Laxmi Kamanna Kumbargi vs Rudrappa Kallappa Kumbargi
2021 Latest Caselaw 3123 Kant

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            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

        DATED THIS THE 09TH DAY OF AUGUST, 2021

                        BEFORE

      THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

            CRIMINAL APPEAL NO.2575 OF 2012

BETWEEN
LAXMI KAMANNA KUMBARGI,
AGE: 37 YEARS,
OCC: HOUSEHOLD WORK,
R/O: DEVAGIRI,
TQ AND DIST: BELGUAM.
                                              ... APPELLANT

(BY SRI. SRINAND A PACHHAPURE, ADVOCATE)

AND
1.    RUDRAPPA KALLAPPA KUMBARGI
      AGE: 50 YEARS, OCC: AGRICULTURE,
      R/O. DEVAGIRI,
      TQ AND DIST: BELGAUM.

2.    PRABHU KALLAPPA KUMBARGI,
      AGE: 38 YEARS, OCC: COOLIE,
      R/O. DEVAGIRI,
      TQ AND DIST: BELGAUM.

3.    VITHAL BHARMA KUMBARGI,
      AGE: 22 YEARS, OCC: COOLIE,
      R/O. DEVAGIRI,
      TQ AND DIST: BELGAUM.

4.    VAJIR RUDRAPPA KUMBARGI,
      AGE: 21 YEARS, OCC: COOLIE,
      R/O. DEVAGIRI,
      TQ AND DIST: BELGAUM.
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5.   SMT. SHANTAWWA
     W/O. RUDRAPPA KUMBARGI,
     AGE: 41 YEARS,
     OCC: HOUSEHOLD WORK,
     R/O. DEVAGIRI,
     TQ AND DIST: BELGAUM.

6.   SMT. REKHA
     D/O. RUDRAPPA KUMBARGI,
     AGE: 23 YEARS,
     OCC: ANGANWADI WORKER,
     R/O. DEVAGIRI,
     TQ AND DIST: BELGAUM.

7.   SMT. SHOBHA
     W/O. PRABHU KUMBARGI,
     AGE: 28 YEARS, OCC: COOLIE,
     R/O. DEVAGIRI,
     TQ AND DIST: BELGAUM.

8.   SMT. TULASAWWA
     W/O. KALLAPPA KUMBARGI,
     AGE: 67 YEARS,
     OCC: HOUSEHOLD WORK,
     R/O. DEVAGIRI,
     TQ AND DIST: BELGAUM.

9.   THE STATE OF KARNATAKA,
     BY KAKATI POLICE STATION,
     NOW REPRESENTED BY SPP.
                                          ...RESPONDENTS
(BY SRI. SANJAY S KATAGERI, ADVOCATE FOR R1-R8;
SRI. RAMESH B CHIGARI, HCGP FOR R9)

     THIS CRIMINAL APPEAL IS FILED U/S 378(1) OF CR.P.C.
SEEKING TO CALL FOR THE RECORDS IN S.C.NO.407/2010 AND
TO CONVICT THE ACCUSED & COMPENSATION BY MODIFYING
THE JUDGEMENT OF ACQUITTAL DATED 01.12.2011 PASSED BY
THE PRESIDING OFFICER, FAST TRACK COURT-III, BELGAUM,
IN S.C.NO.407/2010, IN THE INTEREST OF JUSTICE.
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      THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
28.07.2021 AND COMING ON FOR PRONOUNCEMENT OF ORDER
THIS DAY, THE COURT MADE THE FOLLOWING:

                        JUDGMENT

The appellant/complainant has filed this appeal

under Section 378(1) of the Code of Criminal Procedure,

1908, challenging the judgment of acquittal passed by the

Presiding Officer, Fast Track Court-III and Additional

M.A.C.T., Belgaum in Sessions Case No.407/2010 dated

01.12.2011.

2. For the sake of convenience, parties herein are

referred with their original ranks occupied by them before

the Trial Court.

3. Brief facts leading to the case are that on

01.06.2010 at 7.15 a.m., in the morning, in Devagiri

village, within the limits of Kakati Police Station, all the

accused with common object formed an unlawful assembly

by holding deadly weapons in the pretext that the

complainant is discharging bathroom water into their site

and trespassed into the house of the complainant and

abused the complainant in filthy language. It is alleged

that accused No.2 gave blow to the complainant by Koyta.

