The State By Arakere Police vs Sri. Kempegowda @ Kullegowda
2022 Latest Caselaw 2020 Kant

                           1
                                             R

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 9TH DAY OF FEBRUARY, 2022

                       PRESENT

       THE HON'BLE MR.JUSTICE K.SOMASHEKAR
                         AND
         THE HON'BLE MR. JUSTICE P.N.DESAI

          CRIMINAL APPEAL NO.486 OF 2016


BETWEEN:
The State by Arakere Police
Mandya (District)
Rep. by State Public Prosecutor
High Court Building
Bangalore - 571415.
                                        ...Appellant

(By Sri. Rahul Rai K - HCGP)

AND:
1.     Sri. Kempegowda @ Kullegowda
       S/o. Dyavegowda @ Ballerigowda
       Aged about 45 years

2.     Sri. Jayaramu @ Birush
       S/o. Dyavegowda @ Ballerigowda
       Aged about 41 years

3.     Smt. Devamma
       W/o. Dyavegowda @ Ballerigowda
       Aged about 63 years
                             2


4.   Lakshmamma @ Jayalakshmi
     W/o. Ningegowda
     Aged about 47 years

5.   Asha
     W/o. Kempegowda @ Kullegowda
     Aged about 27 years

6.   Usha
     W/o. Jayaramu @ Birusu
     Aged about 26 years

7.   Sri. Ningegowda
     S/o. Late Sannegowda
     Aged about 58 years
All are residing at
Chikkaharohally Village
Arakere Hobli
Drirangapattana Taluk
Mandya District - 571415.
                                         ...Respondents

(By Sri. M. Sharass Chandra - Advocate for R-1 to R-7)

       This Criminal Appeal filed under Sec.378(1) and
(3) of Criminal Procedure Code, by the Advocate for the
appellant praying to i) grant leave to appeal against
the     judgment   and    order   of   acquittal   dated
25.11.2015 passed by the III-Addl. District and Sessions
Judge, Mandya (Sitting at Srirangapatnna) in
S.C.No.5046/2013, thereby acquitting the Respondents
/ accused of the offences punishable under Sections
143, 147, 447, 324, 307, 114, 504, 506 r/w Sec.149 of
IPC; ii) set aside the judgment and order of acquittal
dated 25.11.2015 passed by the III-Addl. District
and Sessions Judge, Mandya (Sitting at Srirangapatnna)
in     S.C.No.5046/2013,     thereby    acquitting   the
                              3


Respondents /accused of the offences punishable under
Sections 143, 147, 447, 324, 307, 114, 504, 506 r/w
Sec.149 of IPC; and iii) convict and sentence the
accused/respondents for the offences with which they
have been charged in accordance with law.

     This criminal appeal coming on for hearing this
day, K. Somashekar .J delivered the following:

                   JUDGMENT

This appeal is directed against the judgment

rendered by the Trial Court in S.C.No.5046/2013 dated

25.11.2015, acquitting the accused for offences

punishable under Sections 143, 147, 447, 324, 307,

114, 504, 506 read with Section 149 of the IPC, 1860.

This appeal is filed seeking to consider the grounds

urged and consequently set aside the acquittal

judgment and to convict the accused for the offences

leveled against the accused persons.

2. Heard the learned HCGP for the State Shri

Rahul Rai K and learned counsel Shri M. Sharass

Chandra for Respondent Nos.1 to 7 who are present

before court physically. Perused the acquittal judgment

rendered by the Trial Court in S.C.No.5046/2013

consisting the evidence of PW-1 to PW-14 and so also

the documents at Exhibits P1 to P23 inclusive of MO-1

to MO-7 and so also the exhibited documents on the

part of the accused as D1 to D11.

