State Of Karnataka vs Mahaboobsab Subhansab Onti
2021 Latest Caselaw 338 Kant

         IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH
     DATED THIS THE 07 t h DAY OF JANUARY 2021
                      BEFORE
     THE HON'BLE MR.JUSTICE RAVI V.HOSMANI

        CRIMINAL APPEAL No.100115 OF 2014


BETWEEN:

STATE OF KARNATAKA
REPRESENTED BY THE POLICE
SUB-INSPECTOR,
GADAG, THROUGH THE ADDL.
STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT BUILDING,
DHARWAD.
                                        ...APPELLANT

(BY SRI.V.M.BANAKAR, ADDL S.P.P.)

AND:

1.     MAHABOOBSAB SUBHANSAB ONTI
       AGE: 36 YEARS,
       OCC: AGRICULTURE,

2.     MAHABOOBSAB ISMILSAB MALIKOPPA
       AGE: 34 YEARS,
       OCC: AGRICULTURE,

3.     MODIN BEE
       W/O MABUSAB PAYAPPANAVAR
                             2




     AGE: 43 YEARS,
     OCC: HOUSEHOLD WORK,

4.   BUJAN BEE W/O MOULASAB GANGAVATI
     AGE: 39 YEARS, OCC: HOUSEHOLD WORK,

5.   SULEMAN @ DAVALSAB
     S/O MODINSAB JIGARI @ ANNIGERI
     AGE: 56 YEARS, OCC: AGRICULTURE

6.   SALEEM S/O DAVALSAB BANDI
     AGE: 30 YEARS, AGRICULTURE,

     ALL ARE R/O.HARIPUR,
     TALUK SHIRAHATTI
                                       ...RESPONDENTS


(BY SRI D.L.LADKHAN AND
 SRI ASHOK T.KATTIMANI, ADVOCATES)


     THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378 (1) AND (3) OF CR.P.C. SEEKING TO GRANT LEAVE
TO APPEAL AGAINST THE JUDGMENT AND ORDER OF
ACQUITTAL     DATED     12.02.2014   PASSED    IN
CRL.A.NO.8/2013 BY THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, GADAG AND BE SET ASIDE THE
JUDGMENT AND ORDER OF ACQUITTAL AND CONFIRM THE
JUDGMENT AND ORDER PASSED BY THE TRIAL COURT IN
C.C.NO.71/2009 DATED 04.01.2012.

     THIS APPEAL BEING RESERVED FOR JUDGMENT ON
26.11.2020, THIS DAY, THE COURT, DELIVERED THE
FOLLOWING:
                                       3




                               JUDGMENT

Challenging the judgment dated 12.02.2014 passed

by the Principal District and Sessions Judge, Gadag in

Criminal Appeal No.8/2013 acquitting accused Nos.2, 4, 6,

7, 10 and 11 of the offences punishable under Section

143, 147, 323, 324, 504, 506 read with Section 149 of the

Indian Penal Code (for short 'IPC'), the State has filed this

appeal.

2. Brief facts leading to the case are that a

complaint was filed by one Rajashekhar Veerappa

Desaipatti stating that during lifetime of his father,

Subansab Mabusab Onti offered to sell land bearing

R.Sy.No.246/1 measuring 4 acres 1 guntas and in terms of

an agreement for sale handed over possession of land on

26.04.1984 which continued with complainant. That on

06.07.2008 at about 10.30 a.m. when complainant went

to his land, he saw Subhansab and his relatives tilling it.

He objected on the ground that court case was pending,

and requested them not to cultivate. At that time, (1)

Subhansab Mabusab Onti, (2) Mabusab Subhansab Onti,

(3) Dadibi Subansab Onti, (4) Babusab Ismailsab

Mulekoppa, (5) Nannubi wife of Allisab Sanadi, (6)

Modinbi wife of Mabusab Payappanavar, (7) Bujanbi wife

of Moulasab Gangavathi, (8) Hussainbi wife of Aminsab

Mulekoppa, (9) Raina wife of Mabusab Onti, (10) Davalsab

Modinbi Gigari, (11) Salim Davalsab Onti, formed an

unlawful assembly, abused and assaulted the complainant.

When his wife, brother and daughter-in-law came to his

rescue, his wife Yogita was assaulted by Modinbi, Bujanbi

and Salim Onti with their hands and she was dragged

around. Salim hit Yogita with a stone, on her hand.