It is alleged that accused No.6 assaulted her by stone and

when CW8 intervened, accused No.1 gave blow to him by

koyta and accused No.8 gave blow by club to CW8 causing

grievous injury to him. It is also alleged that accused No.3

assaulted CW6 by club while accused No.4 assaulted CW9

by club. Hence, it is alleged that the accused have caused

simple as well as grievous injuries to the complainant and

others and attempted to their lives and while they were

leaving, they criminally intimidated them and in this regard

complainant lodged a complaint. After lodging the

complaint, the investigation officer has registered the

crime and after investigation, submitted charge sheet

against the accused before the Magistrate. The learned

Magistrate has taken cognizance and registered the case in

C.C.No.1669/2010 and later committed the case to the

Principal District and Sessions Judge, Belgaum by

exercising the powers under Section 209 of the Code of

Criminal Procedure, 1908. Then the matter came to be

registered in S.C.No.407/2010 and made over to the Fast

Track Court-III for disposal in accordance with law. The

presence of the accused was secured and the charges have

been framed against them for the offences punishable

under sections 143, 147, 148, 452, 307, 326, 504, 506

read with section 149 of IPC and same was read over and

explained to them. The accused pleaded not guilty and

claimed to be tried. The prosecution has examined in all 16

witnesses as PW1 to PW16 and 17 documents were

marked as Ex.P1 to Ex.P17 and material objects M.O.1 to

18 were also relied by the prosecution. Thereafter, the

statement of the accused under Section 313 of the Code of

Criminal Procedure, 1908 was recorded by the learned

Sessions Judge to enable the accused to explain the

incriminating evidence appeared against them in the case

of the prosecution. The facts of the case are totally denied

by the accused but they did not choose to lead any oral or

documentary evidence in support of their defence. After

having heard the arguments and perusing the records, the

learned Sessions Judge has raised the following points for

consideration:

1. Whether the prosecution proves beyond all reasonable doubt that on 1-6-2010 at about 07:15 hours Devagiri village within the limits of Kakati Police Station all the accused having common object, formed into unlawful assembly holding with deadly weapons and picked up a quarrel against the complainant towards the leaving of bathroom water in the vacant site thereby committed an offence punishable u/s 143, 147, 148 r/w 149 of IPC?

2. Whether the prosecution further proves beyond all reasonable doubt that on the aforesaid date time and place all the accused having common object each accused being a member of unlawful assembly accused No.3 assaulted to the complainant with Koyta on her head, accused No.6 assaulted to her with stone, with an intention to murder, thereby committed an offence punishable u/s 307 r/w 149 of IPC?

3. Whether the prosecution further proves beyond all reasonable doubt that on the aforesaid date time and place all the accused having common object each accused being a member of unlawful assembly the accused No.1 assaulted to CW8 with Koyta and accused No.8 with club, causing

voluntarily grievous hurt to CW8 thereby committed an offence punishable u/s 326 r/w section 149 of IPC?

4. Whether the prosecution further proves beyond all reasonable doubt that on the aforesaid date time and place all the accused having common object each accused being a member of unlawful assembly the accused No.3 assaulted to CW7 with club and accused No.5 & 7 assaulted to CW6 with club, accused No.4 assaulted to CW9 with club, thereby causing voluntarily simple hurt. Thus committed an offence punishable u/s 324 r/w section 149 of IPC?

5. What order?

4. Then after appreciating the oral and

documentary evidence, the learned Sessions Judge by

judgment dated 01.12.2011 answered the above points in

negative and acquitted the accused for the charges leveled

against them. Being aggrieved by the judgment of

acquittal, by seeking leave of the Court, the complainant

has filed this appeal. It is important to note here that the

state has not preferred any appeal.

5. The records of the Trial Court are secured.

6. Heard the arguments advanced by the learned

counsel for appellant and the learned counsel appearing for

respondents 1 to 8 and also the learned HCGP for

respondent No.9/state. Perused the records.

7. The learned counsel for appellant would submit

that the judgment of acquittal is bad in law and against the

materials on record. He would further submit that the Trial

Court has ignored the fact that PW8 has suffered grievous

injuries and all the witnesses have fully supported and

corroborated each others statement. He would also

contend that accused No.2 assaulted by Koyta and club on

PW1 and other witnesses, and PW2, PW7 and PW9 have

also sustained injuries. He would also contend that PW11

and 14 are eyewitnesses but the learned Sessions Judge

has come to the conclusion that they are interested

witnesses and has only considered the minor discrepancies

ignoring the major role played by the accused. He would

further submit that the judgment of acquittal leads to

miscarriage of justice and hence, he would seek for

allowing the appeal by setting aside the impugned

judgment of acquittal and sought for convicting the

respondents 1 to 8 herein.

