STATE OF KARNATAKA Vs. MELVIN DSOUZA

JUDGEMENT

(1.) THIS is an appeal preferred by the State of Karnataka and it is directed against the judgment of the learned sessions judge, dakshina kannada in sessions case No. 150 of 1993. Of the four accused, three of whom are brothers and the fourth one being the wife of a-3, are closely related to the p. ws. And to the deceased insofar as they belong to the same family and they live next to each other. It is alleged that on the early morning of 26-6-1993 at about 6. 30 a. m. , a dispute arose between the two parties insofar as P. W. 3 had erected a fencing in the garden land between the properties which were in possession of the two parties in order to prevent persons and cattle from passing through his land. According to P. W. 3, he did this because, the accused were not allowing him to take water from their land. The accused are alleged to have not only objected to the fencing, but they started removing it in the course of which, a quarrel took place. The prosecution alleges that in the course of the events that followed, accused nos. 1 and 2 dealt blows to the deceased and to P. W. 3 and that as a result of these blows, the deceased got injured and ultimately died, whereas P. W. 3 though injured, survived the assault. It is relevant to record that a-4 who is a lady and who is the wife of a-3, was aged about 48 years and is a middle aged person. The record shows that a-4 had sustained an injury of some seriousness in the course of this incident and one of the defence taken up before the lower court was that the p. ws. Had assaulted a-4 and because of this, the other accused virtually came to her rescue in order to extricate her and save her and in the process, the deceased and P. W. 3 sustained injuries. The learned trial judge has very carefully assessed all the evidence on record and the judgment is a well considered and detailed judgment wherein the learned judge has also had occasion to examine the position in law and to hold that in substance, it would be impossible to record a conviction against the accused. All the four accused were accordingly acquitted of the charges under Section 326 read with Section 34, Section 324 read with Section 34 and Section 302 read with Section 34, IPC respectively. It is against this order of acquittal that the present appeal has been preferred.

(2.) THE main submission canvassed by the learned s. p. p. is that undoubtedly the learned trial judge has considered every aspect of the case and has devoted considerable amount of attention to a revaluation of the evidence before him, but the learned Advocate submits that in the process, the learned judge has unduly carried away by some insignificant factors and has discarded the evidence which was otherwise more than sufficient to record a conviction. Learned Advocate has taken us in detail through the medical evidence to start with and he has pointed out that as far as the deceased is concerned, that he has suffered a serious head injury which was dealt with so much offeree, that it has resulted even in fractures of the vertebrae. The doctor has clearly opined that such an injury could be caused if a full-blooded blow were to be landed on the head with a heavy wooden object such as m. o. 1. Similarly, the learned Advocate has drawn our attention to the injuries sustained by P. W. 3 and he has pointed out that though the injury is not as serious as the one received by the deceased, that it could have been sustained under similar circumstances. Learned Advocate has submitted that P. W. 3 has very clearly given the background of the case in his evidence, that there is no difficulty with regard to identification because the parties know each other and furthermore, P. W. 3 has deposed to the fact that it was the accused who were the aggressors. In this background, learned Advocate has submitted that the reasons on which the evidence of P. W. 3 has been rejected by the trial court are unsustainable. His contention is that the evidence of P. W. 3 is corroborated by that of p. ws. 4, 5, 6 and 7 who are persons who arrived on the scene virtually seconds after the assault has taken place. He also submits that in the background of hostility which existed between the parties, that it is very clear that the accused were responsible for the assault in question and that consequently, a conviction must follow.

(3.) AS against this position, the respondents' learned Advocate submitted that the prosecution evidence is inconclusive and that having regard to the fact that there is a background of hostility between the parties, that the court must insist upon independent evidence in a case of this type before recording a conviction on such serious charges. Learned Advocate has taken us in some detail through the evidence on record and he has sought to emphasize the fact that a-4 who is a lady, has sustained an injury in this incident and his argument proceeds on the footing that in this background, if the accused had come to the rescue of a-4, that there is every possibility that some injuries may have occured. The submission proceeds on the footing that the trial court was perfectly justified in having not only rejected the prosecution evidence, but having also come to the conclusion that the accused could have been acting in exercise of the right of self-defence. As regards the medical evidence, the learned Advocate has sought to place heavy reliance on the fact that the P. W. 3 himself admits that in the course of the incident, the participants were pushing and pulling each other and that they had also fallen down on the ground in the course of the fight. Learned Advocate draws our attention to the fact that the doctor has opined that the injuries in question could also be possible if the persons were to fall violently on a hard substance or in particular, on a stone. He also draws our attention to that part of the evidence where there is some reference to the use of stones and stone throwing and he attributes the injuries possibly to this activity. Learned Advocate also submits that where the trial court which had the benefit of assessing the demeanour of the witnesses in the course of the trial, has carefully examined all the evidence and in the course of a detailed judgment come to the conclusion that the evidence does not inspire confidence, that this court ought not to interfere with the decision unless it can be demonstrated that the verdict in question is incorrect to the extent of categorising it as being perverse. In sum and substance, the learned Advocate submits that this is not a case in which the appeal court should exercise its powers in the face of a detailed and well considered judgment.