STATE Vs. T K SADASHIVAIAH BIN KODIMALLAPPA

JUDGEMENT

(1.) THE State of Karnataka has assailed the judgment and Order dated 20th august, 1993 in c. c. No. 102 of 1991 on the file of the j. m. f. c. , koratagere. The incident was one of some seriousness where it is alleged that on 27-9-1990 the four accused are alleged to have, in furtherance of their common intention, at thita grama, sy. No. 65, assaulted akkanagamma after having trespassed into her field and that they have committed offences punishable under sections 323 and 326 read with Section 34, Indian penal code. There is also a subsidiary charge under Section 506, Indian penal code read with Section 34, Indian penal code in respect of threats that the accused are alleged to have held out at the time of the incident. The injured akkanagamma lost four teeth as a result of this incident and sustained some other minor injury and the accused were arrested and charge-sheeted after which they faced the trial; the trial court after recording the evidence came to the conclusion that there were inter se inconsistencies and that there were also certain serious deficiencies in the prosecution evidence and that consequently it would be unsafe to record a conviction. The present appeal is directed against that order.

(2.) THE learned state public prosecutor has taken us through the entire record and he points out that the trial court has virtually rejected the prosecution evidence on certain unsustainable grounds the first of them being that the tooth or teeth in question were not produced. Also, the weapon in question, namely, the stick or club has also not been produced. Learned counsel submitted that in the light of the medical evidence and the evidence of the injured person, that the non-production of the teeth is inconsequential. We are in total agreement with this submission in so far as the injured lady has herself stated that two of the teeth had fallen out and that the other- two were loosened and had to be removed. There is some discrepancy with regard to whether she lost one tooth or two teeth in the assault because the medical certificate refers to one tooth where she categorically mentions two teeth. Normally, we would not have attached much significance to this but the learned Advocate who represents the other side pointed out that each of these factors seriously impeaches-the credibility of the evidence and makes it unsafe to base a conviction. There is considerable justification in this submission because we need to take this argument into consideration while analysing the evidence of the remaining witnesses and we have to straightaway record that there is virtually no material to sustain any charge as against accused 2. Again, despite there being a charge under Section 34, Indian penal code, there appears to be a direct contradiction between the version of the different witnesses with regard to all of them taking part and the all important question of who dealt the stick blow and it would be rather hazardous in the light of this uncertain record to hold that irrespective of who dealt the blow that the accused are liable because of the common intention charge. The correct position in law is the reverse in so far as even if it is established that a particular accused has dealt the blow, the liability would devolve on the others also, but it would be improper in law to hold that where the evidence does not establish this fact and irrespective of that position, that a conviction could still be sustained.

(3.) THE learned state public prosecutor submitted that the accused have not explained the injuries and that so long as the incident is established and the presence of the accused is also established, that it would be sufficient for purposes of recording a conviction. We find it rather difficult to accept this argument because the charges are serious and so are the consequences to the accused and the burden on the prosecution can never be either reduced or bypassed and therefore, a court would not be permitted to jump to conclusions particularly where it involves short circuiting the prosecution defects.