8. Per contra, learned counsel for respondents 1

to 8 would submit that there are so many discrepancies in

the evidence led by the prosecution and lot of

contradictions were noticed and the evidence was not

corroborative to each other. Hence, he would contend that

the Trial Court has rightly appreciated the oral and

documentary evidence and arrived at a just decision. He

would contend that considering the facts and

circumstances, this is not a fit case wherein the discretion

can be exercised and as such he would seek for rejection

of the appeal.

9. Having heard the arguments and perusing the

records, now following point would arise for my

consideration:

"Whether the judgment of acquittal passed by the Trial Court suffers from infirmity,

illegality and perversity so as to call for any interference by this Court?"

10. At the outset, it is to be noted here that the

accused were prosecuted for the offences punishable under

Sections 143, 147, 148, 452, 307, 326, 504, 506 read with

Section 149 of IPC and this appeal is filed by the

complainant while State has not challenged the impugned

judgment. It is also evident that the accused and

complainant and other injured witnesses are relatives and

there is dispute between them regarding property, and

they all are residing in Devagiri village itself.

11. To prove the guilt of the accused, prosecution

has examined in all 16 witnesses as PW1 and PW16. PW1-

Laxmamma is the complainant and injured, while PW2 is

also another injured. PW3-Narayan has deposed regarding

issuing property extract. PW4 is the scribe of the complaint

and he deposed regarding drafting the complaint as per

the instructions of the complainant. PW5 is seizure

mahazar witness. PW6-Goudappa is the spot mahazar

witness. PW7-Gangawwa, PW8-Gourawwa and PW9-

Kashawwa are the injured witnesses. PW10-Dr.Shivakumar

is the medical officer, who treated the injured. PW11-

Kempanna is an eyewitness. PW12-Shivarai has deposed

regarding submitting FIR to the magistrate and PW13 has

deposed regarding he submitting material objects to RFSL.

PW14-Sada Ningappa Basaragi is another eyewitness and

PW15 is a police constable and he deposed regarding

apprehending the accused. PW16 is the investigating

officer. Ex.P1 is the complaint, Ex.P2 is the property

extract, Ex.P3 is the seizure mahazar, Ex.P4 is the spot

mahazar, Ex.P5 is the cloth seizure mahazar, Ex.P6 to 9

are the wound certificates and Ex.P10 is final opinion,

Ex.P11 is the FIR and Ex.P14 is the rough sketch and

Ex.P16 is the FSL report.

12. As per the case of the prosecution, the alleged

incident has taken place on 01.06.2018. It is alleged that

on that day morning at 7.15 hours in Devagiri village all

the accused having made preparation by holding deadly

weapons trespassed into the house of the complainant

under the pretext that she is letting the bathroom water in

their property and she was assaulted by accused No.2 and

accused No.6 at the first instance. It is also alleged that

when she cried for help, the other witnesses came there to

rescue her and they were also attacked and they were also

abused and threatened by the accused persons.

13. In the instant case, complainant-PW1, PW2-

Manjula, PW7-Gangawwa and PW8-Gourawwa are the

injured. PW9-Kashawwa, PW11-Kempanna and PW14-Sada

Basargi claims to be eyewitnesses to the alleged incident.

However, the evidence of PW11 and PW14 discloses that

their houses are situated at a distance of half a kilometer

away from the house of the complainant. Further, their

evidence disclose that when they rushed to the spot of the

incident, by that time, the assault by accused was

concluded and if they are supposed to cover up distance of

½ km, definitely the major incident ought to have been

concluded. Further, no other neighbours are forthcoming

to support prosecution and these two interested witnesses

claiming that they are eyewitnesses to the alleged

incident. But the cross-examination of PW11 discloses that

he rushed to the spot after hearing the cry of complainant

and as such admittedly he could not have witnessed the

assault on the complainant. In cross-examination, he has

further admitted that when he had been to the spot, the

galata had already stopped. Hence, it is hard to accept

that PW11 and PW14 are the eyewitnesses and on the

contrary the evidence of PW14 discloses that he is a

relative of the complainant.

14. PW9-Kashawwa was also shown to be one of

the eyewitnesses. Admittedly, she is also relative of the

complainant. Her evidence discloses that the complainant

came to her house and disclosed regarding assault by

accused No.2-Prabhu and accused No.6-Rekha. This

version itself discloses that she was not an eyewitness.