Gururaj was also assaulted. When they cried in pain, one

Gangappa Ishwarappa Baligeri and Geddappa Fakirappa

Itagi came and rescued them. While going back, accused

threatened to do away with their life some other time as

they were saved on that day.

3. The complaint was given on 06.07.2008 at

20:20 hours. Immediately Crime No.103/2008 was

registered at Police Station, Shirahatti and it was made

over to the court of jurisdictional Magistrate. After

investigation, charge sheet was filed in C.C.No.71/2009

against accused Nos.1 to 11, for offences punishable

under Section 143, 147, 323, 324, 504, 506 read with

Section 149 of IPC.

4. Upon appearance, and being read over the

charges, accused pleaded not guilty and sought trial. In

support of the charges, prosecution examined nine

witnesses as PW1 to PW9 and marked four documents as

Exs.P1 to P4. Thereafter incriminating material was

explained to accused, who denied everything without

offering any explanation. Their statement under Section

313 was recorded. No defence evidence was led.

5. Based on the material available, trial court

framed following points for consideration:

1. Whethe r the pro secutio n pro ves beyond all reasonable doubt that on 06.07.2008 at abo ut 10.00 a.m. in the land R.S .No.246 at Haripur

village which is situate d within the limits of Shirahatti Police Station, all the accused with an unlawful asse mbly with a common object, picke d up quarrel with first info rmant & the reby committed an o ffence punishable U/Sec. 143 r/w 149 of IPC?

2. Further, whethe r the prosecution pro ves beyond all reasonable doubt that o n the same date , time and place, all the accused with an unlawful assembly with a common object picke d up quarrel with first info rmant by using fo rce and thereby committed an offe nce punishable U/Sec. 147 r/w 149 o f I PC?

3. Further, whethe r the prosecution pro ves beyond all reasonable doubt that o n the same date , time and place, all the accused with an unlawful assembly with a common object picke d up quarrel with first informant and assaulted with hands to him and C.W.1, 4, 5 and voluntarily cause d hurt to them and thereby committed an o ffence punishable U/Sec.323 r/w. 149 o f IPC?

4. Further, whethe r the prosecution pro ves beyond all reasonable doubt that o n the same date , time and place, all the accused with an unlawful assembly with a common object picke d up quarre l with first info rmant and C.W.1, 4, 5

& 6 and assaulte d with hands and stones and there by committed an offe nce punishable U/Sec. 324 r/w 149 o f I PC?

5. Further, whethe r the prosecution pro ves beyond all reasonable doubt that o n the same date , time and place, all the accused with an unlawful assembly with a common object picke d up quarre l with first info rmant and C.W.1, 4, 5 & 6 and abuse d in filthy language knowing fully well that such an abusement will break the public peace or commit any other type of offence and thereby committe d an offence punishable U/Sec. 504 r/w. 149 of IPC?

6. Further, whethe r the prosecution pro ves beyond all reasonable doubt that o n the same date , time and place, all the accused with an unlawful assembly with a common object picke d up quarre l with first info rmant and C.W.1, 4, 5 & 6 and posed life threat to them and thereby committed an o ffence punishable U/Sec. 506 r/w. 149 o f IPC?

7. What order?

6. After answering Point Nos.1 to 6 partly in

affirmative only in respect of accused Nos.2, 4, 6, 7, 10

and 11, proceeded to acquit accused Nos.1, 3, 5, 8 & 9.

But accused Nos.2, 4, 6, 7, 10 & 11 were convicted and

imposed sentence as follows:

Accused No .2, 4, 6, 7, 10 and 11 are sentence d to undergo simple imprisonment fo r six months fo r the offence punishable u/sec. 143 r/w. 149 of IPC and directed to pay fine o f Rs.500/- each in default to undergo simple imprisonment fo r 45 days.

         Accused        No .2,    4,   6,   7,   10   and   11   are
    sentence d    to    undergo        simple    im priso nment   1

year fo r the offence punishable u/sec. 147 r/w. 149 of IPC and directed to pay fine of Rs.1,000/- each in default to undergo simple imprisonment for 3 months.