3. The factual matrix of the appeal are as under.

It transpires from the case of the prosecution that one

Shashi W/o. C.S. Girish launched criminal prosecution

against the accused by filing a complaint at Exhibit P1

and based upon her complaint, criminal law was set

into motion by registering a case in Cr.No.158/2012 at

Arakere P.S. on recording an FIR as per Exhibit P13. In

her complaint, she has stated that in Sy.No.73

consisting of 7 guntas of land situated in the limits of

Doddaharohalli village, which stands in the name of her

father-in-law namely Sannegowda, already there was

some dispute with regard to the said land between her

father-in-law Sannegowda and his elder brother

Ballarygowda and so also his sons, and that there was a

quarrel ensued in between them. As on 27.08.2012 at

around 7.00 a.m. complainant who is arraigned as

PW-1 namely Shashi and her husband Girisha and also

her father-in-law Sannegowda had been to the aforesaid

landed property situated in the limits of Doddaharohalli

village and they were engaged in their work in the

landed property. On that day at around 9.30 a.m. when

they were engaged in their work, Devegowda @

Ballarygowda and also his sons Kempegowda,

Jayaramu, Ballarygowda's wife Devamma, Lakshmi,

Asha, Usha and Ninge Gowda by forming an unlawful

assembly, had proceeded to the land of Sy.No.73. On

seeing the complainant and her husband namely

Girisha C.S., the accused persons stated above who

were unlawfully assembled, had committed criminal

trespass into the aforesaid landed property and

assaulted her husband namely C.S. Girisha on the left

leg knee part with a handle of showel / spade. Due to

the assault made by the accused persons, the said

Girisha sat on the ground itself. At that time, one

Jayaramu who is arraigned as Accused No.2 is also

alleged to have assaulted Girisha on the head part with

means of long. At the time of the incident, Girisha who

put his left hand in order to rescue from the hit made

by the accused. As he turned away his head, he had

sustained injuries on his left shoulder and he sustained

cut injury. When Jayaramu again hit with the long,

Girisha sustained injury on his left hand. In the

meanwhile of the altercation as narrated in the

complaint, the accused Devamma and Lakshmamma

had also provoked the other accused to finish the

complainant's husband C.S. Girisha. It is stated that

Asha and Usha had abused the complainant's husband

C.S. Girisha in filthy language. Due to provocation by

Jayamma and Lakshmamma, Kempegowda and

Jayaramu had participated with other accused to

commit the alleged offences. Due to screaming made by

the complainant, PW-1 / Sashi and Sannegowda, the

persons who were working nearby being neighbourers of

the neighbouring land came to the scene of crime

namely Satisha, Anil Kumar, Prakash and one Teju and

they have quelled the incident. At that time, the

aforesaid persons had threatened to take away the life

of the complainant PW-1 Shashi and also threatened

her husband C.S. Girisha. Subsequent to the incident,

in terms of the assault made by the accused persons on

the injured C.S. Girisha, accused had left the weapons

alleged to be used by them at the said place itself. Due

to the assault made by the accused, complainant's

husband C.S. Girisha sustained injuries and was

shifted to Mandya District Hospital by securing a 108

Ambulance whereby he took treatment. On 27.08.2012,

complaint at Exhibit P1 was lodged by her and based

upon her complaint, criminal law was set into motion by

registering the case and also by recording an FIR as per

Exhibit P13 for the offences reflected in the FIR.

4. Subsequent to registration of the crime and

criminal law being set into motion by recording the FIR,

the case was taken up for investigation by the I.O. and

he investigated the entire case and laid a charge-sheet

against the accused before the Committal Court.

Subsequent to laying of the charge-sheet by the I.O., the

Committal Court had passed an order under Section

209 of the Cr.P.C. by following the provisions of

Sections 207 and 208 of the Cr.P.C.

5. Subsequent to committing the case by passing

a committal order by the Trial Court to the Sessions

Court for trial, the case in S.C.No.5046/2013 was

assigned and thereafter accused were secured to face

trial. Accordingly, accused persons had engaged the

services of a counsel to proceed with the case whereby

they were facing trial. Subsequently, the Trial Court

heard on charge by the learned Public Prosecutor for

the State and the Defence counsel for the accused on

prima facie materials which found place in the record.

The Trial Court thereafter framed the charge against the

accused whereby accused did not plead guilty but

claimed to be tried. Accordingly, plea of the accused

was recorded separately. Subsequent to framing of the

charge by the Trial Court, the prosecution has let in

evidence by subjecting to examination in all PW-1 to

PW-14 and also got marked several documents at

Exhibits P1 to P23 and materials which were secured by

the I.O. during the course of investigation have been got

marked as MO-1 to MO-7. Even on the part of the

defence side, Exhibits D1 to D11 were also got marked.

