State Of Karnataka vs Sri Cherumandanda Ajith
2022 Latest Caselaw 1913 Kant

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        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 08TH DAY OF FEBRUARY, 2022

                              PRESENT

            THE HON'BLE MR. JUSTICE K. SOMASHEKAR

                                 AND

               THE HON'BLE MR. JUSTICE P.N.DESAI

               CRIMINAL APPEAL NO.1518/2016

BETWEEN:

STATE OF KARNATAKA
BY NAPOKLU P.S.
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU- 571 201.                                ... APPELLANT
(BY SRI. RAHUL RAI.K, HCGP)

AND:

SRI. CHERUMANDANDA AJITH,
POONACHA @ AJITH,
S/O C. N. SHIVANNA,
AGED ABOUT 39 YEARS,
AGRICULTURIST,
R/O KIRUNDADU VILLAGE,
PARANE POST,
MADIKERI TALUK,
KODUGU DIST-571 201.                         ... RESPONDENT

(BY SRI. TRIVIKRAM. S, ADV.,)
                                -------

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) & (3)
CR.P.C BY THE SPP FOR THE STATE PRAYING TO GRANT LEAVE TO
APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED
13.04.2016 PASSED BY THE PRL. S.J., KODAGU-MADIKERI IN
S.C.NO.67/2010 FOR THE OFFENCE PUNISHABLE UNDER SECTIONS
307, 427, 324 OF IPC AND SECTIONS 3 AND 25 OF INDIAN ARMS ACT.
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     THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY,
P.N.DESAI J., DELIVERED THE FOLLOWING:

                           JUDGMENT

This appeal arises out of the judgment of acquittal dated

13.04.2016 passed by learned Prl. Sessions Judge, Kodagu-

Madikeri in S.C.No.67/2010, whereunder the respondent/accused

is acquitted for the offences punishable under sections 307, 506

of Indian Penal Code, 1860 (hereinafter referred as 'IPC' for

short) and section 25 of the Indian Arms Act,1959.

2. Factual matrix of the case:

On 30.05.2009 at about 7.45 a.m., the complainant PW-1

received a telephone call to his landline telephone bearing

No.268361 stating that he is one 'Muchchanda Ranju' and as his

motor cycle is under repair, he requested PW-1 to give drop on

his motorcycle. Believing the phone call, PW-1 C.A. Gandhi, took

his uncle Bhimappa alongwith him and on his motorcycle. When

they came near the coffee estate of CW-1-Kuppada, at that time,

accused fired gun shot at PW-1, but it hit to the front side tyre of

his motorcycle. PW-1 stopped the motorcycle. At that time, the

respondent/accused abused PW-1 stating that PW-1 cheated him

in respect of the property and has deprived them of their

legitimate share, saying so, he took out the gun and with the

butt end of the gun, hit PW-1 on his head, his right cheek and

caused injuries. So PW-1 sustained injuries. When he fell down,

his uncle Bhimappa called for help. One Devaiah who was a

neighbouring planter came there and tried to pacify the quarrel.

He stopped accused from assaulting PW-1. Then accused

alongwith his gun went away on his motorcycle. It is further case

of the prosecution that PW-1 informed his wife over phone that

accused has fired gun shot and assaulted him and asked her to

get the jeep. Accordingly, his wife, and one Devaiah went in a

jeep and took the injured to Napoklu Government Hospital for

treatment. In this regard, PW-1 lodged the complaint with

Napoklu police station as per Ex-P1. Said complaint was received

at the police station as per Ex-P1. On the basis of the same, a

case in Cr.No.90/2009 was registered for the offences punishable

under sections 307 IPC and sections 3 and 25 of Indian Arms

Act, 1959. The Station House Officer forwarded the FIR-Ex-P14

to his higher officers. Thereafterwards, Investigating Officer PW-

13 took up further investigation, he visited the place of offence

and conducted the spot panchanama as per Ex-P4. He also

seized sample mud, one paper wad, one plastic wad, one live

cartridge and one bike bearing registration No.KA-12-H-5169.