Accused No .2, 4, 6, 7, 10 and 11 are sentence d to unde rgo simple imprisonment fo r 6 months fo r the o ffence punishable u/sec. 323 r/w 149 of I PC and directed to pay fine of Rs.500/- each in default to undergo simple imprisonment for 45 days.

Accused No .2, 4, 6, 7, 10 and 11 are sentence d to unde rgo simple imprisonment fo r 2 years fo r the o ffe nce punishable u/ Sec. 324 r/w. 149 of IPC and directed to pay fine of Rs.2,000/-

each in default to undergo simple imprisonment for 6 months.

Accused No .2, 4, 6, 7, 10 and 11 are sentence d to unde rgo simple imprisonment fo r 1 year fo r the offence punishable u/sec. 504 r/w. 149 of IPC and directed to pay fine of Rs.1,000/- each in default to undergo simple imprisonment for 3 months.

Accused No .2, 4, 6, 7, 10 and 11 are sentence d to unde rgo simple imprisonment fo r 1 year fo r the offe nce punishable u/ sec. 506 r/w 149 of IPC and directed to pay fine of Rs.1,000/- each in default to undergo simple imprisonment for 3 months.

Acting u/se c. 357 of Cr.P.C., it is also directed that out of fine amount o f Rs.36,000/- Rs.8,000/- shall be give n to P.W.1, 3, 4 and 5 as compensation.

Office is directed to furnish free certifie d copy o f this judgment to accuse d No.2, 4, 6, 7, 10 and 11 in compliance o f sec. 363( 1) Cr.P.C.

7. Challenging their conviction, accused nos.2, 4,

6, 7, 10 and 11 filed appeal before the Principal District

and Sessions Judge, Gadag in Criminal Appeal No.8/2013.

After hearing arguments and perusing the material on

record, appellate court framed following points for its

consideration.

1. Whether the court below committed an error in accepting the evidence of PW1, 3, 5 and 6 to base conviction?

2. Whether the conviction order is sustainable?

3. What order?

8. After answering Point No.1 in the affirmative,

Point No.2 in the negative, the appellate court proceeded

to set aside conviction and acquitted the appellants.

Challenging their acquittal by the appellate court, the

State is in appeal.

9. Sri V.M.Banakar, learned Addl.State Public

Prosecutor (ASPP) for appellant-State submitted that

impugned judgment passed by appellate court was wholly

unsustainable, there was no proper appreciation of the

evidence and material on record and the conclusions

arrived were arbitrary. It was submitted that the material

witnesses namely PWs1, 3 to 5 are the injured

eyewitnesses and PW1 is complainant. They duly

supported prosecution case. Their evidence is duly

corroborated by evidence of PW8-Doctor, who treated

them immediately after the incident and issued wound

certificates as per Exs.P5 to P8. The prosecution is also

supported by evidence of PW9, the Investigating Officer

(IO).

10. Learned ASPP further submitted that appellate

court without proper justification disbelieved evidence of

injured eyewitnesses and by taking note of minor

omissions concluded that version of prosecution witnesses

as too artificial. One of the reasons assigned by appellate

court is that neither the owners of neighbouring lands nor

inmates of inspection bungalow or girls' hostel locate d

nearby came to spot to rescue complainant. Hence, it

concluded that evidence led by prosecution was not

trustworthy. It was further submitted that though full

particulars of counter case were not available on record,

appellate court concluded that this was an instance of

case and counter case and acquitted the accused.

11. It was further urged that, appellate court also

laid emphasis on omission of prosecution to explain

contradiction with regard to registration of medico legal

case (MLC) and sending of intimation to police by doctor-

PW8, though it was not a material omission/ contradiction.

Even the reasoning assigned by appellate court regarding

delay in filing complaint was also not material, as

complaint was lodged on same day of assault after

complainant and his family members who were injured,

took treatment. Even delay of about ten hours in filing

complaint was not exorbitant or without any proper

explanation and therefore was not fatal. On the said

grounds, sought for setting aside acquittal of accused

Nos.2, 4, 6, 7, 10 & 11.

12. On the other hand, learned counsel Sri

D.L.Ladkhan and Sri Ashok T.Kattimani, for respondent-

accused submitted that entire prosecution case was

riddled with omissions and contradictions, therefore

extension of benefit of doubt to accused by appellate

court was justified. There were several unexplained

glaring and material contradictions and omissions in the

prosecution case which rightly led appellate court to

disbelieve prosecution witnesses. It was submitted that

except family members of complainant, absolutely no

other independent witness/eyewitness were examined

despite P.W.7 admitting presence of other people at the

time of incident. It was further argued that, admission of

counter case by the I.O. also was one of the important

circumstances that led appellate court to favour the

accused with acquittal and the same did not call for any

interference.