6. Subsequent to closure of the evidence of the

prosecution, the accused were examined as required

under Section 313 Cr.P.C. for recording the

incriminating statements appearing against them,

whereby the accused had denied the truth of the

evidence of the prosecution adduced so far. Subsequent

to recording the incriminating statements by the Trial

Court, the accused were called upon to enter into

defence evidence as contemplated under Section 233

Cr.P.C., but the accused did not come forward to

adduce any defence evidence.

7. Subsequent to completion of the entire case of

the prosecution, the Trial Court after hearing the

arguments advanced by the learned Public Prosecutor

and so also the counter arguments advanced by the

defence counsel for the accused, on analyzing the

evidence of PWs 1 and 2 relating to the complaint at

Exhibit P1 and so also the Wound Certificate at Exhibit

P6 relating to PW-2 Girisha and so also the spot

mahazar at Exhibit P2 inclusive of the MLC register at

Exhibit P7 and seizure panchanama at Exhibit P11 and

FSL report at Exhibit P12 inclusive of the statements of

the witnesses in respect of Exhibit P16 and P17 and

blood group report at Exhibit P18 and even on close

scrutiny of the evidence on the part of the prosecution

inclusive of the cross-examination portion of PW-1 and

PW-2, and the vital witnesses on the part of the

prosecution and more so the Trial Court being

convinced with the evidence, held that the prosecution

has failed to prove the alleged guilt against the accused,

presence and also the role made by each one of the

accused and consequently benefit of doubt has been

extended and acquittal judgment has been rendered by

the Trial Court. It is this judgment which is under

challenge in this appeal by urging various grounds.

8. Learned HCGP for the State in this appeal has

taken us through the evidence of PW-2 / Girisha who is

an injured and more so, he had sustained injuries due

to the assault made by the accused persons, which is

reflected in the Wound Certificate at Exhibit P6 issued

by the Doctor and whereby given treatment to him and

also the injured PW-2 was shifted to District

Government Hospital, Mandya, through a 108

ambulance. However, PW-2 has stated in his evidence

that he being the injured he had explained the role

made by each one of the accused. The evidence of PW-2

is clearly corroborated with the evidence of other

witnesses such as PW-1 namely Shashi who is none

other than the wife of the injured / PW-2 and also

corroborated with the evidence of PW-6 being the Doctor

and PW-14 who treated the injured. To the fullest

extent, they have supported the case of the prosecution

relating to the role made by each one of the accused as

regards the averments made in the complaint at Exhibit

P1. But the Trial Court has misdirected the evidence of

the prosecution witnesses and also mis-interpreted the

evidence of PW-1 and PW-2 inclusive of the medical

evidence relating to the Wound Certificate at Exhibit P6.

Therefore, in this appeal, it requires to re-appreciate the

evidence and also re-visit the impugned judgment of

acquittal rendered by the Trial Court.

9. The second limb of arguments advanced by the

learned HCGP for the State is by referring to the

evidence of PW-7 who is an independent witness and

this witness had also supported the case of the

prosecution. In spite of the evidence of PW-7 which is

corroborated with the evidence of PW-2 injured and also

further corroborated with the evidence of PW-1, the

Trial Court has acquitted the accused. Based upon

PW-1's complaint at Exhibit P1, criminal law was set

into motion and the injuries were inflicted on PW-2 by

the accused persons and more so, they have caused the

injuries as reflected at Exhibit P6. Accused persons not

only inflicted injuries over PW-2 but also they have

abused him in filthy language and had made attempt to

take away his life by twisting his left hand shoulder and

made him to fall on the ground and assaulted him with

means of MO-6 / long and MO-7 / spade. As a result of

that, PW-2 had sustained injuries as reflected at Exhibit

P6 of the Wound Certificate issued by the Doctor.