PW13 also recorded the statement of witnesses. Thereafter,

accused was produced before him at 4.30 p.m., he arrested the

accused. Accused voluntarily gave statement that he has kept

the said gun in his house. Accordingly, he took the panchas to

his house and produced one kathi and one bike. Same was

seized under mahazar Ex-P6. Thereafter, he also collected hand

swab of accused under Ex-P7 mahazar and then recorded the

statement of witnesses, received wound certificate from the

Hospital, received document regarding gun M.O.1 from the father

of accused CW-11 -Shivanna. He seized the gun and he sent all

sealed articles to FSL, Bengaluru for scientific examination and

he received FSL report as per Ex-P5 and also ballistic report as

per Ex-P16. Then after completion of the investigation, he filed

the charge sheet. Thereafterwards, PW-16 PSI received RFSL

reports as per Ex-P20 to Ex-P22 and then filed additional charge

sheet.

3. Thereafterwards, said case was committed by the

learned magistrate after complying the provisions of sections

207, 208 and 209 of the Code of Criminal Procedure, (for short

hereinafter referred to as 'Cr.P.C.') to the court of sessions for

trial. Learned Sessions Judge after hearing both sides framed

charges against the accused for the offences punishable under

sections 307, 427, 324 of IPC and sections 3 and 25 of Indian

Arms Act.

4. Thereafterwards, the prosecution in all examined 16

witnesses as PWs-1 to 16 and got marked 22 documents as per

Ex-P1 to P22 and also got identified 12 material objects as per

M.O.1 to 12. Therefterwards, the statement of the accused as

required under section 313(1)(b) Cr.P.C. was recorded. The

accused denied the circumstances appearing against him in the

evidence of the prosecution witnesses. After hearing the

arguments, the learned sessions judge acquitted the accused

which is under challenge in this appeal by the State.

5. We have heard Sri. Rahul Rai, learned HCGP for

appellant-State and Sri. Trivikram. S, learned counsel for the

respondent/accused.

6. It is argued by learned HCGP that the impugned

judgment and order of acquittal passed by the trial court is

contrary to law and facts of the case and evidence on record.

Learned HCGP further argued that the reasons assigned by the

learned sessions judge while passing the impugned judgment

and order of acquittal are erroneous and this has resulted in

substantial miscarriage of justice. Learned HCGP submitted that

the prosecution has produced the evidence of PW-1, PW-2, PW-5

and PW-10. But all these witnesses have partially supported the

prosecution evidence about the assault and also about the injury

caused to PW-1. Learned HCGP argued that the medical evidence

also supports the theory of assault and that there are minor

contradictions and inconsistencies. Learned sessions judge has

not appreciated the evidence in proper perspective and has

wrongly acquitted the accused. Therefore, learned HCGP argued

that the said judgment of acquittal needs to be set-aside and

convict the accused and punish him as per law.

7. Against this, learned counsel Sri. Trivikram. S,

appearing for the respondent/accused argued that there is

dispute and enmity between PW-1 and the family of the accused.

Admittedly, the only eyewitness in this case who is stated to be

PW-7 N. Devaiah who is an independent eyewitness has not

supported the prosecution case. Further, even the nature of

injury sustained by PW-1 as per the medical evidence clearly

indicates that it is not an injury caused with any gun and Doctor

has also admitted that such injury could be caused if any person

falls from the motorcycle. In this case, admittedly, the evidence

of PW-1 is not corroborated by the evidence of his uncle PW-2-

Bhimaiah. There are material contradictions and inconsistencies

in their evidence which goes to the root of the case. The wife of

PW-1 is only an hearsay witness and she being an advocate has

tried to falsely implicate the accused. Absolutely there are no

materials to believe that the accused either tried to assault PW-1

or tried to fire gunshot towards PW-1. Further, the ballistic

report-Ex-P16 also does not support the case of the prosecution.

Therefore, the learned counsel argued that the learned sessions

judge after considering the material on record has rightly come

to the conclusion that the trial court has failed to prove the guilt

of the accused beyond all reasonable doubt and has given benefit

of doubt to the accused. Learned counsel further argued that this

Court being an appellate court should be slow in interfering with

the judgment of acquittal, unless the judgment of the trial court

is perverse, capricious or illegal and not based on sound

principles relating to appreciation of evidence. With these main

arguments the learned counsel argued that the appeal deserves

to be dismissed.

8. We have perused the appeal memo, judgment of the

trial court and also evidence on record. We have re-appreciated

the evidence.

