STATE OF KARNATAKA Vs. JAGADISHA

JUDGEMENT

(1.) WE have heard the learned Addl. S. P. P. as also the learned Advocate who represents the respondents. The principal submission canvassed by the learned S. P. P. is that the infirmities on the basis of which the acquittal order has been passed are unsustainable for the simple reason that he relies heavily on the oral evidence of the injured person as also on the evidence of PW. 6 and the medical evidence which according to him corroborates the oral evidence. He points out that PW. 1 has sustained fractures in the course of the injuries, that the injuries are of some seriousness and that the medical evidence is the strongest support to the credibility of the oral evidence. The contention raised is that the acquittal order is unjustified and that the same must be set aside. On behalf of the respondents-accused it is submitted that there are very serious infirmities in the prosecution case. Firstly, what is submitted is that the Investigating Officer has not been examined and since he is a witness of considerable importance, his non-examination is absolutely fatal to the prosecution. In this regard, we need to point out that there is much justification in the submission that the Investigating Officer is a very important and a material witness in criminal cases but at the same time, if the Investigating Officer has for whatever reason not been examined it does not mean that the rest of the evidence gets totally destroyed. We do not condone situations in which the evidence of the Investigating Officer is dispensed with but we have before us one such case and the correct position in law is that even though the prosecution runs a serious risk by not examining the Investigating Officer and that even though in a given instance the damage through such non-examination may be total, there are instances when the prosecution case can still be sustained on its own credibility. Even if the Investigating Officer has not been examined in the present instance, we do not find any total or material damage to the prosecution by the non-examination but we repeat, that we do not approve of the manner in which this prosecution has been conducted.

(2.) THE respondents learned Counsel then pointed out to us the crucial question as to where exactly the incident took place is a matter of some doubt because the P. Ws. are categorical about the fact that the accused rushed into the house and beat them up whereas the mahazar or the inventory of the scene of offence seems to indicate that it was in front of the house. Learned Advocate submits that this situation casts a serious doubt on the credibility of the prosecution case. In our considered view, the nature of the incident and the type of structure in which the complainant was living are such that for an incident of this type to have taken place inside the house just in or inside of the house or outside the house would not again be destructive of the prosecution case though better accuracy would always be desirable. Also, what was pointed out to us was that the weapons in question according to the witnesses were supposed to have been thrown there and the accused ran away. Defendants' learned Counsel points out to us that the recovery of these weapons or the production of these weapons was from a place inside the house and that this runs contrary to the prosecution evidence. We have already dealt with the evidence relating to the scene of offence and we are of the view that the exact location of the recovery point would not necessarily affect the overall validity of the prosecution case. In this context, the respondents' learned Advocate also pointed out to us that the weapons have been produced by the witnesses and that this goes against their own theory that the weapons had been thrown at the scene of the offence. We do not attach much significance to this because even assuming the weapons were thrown at the scene of offence, there is considerable timing between the police were asked to come there and during the interim period, if for any reason the complainant's side had taken charge of the weapons that were thrown there that this would not attack their credibility. Lastly, it was pointed out that none of the blood stained clothes have been produced and that consequently, it would be dangerous to accept the prosecution version. The main reference is to the blood stained saree and in our considered view that this evidence would have been material, that it would have been useful and that it would have been very valuable to the prosecution. The non-production of that sari again though a lapse, is not a sufficient ground to destroy the prosecution evidence.

(3.) WE have on record enough of oral evidence supported by medical evidence and the documentary evidence which does clearly establish that the accused persons had, in the background related, in furtherance of their common intention inflicted injuries in question on PW. 1. It was also pointed out to us by the respondents' learned Counsel that there is a delay of about three hours in lodging the F. I. R. and that this circumstance has not been adequately explained. All that we need to point out is that mere delay is not destructive unless it can be associated with attempt to fabricate or falsely implicate and we do not find any such circumstance present here.