13. Heard learned counsel, perused the impugned

judgment and record.

14. From the above, it is seen that the occurrence

of the incident on 06.07.2008 is not disputed by the

accused as the accused do not deny it but they are

harping upon omissions and contradictions in prosecution

case. However, accused dispute specific overt-acts

attributable to them individually and denied the same

constituting any of the offences.

15. In order to establish the offences alleged

against accused, prosecution is required to establish the

following ingredients:

(A) Essential Ingredients constituting an offence punishable U/sec. 323 o f IPC are as unde r:

(i) That the accused caused hurt to another perso n;

(ii) That he cause d such hurt voluntarily;

(iii) That such a case was no t cove red under Sectio n 334 I .P.C.

(B) Essential Ingredients constituting an offence punishable U/sec. 324 o f IPC are as unde r:

(i) That the accuse d voluntarily caused hurt to another perso n.

(ii) That such a hurt was in e xception to cases provide d unde r Se ction 334.

(iii) That such hurt was caused.

(C) Essential Ingredients constituting an offence punishable U/sec. 504 o f IPC are as unde r:

(i) Intentionally insulting a pe rson and there by giving provocation to him;

(ii) The person insulting must inte nd o r know it to be like ly that such provocation will cause him to break the public peace or to commit any othe r offence .

(D) Essential Ingredients constituting an offence punishable U/sec. 506 o f IPC are as unde r:

1. Threate ning a person with any injury;

(i) to his perso n, re putation or prope rty, or

(ii) to the pe rson, or reputation of any one in whom that person is inte rested.

2. That threat must be with intent;

(i)     to cause alarm to that person; or

(ii)    to cause that person to do any act which he is

not legally bo und to do as the means of avo iding the e xecution o f such threat; or

(iii) to cause that person to omit to do any act which that perso n is legally entitled to do as the means of avoiding the executio n o f such threat.

16. PW1 is the injured eyewitness & complainant. In

his examination-in-chief, he reiterated the complaint

averments. PW1 stated that PW4 was verbally abused and

assaulted by accused Nos.6, 7 and 11. Accused No.11 hit

her with stone on chest. As his wife was in pain, she was

taken to hospital. PW3 and PW5 were also assaulted and

abused. At that time, PW6 and PW7 came and stopped the

quarrel. However, PW1 has stated that after the incident,

he went home and as he was thinking about it, there was

delay in giving complaint. During his cross-examination, it

is elicited that a civil suit namely O.S.No.110/1989 was

filed by complainant's father against accused and that

accused Nos.4 and 8 had filed civil suit O.S.No.317/1995

against complainant and their brothers, in which there

was a decree for separate share. There is further

elicitation of admission that accused had filed a criminal

case in which PW4 was an accused. It is also elicited that

complainant does not specifically remember which of the

accused abused P.W.1, 3 to 5, but stated that all the

accused abused them. PW1 further admits that in the

complaint, he stated that his family members were

informed about incident by some passersby. The evidence

of P.W.1 insofar as the overt act of accused No.11

assaulting P.W.4 on her chest contradicts with the

assertion in the complaint Ex.P.1. There is no explanation

offered.

17. PW2 is the pancha witness for the panchanama-

Ex.P2. In his examination-in-chief, he identified M.O.1,

which was recovered from the field of complainant in his

presence at the spot of the offence by drawing a

panchanama. He identified his signature on the

panchanama. In his cross-examination, suggestions are

made that due to some monitory dealings between the

witness and the accused, there was some

misunderstanding. It is elicited from the witness that

contents of Ex.P2 were written by police for which

information was given by police themselves. In view of

the said elicitation, evidence of P.W.2 does not support

prosecution.

18. PW3-Gururaj Desai cited as an eyewitness

stated that the land R.S.No.246/1 was obtained as per

sale agreement in the year 1984 and since then, they

were in actual possession of the land. And further that on

06.07.2008, when someone came to his house and

informed about accused assaulting his brother-PW1, he

immediately rushed to the spot along with PW4 and PW5.