9. We have perused the judgment of the learned

sessions judge. The learned sessions judge has relied upon the

principles stated by the Hon'ble Supreme Court and various

decisions and has come to the conclusion that the prosecution

has failed to prove the charges leveled against the accused

beyond all reasonable doubt. The learned sessions judge has

given benefit of doubt to the accused.

10. PW-1-C.A. Gandhi is the complainant who set the

criminal law in motion and lodged the complaint as per Ex-P1. It

is deposed in his evidence that on 30.05.2009, when he was in

his house at about 7.30 a.m., the accused called him over

landline telephone by stating name of other person and told

PW-1 that as his bike was under repair near coffee estate of

PW-1 asked PW-1 to give a drop to him. The accused told that

his name is one Ranju. Accordingly, PW-1 went to the place

stated by the caller of the phone alongwith his uncle Bhimaiah.

PW-1 further stated while riding the bike on his way, towards his

right side, he heard the sound of gun shot. When he turned to

that side, he found that accused was standing near the fence of a

coffee plantation estate. A bullet hit the cable of his bike which

resulted in cutting of cable of the bike. Thereafterwards, PW1

and his uncle got down from the motor bike. At that time, the

accused came running stating that he would kill PW-1. Accused

took the gun and with the hind portion of the gun i.e., butt end

of the gun, he assaulted PW-1 on his head, cheeks and hands,

consequent upon which, PW-1 fell down. When Bheemaiah, uncle

of PW-1 called for help, one Devaiah, a neighbouring coffee

planter came there and accused fled from the place. PW-1 has

further stated that, he informed the incident to his wife through

his mobile phone. Wife of PW-1 came alongwith one Pemmaiah

in a jeep, she took PW-1 and got admitted PW-1 in Napoklu

Government Hospital. Then for further treatment, PW-1 was

taken to Mysore Hospital. The police recorded statement of PW-1

in the hospital as per Ex-P1. In his examination-in-chief itself,

PW-1 has stated that there is enmity between himself and the

accused in respect of property and in this connection, accused

tried to take away his life. He has identified M.O.1 as the gun

which was used by accused to assault him. In the cross-

examination, he has admitted that accused and himself belong to

the same family and there is enmity and ill-will between them

since 10-15 years. It is also admitted by him that there is

property dispute between them. He has stated that he cannot

say the contents of the complaint correctly. PW1 has admitted

that he knew one person by name Machchanda Ranju and both

used to talk with each other over phone and he can identify and

recognise the voice of the said person. PW-1 has stated that

said Machchanda Ranju telephoned him, then he went to the

place of offence.

11. This evidence of PW-1 in the cross-examination

clearly indicates that there is no basis for the allegation that it is

the accused who called him by imitating in the voice of one

Machchanda Ranju. On the other hand, PW-1 has clearly stated

that he is very much acquainted with the voice of Machchanda

Ranju. Only after he received call from the said person, he went

to the spot. Therefore, the basis of allegation that he went to the

spot at the instance of call made by the accused falls flat. PW1

has stated that he has no caller I.D. to the landline telephone.

Of-course, no material is produced to show as to whether any

call was received to the landline of PW-1. PW1 has further stated

that when he received the phone call, his wife, son and his

mother were also in the house and he did not disclose to any of

his family members about the call received from M. Ranju.

Infact, said Machchanda Ranju was not cited as witness by the

prosecution. So at the initial stage itself, the place of offence

itself becomes doubtful. PW-1 has further stated that when he

went to the spot alongwith Bheemaiah, he did not disclose his

uncle about the call made by Ranju. He has further stated that

on both sides of the road, there are robusta coffee estates,

drainage and cut fences are situated. Those robusta coffee plants

are about 15 years old and the place was surrounded by bushes.

He also admitted that if a person is hiding in that bush of coffee

plants, nobody can identify that person. Further he has stated

that he heard the sound of gunfire from a distance of four mtrs.

Further, he has admitted that fence was upto the height of 3 ft.