Whereas the Trial Court had misdirected and also

misinterpreted the evidence on the part of the

prosecution and failed to consider the evidence of

PW-2/injured and also failed to consider the evidence of

PW-6 and PW-14 being the Doctor whereby treated the

injured PW-2 and issued the Wound Certificate and also

MLC report. Therefore, it requires in this appeal for re-

visiting the impugned judgment of acquittal. If not, it

would result in a substantial miscarriage of justice. On

all these premise, learned HCGP for the State submits

vehemently and also seeking consideration of the

grounds urged in this appeal and to set aside the

acquittal judgment rendered by the Trial Court and to

convict the accused for the offences punishable under

Sections 143, 147, 447, 324, 307, 114, 504, 506 read

with Section 34 of the IPC, 1860.

10. Learned counsel Shri M. Sharass Chandra for

the respondent / accused has taken us through the

evidence of PW-1 in respect of Exhibit P1 of the

complaint made by her and based upon the same,

criminal law was set into motion. But the spot mahazar

at Exhibit P2 makes it clear that the scene of offence is

in the land bearing Sy.No.73. Exhibit P1 is the

complaint. Criminal law was set into motion by alleging

that the accused persons had trespassed into the

aforesaid landed properties and committed offences as

alleged in her complaint at Exhibit P1. But Exhibit P2

is the spot mahazar which makes it clear that the scene

of offence is situated in 7 guntas of land of Sy.No.73 of

Doddaharohalli village. But the blood stained mud and

also un-bloodstained mud is said to have been seized by

the I.O. by drawing the mahazar and the same has been

seized even in the presence of panch witnesses. But

PW-1 and PW-2 have been subjected to examination on

the part of the prosecution. But in their cross-

examination, it reveals that the injured PW-2 / C.S.

Girisha who is none other than the husband of PW-1

Shashi and her husband PW-2 were allowed to carry the

fodder nearby the channel and while he was climbing on

the channel bund, in the meanwhile the accused

persons have arrived with a group and they have

proceeded on the aforesaid channel bund. However, in

the meanwhile, PW-1 Shashi had also climbed in that

channel bund and while he was proceeding, Accused

No.1 namely Kempegowda is alleged to have assaulted

with means of the handle of a spade on the knee part.

This was the evidence which has been elicited by the

defence during the course of cross-examination. But

PW-3 to PW-5 in their cross-examination after

subjecting to examination-in-chief on the part of the

prosecution and even in the incisive cross-examination

done, nothing worthwhile has been elicited in their

evidence to corroborate with the evidence of PW-1 who

is the complainant at Exhibit P1 and so also the

evidence of PW-2 / injured. But the scene of crime even

deposed by PW-1 and PW-2 relating to referring the

scene of offences at Sy.No.73 are found to be some

inconsistencies and contradictions in comparison with

the evidence of PW-3 to PW-5 with the evidence of PW-1

and PW-2. They are vital witnesses on the part of the

prosecution. Therefore, the Trial Court has held that

the prosecution has failed to prove the place of offence

i.e., scene of crime at Exhibit P2 as drawn by the

Investigating Agency.

11. PW-1 who is the complainant at Exhibit P1

and PW-2 who is the injured to impeach the credibility

of the evidence of PW-2 and the same has been elicited

during the course of the cross-examination of the vital

witnesses of PW-1 and PW-2. There was a specific

defence taken that there was some enmity emerged in

between the family members of the accused and so also

the family members of PW-1 and PW-2 and several

criminal cases were also registered against PW-2 namely

Girisha. Even in the cross-examination of PW-1 and

PW-2, they have admitted in their evidence relating to

civil dispute emerged in between present Accused Nos.1

to 3 and also the father of PW-2 and another person,

the civil suit has been initiated and whereby produced

the certified copies of the judgment in O.S.No.15/2008

marked at Exhibit D1 and even the order-sheet

maintained in R.A.No.31/2012 marked at Exhibit D2

and copy of the FIR at Exhibit D3 and certified copy of

the documents at Exhibits D4 and D5 inclusive of the

certified copy of the judgment in C.C.No.728/2002 at

Exhibit D6 have been produced by the counsel on the

part of the accused, whereby the aforesaid civil suit was

decreed in favour of Accused No.1 and Accused No.3.