At that time, he saw accused were assaulting P.W.1 with

hands. They tried to pacify the accused. But accused

Nos.2, 4 and 10 assaulted him with their hands. Accused

Nos.6, 7 and 11 assaulted P.W.4 and accused No.11 hit

PW4 with a stone, on her chest. PW5 was abused and

assaulted by accused Nos.5, 8 and 9. At that time,

listening to their cries, P.W.6 and P.W.7 came to the spot

and stopped the quarrel. While leaving, accused uttered

threat to life. In the cross-examination, P.W.3 states that

P.W.1 is his brother. That litigation was pending between

them and accused for two and half decades and they were

not on good terms with accused. P.W.3 admits that

accused No.11 has also filed a complaint in which himself,

his brothers and P.W.4 are accused. It is further elicited

that stones similar to M.O.1 are normally available by

road side.

19. PW4-Yogita Desai is the wife of complainant-

P.W.1. She is also one of injured eyewitnesses. In her

evidence, she has stated that upon receiving information

about accused quarreling with her husband, she along

with PW3 and PW5 went to the spot and found that

accused were beating her husband with their hands. When

they sought to intervene, even they were beaten up and

verbally abused. At that time, accused No.11 pulled her

hand and hit her with a stone on her chest. Accused Nos.6

and 7 dragged her around when PWs6 and 7 came to the

spot and stopped the quarrel. In her cross-examination, it

is elicited that after the incident, it was informed to

village elders and thereafter complaint was filed. In her

cross-examination, it is elicited that civil suit is pending

between them and accused and even accused had filed

complaint in which she was also one of the accused. She

further states that raised voices from the fields could be

heard inside her house. It is further admitted that near

the land, there is Haripur I.B. and infront of their land,

there is a girls' hostel and the quarrel went on for about

half an hour to one hour. She further admits that stones

similar to M.O.1 are easily available by the roadside.

20. P.W.5-Laxmi Channappa Desaipatti, she was

also examined as an injured eyewitness. In her

examination-in-chief, she testified that she accompanied

PW3 and PW4 to the spot after receiving information

about accused assaulting PW1, at 10.30 a.m. on

06.07.2008. She states that on reaching, she saw P.W.1

being beaten by all accused. When they sought to

intervene even they were abused and beaten. At that

time, P.W.6 and P.W.7 came and stopped the quarrel. She

states that PW4 was assaulted with M.O.1-stone. Though

she does not give the details of the assault, in her cross-

examination, she sought to improvise by stating that

P.W.4 was assaulted by P.W.5, P.W.8 and P.W.9. She

admits that she knows the names of some of the accused.

Except corroborating the date and time of receipt of

information about assault on P.W.1, evidence of P.W.5

does not improve prosecution case because of lack of

particulars and details.

21. PW6-Gangappa Ishwarappa Baligeri is also an

eyewitness. He stated that on date of incident when he

was going to his land, accused were quarreling with PW1.

Accused had come to till the land when PW1 told them

that they could do so only after obtaining decree from

court. At that point, accused assaulted PW1. Thereafter,

P.W.3, P.W.4 and P.W.5 came to the spot and he along

with PW7 stopped the quarrel. In the cross-examination

by the prosecution, on treating P.W.6 partially hostile, he

stated that when he went to stop the quarrel, accused

No.11 was beating PW1 with his hands and the accused

were abusing P.W.1 and his family members. He further

stated that accused No.11 assaulted PW4 with M.O.1.

When he along with PW7 stopped the quarrel,

accused threatened the P.W.1, P.W.3 to P.W.5 stating that

they were saved on that day, but would be done away

with their life the next time. The witness further states

that after the incident, PW1 consulted the elders and

thereafter filed complaint. The suggestions made to the

said witness that he had monitory dealings with PW1 is

denied. Likewise, the suggestion that ryots usually till the

lands during July and August months and there were other

people in the neighbouring lands on the date and time of

the incident is also denied. But as per the case of the

prosecution, P.W.6 while going to his land, heard the cries

of P.W.1, P.W.3 to P.W.5 during assault by accused and

he along with P.W.7 went and stopped the quarrel. But his

oral testimony is a marked improvement on this position.

His evidence is as if he was present near the spot all

along and witnessed how the quarrel started and ended.