Therefore, it is not known, as to how PW-1 could say it is the

accused who came in motor bike and fired gunshot on him. He

has further stated that the bullet hit on the right side cable of his

motor cycle and motor bike was stopped. But the other evidence

placed before the prosecution does not show any damage to the

cable of the bike. This evidence is contrary to the evidence of

other witnesses. PW-1 has stated that he fell down from the

bike, then the motor bike must have got damaged. There is

again inconsistency in examination-in-chief of PW-1, wherein he

has stated that after hearing the bullet sound, he got down from

the motor cycle. He has also admitted that there will be 40-50

pellets in one cartridge and he is also having khovi (gun) in his

house and he cannot say after the bullet is fired from the gun,

the pellets would spread if it goes to a long range. His evidence

indicates that he does not know anything about firing of gun. He

has further stated that there are different types of guns such as

single barrel gun, double and short barrel gun and he has not

stated with which gun, the accused had fired at him. He has

clearly admitted that there are no identification marks to show

that the gun before the court was the same gun which was used

by the accused. So this evidence again creates doubt about the

seizure of M.O.1-gun. He has further stated that he was not

referred by the Napoklu Government Hospital to any other

hospital for higher treatment. Further he states that he does not

know who lodged the complaint to the police about the incident.

This creates doubt about the veracity of Ex-P1. He has deposed

that he went to Mysore B.M. Hospital alongwith his sister Dharani

and her husband Poonacha. He has admitted in his evidence

that no documents were produced to show that the injured/PW-1

has taken any treatment at Mysore hospital. He has denied the

suggestion that just to harass the accused in respect of the

property dispute, he has filed false complaint against the

accused.

12. On perusal of the oral evidence and comparing with

the medical evidence which is at Ex-P12 and evidence of

Dr. Vishma PW-10, it is evident that the injured PW1 came at

about 9.30 a.m. alongwith his wife to Napoklu Government

Hospital. It is mentioned in Ex.P13 that PW-1 has sustained

three injuries i.e., 1. Laceration over right temporal region

measuring 6cm x 0.5cm and 0.5cm fresh and bleeding present,

2. Contusion over left cheek measuring 4cm x 5cm and 3.

Abrasion over right dorsum of right fore arm measuring 1/3rd,

5cm x 2 cm in length and the said injuries are simple in nature

and he referred patient to CT scan. She has issued wound

certificate as per Ex-P12. The Doctor PW10 has admitted in her

cross-examination that if a person while riding the motor bike on

a rough road falls down, injuries mentioned in the wound

certificate at Ex P12 would be caused. This supports the defence

of the accused that PW-1 might have sustained injuries while

falling from a motor bike on a road or gutter(drainage). It has

also come in the prosecution case that infact PW-1 had fell down

from the motor bike and sustained injuries. Therefore, the

evidence of Doctor-PW-10 will not help the prosecution to show

the theory of assault. Further, the Doctor has admitted that she

has made insertions of words 'attempt to murder' in Ex-P13- MLC

register.

13. Contrary to evidence of PW1/complainant, PW-2

Bheemaiah who is the uncle and close relative of PW-1 has given

evidence stating that he went alongwith PW-1 on bike and when

they reached the coffee estate of Kuppada, accused Ajith fired

the gun shot at C.A.Gandhi, but this is not stated by PW-1. He

has further stated that gun shot hit to the front side tyre of the

bike and bike was stopped. This evidence is again contrary to the

other evidence and also evidence of PW-1 who never stated

about any damage to the tyre of the motor bike. It is stated by

PW-2 that accused came running and assaulted on the head and

legs of PW-1, but there is no injury to any of the legs of PW-1

and he has stated that when he tried to pacify the quarrel,

accused tried to assault him and one Devaiah came there so

accused left the spot. This again is not stated by PW-1. The said

witness PW7 Devaiah has not supported the evidence of PW-1

and PW-2. Infact, PW-2 has not supported the prosecution case

fully and prosecution treated him as partially hostile. He has

denied the suggestion that PW-1 told him that one M. Ranju had

called him and requested him to give a drop. This type of

evidence creates doubt about the presence of this witness at the

time of incident. Infact, if at all they had fallen from the motor

cycle, this witness PW2 also should have sustained injury and as

to why PW-2 was picked up by PW-1 is not known. It is evident

that PW-2 is aged about 74 years and why such old man was

taken by PW-1 in his bike is not known. When PW-1 was going to

drop another person, why he insisted Bheemaiah to come

alongwith him in the motor bike which could accommodate only

two persons, is not known. So this shows that PW-2 is a planted

witness just to support the case of the prosecution. In further

cross-examination by the accused, PW-2 has clearly stated that

himself and C.A.Gandhi both fell down from the bike but he did

not sustain injury. According to PW1, he fell down from the

motor bike, then accused came and assaulted him and this

admission of PW-1 coupled with the evidence of the Doctor that

the injury at ExP12 could be caused if a person falls from the

bike cannot be ruled out. Therefore, PW2 being close relative and

uncle of PW-1, it is not safe to believe the uncorroborated and

inconsistent evidence of this witness.