Against that decree made by the Civil Court in the

aforesaid civil suit, CW-3 preferred an appeal before the

First Appellate Court. But the said appeal came to be

dismissed for non-prosecution as per Exhibit D2 of the

order-sheet maintained by the First Appellate Court.

These are all the evidence which have been elicited

during the course of cross-examination of PW-2. But

more importantly, Exhibits D3 to D6 relating to criminal

cases in respect of the judgment rendered and also

confronted. From these documents, it is clear that

PW-2 / C.S. Girisha who is none other than the injured

and so also being the husband of PW-1, had committed

theft of motor bike. Therefore, two criminal cases were

prosecuted against him and another person also has

been included in the criminal cases for offences under

Section 379 of the IPC. On the complaint of one Sheela,

the case has been registered for offences punishable

under Section 354 of IPC, 1860 against him and it had

ended in acquittal as the matter was compromised

between the parties. However, impeaching the

credibility of evidence even in the initiation of criminal

prosecution by filing a complaint by PW-1 being the wife

of PW-2 injured, his credibility should be taken into

consideration and the same has been made an

observation by the Trial Court and also consideration of

the credibility of the evidence of PW-2 that the injured

in respect of injuries sustained on his person as

indicated at Exhibit P6 of the Wound Certificate issued

by PW-6 / Doctor.

12. The second limb of arguments advanced by

the learned counsel and counter to the arguments

advanced by the learned HCGP for the State by urging

various grounds in this appeal seeking intervention.

During the course of cross-examination, PW-1 has

clearly admitted that in the house of accused persons,

the remaining other family members two children aged

about 4 to 5 years and two children aged 3 years of

Accused Nos.5 and 6 were present. As according to the

evidence of PW-1 given on 23.03.2015, as on the said

date both Asha and Usha who were arraigned as

accused had three year old children. Hence, at the time

of the incident which occurred in the year 2012, as

according to a prudent man, both Asha and Usha might

have been carrying women or in their advanced stage of

delivering babies. Therefore, in the circumstances, their

presence in the land bearing Sy.No.73 whereby the

incident had taken place is highly improbable and

hence it does not probabalise the involvement of the

aforesaid accused persons in the offences.

13. But according to Exhibit P6 / Wound

Certificate issued by PW-6 / Doctor, history of injury is

mentioned as assault around 9.30 a.m. on 27.08.2012

near the field of Jayaramu, Kempegowda and Kulla and

group of 6 persons as mentioned in the history of injury

inflicted. But it is the specific case of the accused

persons that after arrival of PW-6 they have discussed

about lodging of the complaint and by pressurizing the

Doctor, the stated history was got mentioned by PW-7.