The same is without any explanation and attracts doubt.

22. In his testimony, PW7-Siddappa Itagi states

that on the date and time of incident, he along with PW6

was going near the land of P.W.1, to go to his land. At

that time, there was a quarrel between accused and

P.W.1. The accused abused and assaulted P.W.1. At that

time, they went to enquire about the reason for quarrel.

P.W.3 to P.W.5 arrived at the spot. Accused No.11

assaulted PW4 with a stone on her chest. He along with

P.W.6 stopped the quarrel. In cross-examination he

admits that there was litigation between accused and

complainant's family. He further admits that when he went

to the field, along with accused, there were other people

present, who were tilling the land. At that time, PW1

alone was present and the accused were abusing him.

None of the neighbouring land owners came. PW7

specifically admits that apart from accused, there were

five other persons. The presence of persons other than

PWs1, 3 to 7 at the spot of the incident is not spoken to

by any other witness though PW1, PWs3 to 5 and 6 are all

eyewitnesses. PW7 further admits that the quarrel lasted

for about half an hour, which contradicts with the duration

mentioned by other witnesses. And like P.W.6,

P.W.7 also testified as if he was a witness to the incident

from the beginning till the end which is in total

contradiction with the case of the injured eyewitnesses

and therefore doubtful.

23. PW8 is the doctor who examined PWs1, 3 to 5.

He stated that the injured to his hospital at 4.00 p.m. on

06.07.2008 for treatment with history of assault which

occurred the same day at 10.30 a.m. On examination, he

noticed injuries to be simple in nature and issued wound

certificates - Exs.P5 to P8 in that regard. PW8 admits that

an MLC intimation was sent to police. It is elicited that

age of injuries is not mentioned in Exs.P5 to P8 and no

external injuries were noticed and admits that injuries

mentioned in Exs.P5 to P8 can also occur due to fall from

bullock-cart. The testimony of P.W.8 does not establish

that injuries mentioned in Ex.P.5 to Ex.P.8 were caused or

could be caused due to assault by accused. Failure to

describe the injuries, age and manner of their cause casts

serious doubt.

24. PW9 is the I.O. who registered FIR and

forwarded it to the court. He states that for investigation,

he visited the spot the next day. The spot was identified

by PW6 in the presence of PW2 and seized M.O.1. He

states that he recorded statements of PWs3 to 8 on

07.07.2008; received wound certificates on 24.10.2008

and filed charge sheet on 30.12.2008. In his cross-

examination, P.W.9 admits that accused had filed

complaint registered as Crime No.102/2008 against PW1,

prior to registration of complaint by PW1. But he does not

clarify about MLC intimation said to have been sent by

PW8. He also does not clarify about status of complaint

given by accused. PW9 admits that there was no

investigation conducted with regard to dispute regarding

land between complainant and accused. P.W.9 is the I.O.

He fails to explain delay in registering complaint. He fails

to explain contradictions in testimonies of other witnesses

and prosecution case. He admits the complaint Ex.P.1.

Ex.P.1 is a counter-complaint given after accused had

filed complaint against P.W.1, P.W.3 to P.W.5. There

is no explanation why the complaint and counter-

complaints were not investigated together. The appellate

Court has recorded finding that P.W.1, P.W.3 to P.W.5

were acquitted in case filed by accused. There is no

challenge to the said finding in this appeal.

25. On consideration of above evidence, trial court

held that prosecution established that the accused were

present at the spot of incident, formed an unlawful

assembly with common object, assaulted PWs1, 3 to 5 and

also abused them using filthy language. Based on

consistent evidence of PWs1, 3 to 5 and PWs6, the trial

court however held that evidence was in-sufficient to

establish charges against accused Nos.1, 3, 5, 8 and 9.