14. PW-3 Somanna is an witness to the spot mahazar. He

has not supported the case of the prosecution. Ofcourse, in the

cross-examination by the accused, he has admitted that himself

and the complainant belong to the same family, but he has

stated he does not know the contents of mahazar-Ex-P4.

15. PW-4 Kushalappa has not seen the incident and he is

an witness in respect of mahazar Ex-P5. In the cross-

examination by the accused, he has admitted that police has not

given any notice to him and he has not produced the contents of

the said mahazar-Ex-P5. So his evidence will not help the

prosecution about the seizure mahazar.

16. PW-5 Ghanavathi is the wife of PW-1. She is not the

eyewitness. Admittedly, her profession is shown as an Advocate.

PW5 went to the spot only after she received phone call from her

husband- PW-1. But very strangely, in the cross-examination,

she has stated that she is practicing as an Advocate for last 20

years and she do not remember the landline number of her

house. So this creates doubt as to whether there was any phone

call to PW-1 and whether there was any landline in their house.

PW5 further states, since four years, the landline is

disconnected. Further, she has stated that for further treatment,

her husband/PW.1 was admitted to private hospital i.e., Basappa

Memorial Hospital at Mysore as inpatient for a period of 15 days.

This itself shows that somehow prosecution intends to

exaggerate things. Because looking to the nature of the injuries

at ExP12 it is clear that a person need not get himself admitted

as an inpatient for a period of 15 days for such simple injuries.

Why PW1 was inpatient is not forthcoming. No, medical records

were produced in this regard. Therefore, just to make out some

case against the respondent/accused, this evidence is

forthcoming and it has no legal basis. Therefore, evidence of

PW5 will not help in any way. Even she has admitted that there

was no damage to the bike except to the cable of the bike.

Therefore, hitting of bike or its tyre with bullet itself is doubtful.

17. PW-6 C.P. Eshwar is an witness for seizure of one Kovi

and a bike. He has stated that police called him to the house of

the accused and accused produced one Kovi and one bike. Of-

course, his evidence will not help the prosecution to prove the

seizure at the instance of the accused. The prosecution has

treated him as partially hostile and cross-examined him. But he

has stated, he cannot identify the jerkin M.O.4. In the cross-

examination by the accused, PW-6 has also admitted that

himself, accused and complainant belong to one family and he

has also stated since two to three years, he is not in talking

terms with accused. It appears, persons who are relatives of

PW-1 are interested witnesses and who are inimical to the

respondent/accused are made as witnesses in this case by

Investigating Officer for the reasons best known to him. He has

given new version stating that he went alongwith the police in a

jeep to Bethri and went to the hospital to admit PW1 C.A.Gandhi

at about 8.30 or 9.00 a.m.. His evidence indicates that this

witness went to the spot, but his presence at place of offence

and taking PW1 to hospital is not deposed either by PW-1 or by

his wife PW5. Further, he has deposed that he cannot remember

the time when the Kovi was seized from the house of the

accused. This creates doubt as to whether seizure of gun was

made actually at the instance of the accused. This witness has

given new version stating that the Kovi was broken into two

pieces and it was in the hockey stick cover. So his evidence will

not help much to the prosecution.

18. PW-7 N. Devaiah alias Sabu is the independent

eyewitness. He has not supported the case. The prosecution

treated him as hostile witness and cross-examined him at length.

But he has stated that he has not given any statement before

the police as per Ex-P8. Therefore, evidence by this witness

further creates about the prosecution done.

19. PW-8 Pemmaiah is the person who went alongwith the

wife of PW-1 to bring PW-1 who had sustained gun shot injury.

He gives new version stating that PW-1 had sustained injury on

his face and hands, but he did not enquire him as to how PW-1

sustained injuries. This is most unnatural evidence. He has

deposed that PW-1 sustained injury as accused fired gun shot at

PW-1. But there was no gun shot injury on any parts of the body

of PW-1. In the cross-examination, he has admitted that the

complainant PW1 himself told that he sustained injury from the

gun of the accused. But he has clearly stated he do not know

whether the complainant Gandhi-PW-1 sustained injury due to

fall from the bike on the road. This evidence will not help the

prosecution.