However, in the cross-examination of PW-2, he being an

injured, he has clearly admitted that he came to know

PW-7 when he was in jail. But PW-7 Shankar M @

Sulthana he was in incarceration but during the cross-

examination of PW-7, he has clearly admitted that he

met PW-2 / C.S. Girisha who is an injured in the

incarceration and he has stated that he has not given

statement as per Exhibit D10. But at a cursory glance

of the evidence of PW-1 and PW-2 and so also the

narration made in the spot panchanama and even

timings of arrival of PW-7 to the hospital and all

material contradictions regarding place of occurrence,

the same is seen in their evidence itself. The delay in

lodging the complaint by initiation of criminal

prosecution, creates a doubt relating to the theory of the

prosecution regarding trustworthiness of the evidence of

PW-1, PW-2 and PW-6. These are all the evidence on

the part of the prosecution, which has been considered

by the Trial Court and there is no chance of PW-12

recording the statements of the injured PW-2 at

Chikkaharohalli village, which creates doubt. But PW-

2 was admitted to hospital from 27.08.2012 to

04.09.2012. If this narration is to be termed as true,

two instances cannot simultaneously arise and become

true facts. However, PW-2 has clearly admitted that he

never visited the hospital with reference to his case and

had given his statement before the police. He has

stated that total 8 persons came as narrated there is no

further investigation after recording the statement of

PW-2. In Exhibit D11, the date of assault is mentioned

as 28.08.2012. However, in the totality of the

circumstances of the case of the prosecution and even

in close scrutiny of the evidence of PW-1 and PW-2 and

so also the seizure as per the voluntary statements of

Accused Nos.1 and 2 and even though the seizure

mahazar has been conducted in the presence of PW-8

and PW-9, but these panch witnesses have turned

around in respect of the fulcrum of the seizure mahazar

but they have stated regarding presence of Accused

Nos.1 and 2 and photographs as per Exhibit P9 and

P10. However, on an overall presumption of the

evidence of prosecution and more so to dismantle the

evidence of PW-1 and PW-2 and also elicitation in the

cross-examination done by the defence counsel and

even handing over MO-6 and MO-7 to the I.O. creates

some doubt. When once doubt arises in the mind of the

court, benefit of doubt, it would always accrue on the

part of the accused alone. Therefore, the Trial Court

has rightly come to the conclusion and held that the

prosecution has failed to prove the guilt of the accused

that they had caused the injuries inflicted over the

person of PW-2 as reflected in the Wound Certificate at

Exhibit P6. Accordingly, rendered an acquittal

judgment. Therefore, in this appeal, it does not arise to

call for interference and there is no bone of contention

made by the learned HCGP for the State seeking to re-

visit the impugned judgment rendered by the Trial

Court. On all these premise, learned counsel for the

respondent / accused seeks for dismissal of this appeal

as being devoid of merits and thereby to confirm the

acquittal judgment rendered by the Trial Court.

14. It is in this context of the contentions

vehemently made by the learned HCGP for the State and

so also the counter made by the learned counsel for the

respondents / accused, but offences under Sections

143, 147 of IPC, 1860 have been leveled against the

accused. But Section 141 of the IPC in Chapter VIII

relates to offences against public tranquility and more

so unlawful assembly.

"141. Unlawful assembly.--An assembly of five or

more persons is designated an "unlawful assembly", if

the common object of the persons composing that

assembly is--

(First) -- To overawe by criminal force, or show of

criminal force, 1[the Central or any State Government or

Parliament or the Legis-lature of any State], or any

public servant in the exercise of the lawful power of

such public servant; or

(Second) -- To resist the execution of any law, or

of any legal process; or

(Third) -- To commit any mischief or criminal

trespass, or other offence; or

(Fourth) -- By means of criminal force, or show of

criminal force, to any person, to take or obtain

possession of any property, or to deprive any person of

the enjoyment of a right of way, or of the use of water or

other incorporeal right of which he is in possession or

enjoyment, or to enforce any right or supposed right; or

(Fifth) -- By means of criminal force, or show of

criminal force, to compel any person to do what he is

not legally bound to do, or to omit to do what he is

legally entitled to do. Explanation.--An assembly which

was not unlawful when it assembled, may subsequently

become an unlawful assembly.

15. Section 149 of the IPC, 1860 relates to

common object. To determine the existence of a

common object, the court is required to see the

circumstances in which the incident had taken place

and conduct of the members of the unlawful assembly

including weapons they carried or used on the spot.

But in the instant case, even MO-6 and MO-7 have been

got marked on the part of the prosecution. But the

evidence of PW-1 and PW-2 relating to narrating the

incident at Exhibit P1 of the complaint runs contrary to

the evidence of PW-3 to PW-5. But the entire case

revolves around the evidence of PW-2 who is the injured

and who is none other than the husband of PW-1 who

has launched criminal prosecution against the accused

by filing a complaint as per Exhibit P1. But common

object may form on spur of the moment. Prior concert

in the sense of meeting of unlawful assembly members

even though it is not necessary, but it is the domain

vested with the prosecution to prove the guilt of the

accused by facilitating worthwhile evidence and also

establishing the ingredients of Section 141 which is a

definition section of common object relating to unlawful

assembly.

146. Rioting.--Whenever force or violence is used

by an unlawful assembly, or by any member thereof, in

prosecution of the common object of such assembly,

every member of such assembly is guilty of the offence

of rioting.

While Section 146 IPC defines as to what is

rioting, Section 147 IPC relates to punishment for

rioting.

