecution in as much as once it is held that the version of the complainant is full of contradictions and improvements, the medical evidence is not sufficient to place implicit reliance on the testimony of the complainant.

10. In so far as the evidence of father of the complainant is concerned, even if it is considered, the same does not take case of the prosecution any further in view of variance between his testimony and that of the complainant. The evidence of P.W.7 Socorro Moraes, does not advance the case of the complainant since he only states that he clicked photographs but does not state about the assault by the accused.

11. In so far as non-examination of the mother of the complainant is concerned, no doubt, she was an important witness, but her non-examination by itself, cannot be fatal to the prosecution case and the other evidence led by the complainant, has to be appreciated on its own merit to find out whether the prosecution has been able to establish the offences against the accused beyond reasonable doubt.

12. In so far as the evidence of P.W.6 Raghunath Tamankar, the bailiff of the Court is concerned, the same does not advance the prosecution case. His evidence only proves that on 13.3.1996 he had gone to the house of the accused and he had served the notice on accused No.1. His evidence does not prove the assault on the accused, but on the contrary he has stated that after the accused Nos.1 and 2 ran after P.W.1, he ran beyond the road of the house as he was afraid that he might be assaulted by the accused. He has further stated that the photographer also ran away from the spot on his scooter. This evidence of this witness who is an independent witness also does not support the prosecution case.

13. In so far as the evidence of P.W.3 Sudesh Tari is concerned, in the cross-examination, he has been confronted with the statement under Section 200 of Criminal Procedure Code and he has fairly admitted that in the statement under Section 200, he had not stated that he had accompanied the Court official along with the complainant to the house of the accused. He also admitted that he had not stated that Mr. Tamankar had come to serve the notice on the accused. He admitted that he had not stated that he along with complainant had returned to the house of the complainant and that Court official remained in the house of the accused. Similarly, he admitted that he had not stated that both the accused came running but he had stated that the accused had come. Similarly, he admitted that he had not stated the abuses which he had mentioned in his examination-in-chief. Similarly, the witness has admitted that he had not stated about the blow given by accused No.1 on father of the complainant and that he tried to obstruct the danda blow and in that process received injury on his palm. Thus, the evidence of this witness, does not inspire confidence.

14. Thus, upon reappreciation of entire evidence led by the prosecution, it is difficult to hold that the prosecution has proved beyond reasonable doubt the offences for which the accused have been acquitted by the Magistrate. Moreover, the present appeal is an appeal against acquittal. In the case of State of M.P. Vs. Bacchudas alias Balaram and Others, reported in AIR 2007 SC 1236, the Apex Court has held that although the Appellate Court, in an appeal from acquittal, is entitled to review the evidence led in the case, the Appellate Court must not upset the acquittal, if the view taken by the Court, acquitting the accused, is possible view. The Apex Court has further held that the Appellate Court should interfere with an order of acquittal only when there are compelling and substantial reasons for doing so.

15. Applying the principles laid down by the Apex Court in the case of Bacchudas (supra) and upon reappreciation of entire evidence, I am of the considered opinion that the view taken by the Trial Court can be said to be the possible view. No compelling reasons have been made out by the complainant for interfering with the order of acquittal. Hence, the appeal deserves to be dismissed and is, accordingly, dismissed. The bail bonds executed by the respondents shall stand discharged.

Appeal dismissed.