20. PW-9 Shivanna is the father of the respondent/accused

who has produced the documents such as gun declaration form

and Jamma exemption certificate. Evidence of PW9 shows that

he has got licence and police took said Kovi stating that they

require it for renewal of licence and the Kovi was created only for

the sake of some evidence against the accused.

21. PW-11 Manjunatha is the police constable working at

Napoklu police station who has taken sealed articles to RFSL,

Mysuru for chemical examination.

22. PW-12 Naveen Kumar is the police constable who also

received sealed articles from FSL, Bengaluru and reported the

same to the police station.

23. PW-13 M. Mahadev Swami-PSI who conducted the

investigation. In his cross-examination, he has admitted that he

has not received the permission letter from Deputy

Commissioner to prosecute the accused under the provisions of

Arms Act. This creates doubt about the investigation done by

him. He has further stated that he cannot say whether the road

in the place of offence is mud road or tar road. He cannot say

whether there was any identification marks in the spot regarding

skidding or falling of bike. This shows that this witness neither

visited the spot nor made any investigation nor drawn any

panchanama. He has also given evidence stating that he cannot

remember whether there was any pellet hit marks on the

headlight and cable portion of the motorbike of PW1. His cross-

examination reveals that he went on stating that he cannot

remember for whatever questions asked to him which is nothing

but lapse on the part of the investigating officer, which creates

doubt about the investigation done by him and thereby

prosecution case becomes further doubtful.

24. PW-14 N.G. Prabhakar is the Assistant Director working

in Ballistic Department, FSKL, Bengaluru. In his examination-in-

chief, he has stated about the examination of gun and pellets.

But in his cross-examination, he has stated at para 19 of his

deposition that M.O.1 gun, the main bolt connecting the butt

portion and muzzle and action portion is cut. He has stated that

single barrel and double barrel guns will have heavy action and

he has stated at para 21 of his deposition that it is not possible

to give opinion as to the date and time of action discharge of

M.O.1 gun. He has stated that he cannot say whether the plastic

wad M.O.7 and paper wad M.O.8 are fired only through M.O.1

gun. He has stated that it is not possible to opine as to whether

the cartridge case in Article No.5(empty cartridge) has been fired

through SBBL Gun in Art.No.8(M.O.1) or not since the percussion

cap on it is perforated. His evidence will not help to prove that

there was gun shot fire from M.O.1 on the date of the incident.

25. PW-15 S.N. Gaonkar, Assistant Director, RFSL, Mysuru

has only stated about the chemical examination and giving

report of six seized articles as per Ex-P20- RFSL report.

He has stated about serology report as per Ex-P22 and stated

that item Nos.1, 6, 7, 9 and 10 are stained with human 'O' blood

group. But there is no evidence as to what was the blood group

of the respondent/accused or the complainant. Therefore, in the

absence of any such records, his evidence will not help the

prosecution.

26. PW-16 T.M. Punitha is the PSI, Napoklu police station

who has submitted the additional charge sheet.

27. Therefore, on entire re-appreciation of evidence on

record, it is evident that there was enmity and ill-will between

PW-1 and the respondent/accused family in respect of land

dispute. It is also evident that PW-1 is having coffee plantation

and accused is also having coffee plantation. In the area of

Kodagu, Madikeri District almost all families will be having guns

and Kovi just to protect themselves from wild animals.

Admittedly, PW-1 has not seen the accused firing gun shot at

him. PW-1 stated he heard some sound and suddenly some

pellet hit the cable of his bike. PW-2 who has admittedly

accompanied him stated that pellet hit the tyre. PW-2 states that

they fell down from the bike. Even PW-2 never stated that PW-1

informed him while accompanying in his bike that accused had

called him over phone to pick him up near estate of PW1. Usually

coffee planters will have Kovi. But here the theory stated by the

prosecution that because of some phone call received, PW-1

went to pick up some person, itself is doubtful. Because, if a

person asks for a drop, no person will take another person on his

bike alongwith him to give a drop. Added to that, the very theory

of assault stated by PW-1 becomes doubtful in view of the

medical evidence which is inconsistent. Further, wife of PW-1

stated that PW-1 was admitted in Basappa Memorial Hospital,

Mysuru and was inpatient for 15 days. But for what reason,

PW-1 was admitted for fifteen days in the hospital is not

forthcoming. So this evidence shows that medical evidence is

inconsistent and contradictory with the oral evidence and theory

of assault. There is no corroboration with the evidence of the

prosecution to the charge levelled against the accused. On the

other hand, there are material inconsistencies and contradictions

about the material particulars.