Therefore, it acquitted accused Nos.1, 3, 5, 8 and 9 while

convicting accused Nos.2, 4, 6, 7, 10 and 11. The

trial Court observed that minor discrepancies existing

in prosecution evidence could be discarded after

sifting evidence to separate truth from untruth,

exaggeration, embellishments and improvements. And if

court can come to a conclusion that residual evidence is

sufficient for conviction, accused cannot escape, as in

present case. The appellate court on the other hand,

examined various omissions and contradictions and came

to conclusion that they were material omissions and

contradictions and therefore it could not be held that the

prosecution had established its case beyond reasonable

doubt and that accused were entitled for acquittal on the

basis of benefit of doubt. One of the main reasons

assigned by appellate court for acquittal is the principle

enunciated by this court in Criminal Appeal

No.569/2003 disposed of on 17.07.2003 in the case of

Kundgol Police Station V/s Channappa Uluvappa

Bijapur and others in which it was held that in an

incident where there is a clash between two groups

involving case and counter case, in absence of valid

defence, the inevitable conclusion would be that both

parties would have to be convicted and punished

and there cannot be acquittal of one side and conviction

of other. In the instant case as P.W.1 and PWs3

to 5 were acquitted on the complaint given by accused

prior to complaint given in this case, the prosecution case

cannot be said to be free from doubt. The appellate court

has also held that delay of eight hours in lodging the

complaint was fatal, in the light of existence of prior civil

dispute and grudge between parties.

26. Though learned ASPP has valiantly sought to

argue for reversal of acquittal by the appellate court,

existence of prior civil litigation between parties admitted

by PW1, PWs3 to 7 is an important factor to be mind while

examining the evidence. Any discrepancy or omission

would lend support to benefit of doubt to a greater degree

in the light of prior dispute and existence of grudge

between complainant and accused. On a perusal of wound

certificates, which are material documents in support of

prosecution case, it is seen that the injured went to

hospital voluntarily. The history of injury was stated as

assault at 10.30 a.m. They were examined at 4.00 p.m.

There is no explanation for delay. There is also no

acceptable explanation why complaint was not given

immediately after incident as injuries were all simple in

nature. There is no mention about age of injuries nor

particulars about which of the accused caused the injuries

mentioned. There is no opinion about their cause. These

are material omissions.

27. There are inconsistencies/contradictions with

regard to the specific overt acts of the accused. P.W.1

stated that he saw Accused Nos.6, 7 & 11 bearing P.W.4.

P.W.3 stated that she saw Accused Nos.2, 4 and 10

bearing P.W.3 while Accused Nos.6, 7 and 11 were beating

P.W.4. P.W.4 stated that Accused No.11 pulled her hand

and hit her on her chest with stone while Accused Nos.6 &

7 were beating her with their hands. She stated that

P.W.3 was beaten by Accused Nos.4 & 10. But P.W.5

stated that three accused each assaulted her, P.W.3 and

P.W.4 without mentioning details but in cross-examination

she improvises saying it was Accused Nos.5, 8 & 9 who

had beaten her. During cross-examination of ADP, P.W.6

admits suggestion that Accused No.3 & Accused No.6 were

beating P.W.4, Accused Nos.5, 8 & 9 beating P.W.5 and

Accused Nos.4 and 10 were beating P.W.3. Firstly in

complaint Ex.P.1 it is stated that Accused No.11 hit P.W.4

with stone on her hand. Secondly no injuries are noted on

her hand in Ex.P.6, while P.W.1, P.W.3, P.W.4, P.W.5 and

P.W.6 all testify that Accused No.11 hit her on her chest

with stone. Thirdly, P.W.5 stated that P.W.3, P.W.4 and

herself (P.W.5) were beaten by three each of the accused.

But the suggestion by the prosecution in cross-

examination of P.W.6 implicates only two of the accused

in respect of P.W.3 and P.W.4. These contradictions are

totally unexplained.

28. Further admitted by PW1, PW4 and PW6, the

injured thought about the incident, consulted with elders

and thereafter filed complaint Ex.P.1. The incident

occurred at 10.30 a.m. The complaint is given at 8.20

p.m. on the same day. In the evidence of PW9, it has

been elicited that Crime No.102/2008 was registered

based on a complaint by accused against PW1, PW3 and 4.

The complaint Ex.P.1 given by PW1 is subsequent to said

complaint and is registered as Crime No.103/2008.

Therefore, the delay in registering complaint and

admission of consultation with elders casts reasonable

doubt about veracity of its contents. The probability of the

same being an afterthought cannot be ruled out. In the

light of said facts, acquittal of accused by appellate court

is fully justified. The conclusions drawn by appellate court

are with due reference to evidence on record and are not

either perverse or suffer from any material irregularity.

29. In the circumstances, I do not find any merit in

the appeal. It is accordingly dismissed.

Sd/-

JUDGE

CLK