Further, no case of the prosecution is made out regarding

assault on this witness, but however she claimed that

accused have also assaulted her and she asserts that since

she did not sustain any injury, she has not taken any

treatment. Hence, it is evident that she did tried to

improvise her version. She is daughter of Gangawwa and

admittedly she is interested witness. Her evidence also

does not corroborate the other evidence led by the

prosecution.

15. On perusal of the complaint, it is evident that

in the complaint, there is only reference of accused No.2

assaulting by Koyta and accused No.6 assaulting by stone

to the complainant. Further, in the compliant, there is

allegation regarding other accused joining accused No.2

and assaulting other witnesses, but no specific overt act is

alleged in the complaint. Admittedly, there is civil dispute

between the parties regarding the backyard and the galata

is said to have been occurred due to discharge of

bathroom water in the property of the accused. As per the

evidence of PW1, accused No.2 gave blow on her head by

Koyta, while accused No.6 gave blow on her right forearm

and right leg by stone, but wound certificate Ex.P7 reveals

that she suffered only lacerated wound on her scalp and

contusion on right forearm. If at all she was assaulted by

Koyta, it is hard to accept that she sustained simple

injuries as referred in Ex.P7. Hence, it is evident that she

is also exaggerating the things.

16. The evidence of PW2, PW7 and PW8 also does

not help the prosecution regarding the assault made on

the complainant as their evidence disclose that only they

got information after hearing hue and cry of the

complainant. Hence, they are not eyewitnesses to the

incident of assault on the complainant. Further, PW2, in

her cross-examination, admitted that she was not present

when accused No.2 and accused No.6 assaulted the

complainant. Further, in wound certificate Ex.P15, there is

reference that history was given regarding assault by 15

persons with sickle. Sickle and Koyta are two different

weapons and there is lot of difference between these two

weapons. No cut injuries were found on the head of PW1.

17. PW2-Manjula another injured witness has

deposed in her evidence regarding accused, Shantawwa

and Shobha, assaulting her with clubs on her knee and

hand, but PW1 deposed that PW2 was also assaulted by

stone. Same is the statement of PW7 and PW8. But PW2

herself has not claimed that she was assaulted by stone.

Further, her wound certificate at Ex.P8 shows that she was

found to have sustained lacerated wound on her left leg

and contusion. The history given there was also assault by

15 persons with sickle. If at all she was assaulted by

stones and clubs as claimed, she could not have sustained

simple injuries. Further, she was conscious when she had

given her statement before the medical officer and her

statement discloses that she has given history as "assault

with sickle by 15 persons". Therefore, her evidence also

creates a doubt in the mind of the court.

18. As regards PW7-Gangawwa, in Ex.P1 it is

stated that accused have assaulted her by stone and club

on her head and other parts of the body, but in the

evidence of PW1, PW2 and PW8, they have deposed that

accused, Vittal and Vajir assaulted Gourawwa with Koyta

on her stomach and hand, but PW7, who is injured, has

not deposed regarding assault by Vittal and Vajir and

claimed that accused Shantawwa, Rekha, Shobha and

Tulasawwa assaulted her with stone. Further, on perusal of

the wound certificate of this witness, which is at Ex.P6, it

discloses that she suffered contusion on the wrist and left

hand and lacerated injury on the chin and on left lower

forearm. If at all she was assaulted by a Koyta, as alleged

in the compliant, she could have suffered grievous injuries.

Further, the specific allegations have been made that she

was assaulted on her stomach but the wound certificate is

silent regarding the injuries caused to her abdomen.

Hence, it is evident that this witness has also tried to

exaggerate regarding the injuries sustained by her. Hence,

the evidence of the prosecution witnesses creates a doubt

in this regard.

19. PW8-Gourawwa claimed that accused-

Rudrappa assaulted her with Koyta on her head and when

she attempted to avoid, her index finger was cut and then

accused-Tulassawwa assaulted her with club on her hands

and legs. But PW7-Gangawwa stated that Prabhu and

Rudrappa assaulted Gourawwa with Koyta while PW2

claims that both Prabhu and Rudrappa assaulted

Gourawwa with Koyta. PW9 claims that only Rudrappa has

assaulted Gourawwa. The stands of these witnesses

entirely different and they are inconsistent with each

other. The wound certificate of this witness at Ex.P9

discloses that there is a fracture of head of 2nd proximal

phalange, which is grievous and contusion on the right

hand, lacerated wound on chin and contusion of the left

wrist and are all simple injuries. Quite contrarily PW14

deposed that accused-Rudrappa assaulted Gourawwa by

Koyta while accused-Vittal and Tulasawwa assaulted with

club, which is again inconsistent and contrary evidence.