28. It is settled principles of law that 'ill-will' or 'enmity' is

like a double edged weapon which cuts either way. Possibility of

falsely implicating the accused out of ill-will or enmity also

cannot be ruled out in view of the evidence placed before the

court. It is settled principles of law that the prosecution has to

prove its case beyond all reasonable doubt as alleged.

29. There is a lot of difference between 'may be true' and

'must be true'. From the evidence of the prosecution, if two

views are possible, then the view favorable to the accused will

have to be accepted. If the evidence of the prosecution witnesses

creates a doubt in the mind of court, the benefit of doubt should

be given to the accused.

30. In this regard Hon'ble Supreme court in a decision

SHARAD BIRDHI CHAND SARDA v. STATE OF

MAHARASHTRA1, wherein at paragraphs 162 and 163, it is held

as follows:

162. Moreover, in M.G. Agarwal's2 case, this Court while reiterating the principles enunciated in Hanumant's case3 observed thus:

"If the circumstances proved in the case are consistent either with the innocence of the accused or with his guilt, then the accused is entitled to the benefit of doubt."

In Shankarlal's4 case, this Court reiterated the same view thus: (SCC para 31, p.44: SCC (Cri) p.322)

"Legal principles are not magic incantations and their importance lies more in their application to a given set of facts than in their recital in the judgment".

"163. We then pass on to another important point which seems to have been completely missed by the High Court. It is well settled that where on the

(1984) 4 SCC 116

AIR 1963 SC 200

AIR 1952 SC 343

(1981) 2 SCC 35

evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. In Kali Ram v. State of Himachal Pradesh, [(1973) 2 SCC 808] this Court made the following observations (para 25 p.820):

"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence."

31. The Hon'ble Supreme Court while elaborating with

the power of the appellate court in interfering with the judgment

of acquittal held that unless the judgment of trial court is

perverse, illegal and not based on sound principles regarding

appreciation of evidence, the appellate court shall not interfere in

the judgment of acquittal. It is further stated that the judgment

of acquittal gives double presumption of innocence to the

accused. The Hon'ble Supreme Court in the case of Sampat

Babso Kale and Another v. State of Maharashtra

[(2019) 4 SCC 739], has held at para-8 as follows:

"8. With regard to the powers of an appellate court in an appeal against acquittal, the law is well established that the presumption of innocence which is attached to every accused person gets strengthened when such an accused is acquitted by the trial court and the High Court should not lightly interfere with the decision of the trial court which has recorded the evidence and observed the demeanour of witnesses. This Court in the case of Chandrappa & Ors. v. State of Karnataka [(2007) 4 SCC 415], laid down the following principles:-

"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

        (3)    Various    expressions,    such     as,
        "substantial    and   compelling     reasons",
        "good and sufficient       grounds",     "very
        strong     circumstances",          "distorted

conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against

acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

32. Therefore in view of the principles stated by Hon'ble

Supreme Court of India in the decisions referred Supra and the

discussions made above, we find no illegality or perversity in the

findings of the learned sessions judge. There are no grounds to

interfere with the Judgment of acquittal rendered against the

accused by the trial court. Therefore, as the appeal being devoid

of merit is liable to be dismissed.

Accordingly, we pass the following:

ORDER

1. The appeal filed by the State-appellant under section 378(1) and (3) Cr.P.C. stands dismissed.

2. Consequently, the judgment and order of acquittal dated 13.04.2016 passed by learned Prl. Sessions Juge, Kodagu-Madikeri in S.C.No.67/2010 against the respondent/accused is hereby confirmed.

3. Bail bond, if any, executed by the accused, the same shall stand cancelled.

4. Office is directed to send back the records to the trial court.

Sd/-

JUDGE

Sd/-

JUDGE

*mn/-