Being a member of an unlawful assembly with a

common object to commit an offence and must have a

nexus between the common object and offences as

stated in the theory of the prosecution in terms of

charge-sheet laid against the accused. But there must

be some nexus between common object and also

offences committed and if it is found that the same was

committed to accomplish a common object, every

member of the assembly will be liable for the same

offence. This issue has been extensively addressed by

the Hon'ble Supreme Court of India in the case of

ALLAUDDIN MIAN vs. STATE OF BIHAR (AIR 1989 SC

1456).

16. In the instant case, Accused Nos.1 to 7 who

were facing trial before the Trial Court for offences

under Section 143 IPC which is a punishment clause

relating to unlawful assembly. But unlawful assembly

definition should be read together in respect of Section

141 and 142. Then only a conclusion can be arrived as

to what is punishment clause under Section 143 IPC.

Similarly, Section 146 rioting, section 147 punishment

clause of rioting. However, it is the domain vested with

the prosecution to establish the guilt of the accused by

facilitating worthwhile evidence. But in the instant

case, PW-2 being the injured person who is none other

than the husband of PW-1 and who has filed a

complaint at Exhibit P1. But criminal law was set into

motion based upon her complaint. But their evidence

runs contrary to the evidence of PW-3 to PW-5. But

PW-3 to PW-5 being eye-witnesses on the part of the

prosecution, they have given statements before the I.O.

during the course of investigation. But they did not

support the case of the prosecution and turned around

their statements, which is marked as Exhibits D7 to

D10. However, at a cursory glance of the evidence of

PW-1 in respect of Exhibit P1 of the complaint and in

respect of the evidence of PW-2 / injured and this

injured is alleged to have sustained injuries from the

accused persons with means of MO-6 and MO-7. MO-6

is long and MO-7 is spade / pickaxe alleged to have

been used by the accused persons. Injuries are

indicated at Exhibit P6 of the Wound Certificate.

Accused Nos.1 to 7 had unlawfully assembled with a

common object to assault PW-2 whereby he was present

in the land bearing Sy.No.73. Prosecution has not

facilitated worthwhile evidence relating to the

ingredients of each of the offences relating to unlawful

assembly by accused persons with an intention to

commit an offence and also taking away the life of

PW-2 / Girisha.

17. PW-2 has given evidence on the part of the

prosecution that he was involved in an offence of

Section 379 along with other accused and also involved

in an offence of Section 354 and criminal prosecution

has been initiated by filing a complaint by one Sheela.

But impeaching evidence has been elicited during the

course of cross-examination of the vital witnesses of

PW-1 and PW-2, and the same has been seen in the

impugned judgment of acquittal rendered by the Trial

Court. More so, entire case even though it has been re-

appreciated and re-visited the acquittal judgment

rendered by the Trial Court, but the prosecution

miserably failed to prove the guilt of the accused by

facilitating worthwhile evidence and nexus between

common object and the offences committed as alleged

by the prosecution in respect of which the charge-sheet

has been laid by the Investigating Agency.

18. Section 149 of the IPC relates to every member

of an unlawful assembly guilty of an offence committed

in prosecution of a common object. In this provision, it

indicates as every member of an unlawful assembly with

common object to commit an offence. But Section 149

does not create a separate offence but only declares a

vicarious liability of all members of unlawful assembly

for acts done in a common object. It must be prior

concert and even it must be a prior meeting among all

the members to be termed as an unlawful assembly

with a common object to commit an offence. In order to

attract Section 149 of the IPC, it must be shown that

incriminating act was done to accomplish a common

object of unlawful assembly. It must be within the

knowledge of other members as one likely to be

committed in prosecution of a common object. If

members of the assembly knew or were aware of the

likelihood of a particular offence being committed in

prosecution of a common object, then they would be

liable for the same under Section 149. But even on

close reading of the provisions of Section 149 of the IPC,

1860, every member of an unlawful assembly guilty of

an offence committed as in prosecution of a common

object, the ingredients must be established by the

prosecution by facilitating worthwhile evidence. If there

are no ingredients constituted and there is no evidence

on the part of the prosecution forthcoming for

consideration of the common object of every member of

an unlawful assembly under Section 149 of the IPC,

1860 and rest of the offences even though have been

leveled against the accused, would deviate in respect of

the other offences. But in the instant case, Section 324

of the IPC and even Section 307 of the IPC is a major

offence. In those offences, the accused have made

attempt to take away the life of the person i.e., the

injured person. Section 114 of the IPC, 1860 relates to

some provocation or in terms of instigation. Section

504 of the IPC it would cause some public peace and

tranquility due to an incident in case alleged to be

committed by the accused person. Section 506 of the

IPC there are first and second parts. The second part

attracts punishment more than the first part. Merely

because criminal intimidation was extended, unless the

ingredients of Section 506 is constituted and

established by the prosecution by providing worthwhile

evidence, then it is arises as diluting the offences leveled

against the accused persons.