Hence, it is evident that the evidence of the witnesses is

inconsistent with each other and they does not corroborate

with each other. There is no consistency regarding

individual overt act. Further, there is also inconsistency

regarding place of assault. The complainant all along claim

that accused trespassed in her house and assaulted her,

but she further deposed that later on she ran to the house

of her mother-in-law wherein the further incident has

taken place, but that place is not shown as spot of

incident. Mere alleged seizure of Koyta and other material

objects does not establish the guilt of the accused. All

along all the witnesses have given statement before the

medical officer that there was assault by 15 persons with

Koyta, clubs and stones. If that would have been the case,

the witnesses could have suffered more grievous injuries

all over the body but that was not the case, which

establishes that the witnesses have tried to improve their

evidence for one or the other reason and the real facts are

not placed before the court.

20. Further, all the witnesses examined herein

including eyewitnesses are close relatives. Admittedly,

there are residential house of Sambhaji Kumbhargi and

others near the house of the complainant, but the

statement of neighbouring witnesses were not at all

recorded by the investigating officer and no explanation is

forthcoming. Very interestingly the investigating officer has

recorded the statement of PW11, PW14 whose houses are

situated at a distance of ½ km from the house of the

complainant. This is quite natural that in a village,

normally if any galata takes place, people of entire area

will gather, but in the instant case, the statements of

neighbours are not at all forthcoming and they would have

been best witnesses in natural course. The complainant

also tried to shift the scene of offence and material

corroboration is not there. The learned Sessions Judge

considering all these lapses and considering the

inconsistency in the evidence of each witness and

discrepancies, has come to a conclusion that the

prosecution has failed to prove the guilt of the accused

beyond reasonable doubt. Even in the instant case, the

prosecution has not challenged and it is only the

complainant, who has prosecuted this appeal. Learned

Sessions Judge has appreciated the oral and documentary

evidence in detail and considering the improvements,

contradictions and variations in the evidence, he has

extended the benefit of doubt in favour of the accused.

21. Learned counsel for respondent has placed his

reliance on the decision of the Hon'ble Apex Court in the

case of Hakeem Khan and others v. State of Madhya

Pradesh reported in (2017) 5 SCC 719 wherein the

Hon'ble Apex Court has held as under:

Penal Code, 1860 - Ss. 302/149 - Murder trial - Reversal of acquittal by High Court - High Court substituting its view for that trial court - When permissible - Principles summarised - Not when it is based on a possible view, which appellate court may very well disagree with, but which view of trial court is not incorrect - "Possible view" of trial court which appellate court may very well disagree with but which cannot be interdicted, distinguished from "incorrect view" of trial court which must be interdicted by appellate court - Held, so long as view of trial court can be reasonably formed, regardless of whether High Court agrees with the same or not,

verdict of trial court cannot be interdicted and view of High Court supplanted over and above the view of trial court.

22. Hence, in view of the principles enunciated, the

view of the trial Court can be reasonably affirmed,

regardless as to whether this Court agrees with the same

or not, the verdict of the Trial Court cannot be interdicted

and the view of this Court cannot be supplanted over and

above the view of the Trial Court.

23. On appreciation of the evidence, the view

taken by the Trial Court appears to be more reasonable

and not erroneous. As such, in view of the principles

enunciated in the above decision, question of taking a

different view does not arise at all. The leaned Sessions

Judge in detail has appreciated the oral and documentary

evidence and by highlighting the discrepancies in the

evidence and inconsistencies, has extended the benefit of

doubt in favour of the accused and that view is reasonable

and does not call for any interference by this Court. As

such, the judgment of acquittal passed by the learned

Sessions Judge does not suffer from any infirmity, illegality

or perversity so as to call for any interference by this

Court. Hence, I answer the point under consideration in

the negative and proceed to pass the following;

ORDER

The appeal is dismissed by confirming the judgment of acquittal passed by the Presiding Officer, Fast Track Court-III and Additional M.A.C.T., Belgaum in Sessions Case No.407/2010 dated 01.12.2011.

In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are dismissed accordingly.

Sd/-

JUDGE

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