19. Whereas in the instant case, Accused Nos.1 to

7 having faced trial and are acquitted for the offences.

Accused Nos.5 and 6 are Asha W/o. Kempegowda and

Usha W/o. Jayaramu. But PW-1 who is the

complainant at Exhibit P1 has clearly admitted that in

the house of the accused persons, the remaining other

family members are 4 to 5 years two children and three

years two children and they are the children of accused

Nos.5 and 6. Therefore, the role of these accused Nos.5

and 6 and also these accused having participated with

other accused as alleged, in respect of the offences

taken place on 27.08.2012, at around 9.30 a.m. in the

scene of crime situated in Sy.No.73 of the land, is highly

improbably. Hence, it clearly reveals that there are

clouds of doubts in the theory put forth by the

prosecution. However, under Section 3 of the Indian

Evidence Act, it is the domain vested with the

prosecution to prove the guilt of the accused beyond all

reasonable doubt. Insofar as proving and so also

dis-proving and also not-proved, it is in Section 3 of the

Indian Evidence Act, 1872. But it is the duty cast upon

the prosecution to establish the guilt against the

accused by facilitating worthwhile evidence. Similarly,

the domain is vested with the Trial Court for

appreciation of the entire evidence on the part of the

prosecution. But in the instant case, the Trial Court

has rightly come to the conclusion that the prosecution

has not established the guilt against the accused by

facilitating worthwhile evidence. When doubt arises in

the mind of the court and when clouds of doubt arises,

in criminal justice delivery system, that benefit of doubt

shall accrue on the accused alone. Accordingly, benefit

of doubt has been accrued in this case on the part of

the accused and Trial Court has rendered an acquittal

judgment by assigning sound reasons relating to failure

of the prosecution to establish the guilt against the

accused to secure conviction.

20. At a cursory glance of the grounds urged in

this appeal preferred by the State and even re-

appreciating the evidence on the part of the prosecution,

that too vital evidence of PW-1 and PW-2 inclusive of the

evidence of PW-6 and PW-14 and so also the I.O. who

conducted spot mahazar and seizure mahazar and

seized the blood stained mud and un-bloodstained mud

inclusive of the material objects of MO-6 and MO-7, but

no worthwhile evidence has been elicited by the

prosecution. Consequently, as regards the cardinal

principles of the criminal justice delivery system and so

also to prove the facts, it is the domain vested with the

Trial Court and the Trial Court has rightly come to the

conclusion and held that the prosecution has miserably

failed to prove the guilt of the accused. Consequently,

the Trial Court has acquitted the accused by extending

the benefit of doubt mainly on the ground that the

possibility of the accused having committed the offences

as narrated in the theory put forth by the prosecution

founds doubtful. Therefore, in this appeal, we are of the

opinion that the prosecution has miserably failed to

prove the guilt against the accused and more so, the

Trial Court has rightly come to the conclusion by

rendering an acquittal judgment. Consequently, the

appeal does not have any bone of contention to re-visit

the impugned judgment of acquittal and also to re-

appreciate the evidence as sought for. Consequently,

we are of the opinion that the appeal deserves to be

rejected as being devoid of merits. Accordingly, we

proceed to pass the following:

ORDER

The appeal preferred by the appellant / State

under Section 378(1) and (3) of the Cr.P.C. is hereby

rejected. Consequently, the acquittal judgment

rendered by the Trial Court in S.C.No.5046/2013 dated

25.11.2015 is hereby confirmed. If any bail bond has

been executed by the accused persons, the same shall

stand cancelled.

Sd/-

JUDGE

Sd/-

JUDGE

KS