State Of Karnataka vs Madivalappa S/O. Adiveppa ...
2022 Latest Caselaw 1272 Kant

          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

      DATED THIS THE 28TH DAY OF JANUARY, 2022

                      PRESENT

 THE HON'BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY

                         AND

        THE HON'BLE MR. JUSTICE S. RACHAIAH

          CRIMINAL APPEAL NO.100163/2017

BETWEEN

STATE OF KARNATAKA
REPRESENTED BY THE
POLICE SUB-INSPECTOR,
NAVALAGUND POLICE STATION,
DIST: DHARWAD,
THROUGH THE ADDITIONAL
STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
                                         .....APPELLANT
(BY SRI V.M. BANAKAR, ADDL. SPP)

AND

1 . MADIVALAPPA S/O. ADIVEPPA TALAVAR
AGE:56 YEARS,
OCC:AGRICULTURE

2 . KARIYAVVA W/O. MADIVALAPPA TALAWAR
AGE:50 YEARS,
OCC:HOUSEHOLD
                                  Crl.A.No.100163/2017

                          2



3 . DURAGAPPA S/O. MADIVALAPPA TALAWAR
AGE:32 YEARS,
OCC:AGRICULTURE

4 . MADIVALAPPA S/O. PAKKIRAPPA TALAVAR
AGE:40 YEARS,
OCC:AGRICULTURE

5 . SHASHIKALA W/O. MADIVALAPPA MYAGERI
AGE:35 YEARS,
OCC:HOUSEHOLD

6 . NAGAVVA W/O. DURAGAPPA TALAVAR
AGE:25 YEARS,
OCC:HOUSEHOLD
ALL ARE RESIDIENT OF SHIRAKOL
TQ:NAVALGUND
DIST:DHARWAD.                     ...RESPONDENTS

(BY SRI. R.H.ANGADI, ADV. FOR R2 TO R6
R1- ABATED)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378
(1) 2 (b) AND (3) OF CR.P.C., SEEKING TO GRANT SPECIAL
LEAVE TO APPEAL AND TO SET ASIDE THE JUDGMENT AND
ORDER OF ACQUITTAL DATED 28.12.2016 PASSED BY THE
III ADDL. DISTRICT AND SESSIONS JUDGE AND SPECIAL
JUDGE, DHARWAD IN CRL. A. NO. 86 OF 2015 AND TO
CONFIRM THE JUDGEMENT AND ORDER PASSED BY THE
TRIAL COURT IN C.C.NO. 117 OF 2011 DATED 06.08.2015.

     THIS CRIMINAL APPEAL COMING ON FOR FINAL
HEARING    THROUGH     PHYSICAL  HEARING/VIDEO
CONFERENCING       HEARING      THIS      DAY,
Dr.H.B.PRABHAKARA SASTRY, J., DELIVERED THE
FOLLOWING:
                                            Crl.A.No.100163/2017

                                 3


                           JUDGMENT

The present respondents were convicted for the

offences punishable under Sections 143, 147, 148, 323,

326, 504, 506 r/w Section 149 of Indian Penal Code

(hereinafter for brevity referred to as, 'IPC') in CC

No.117/2011, by the learned JMFC at Navalgund (hereinafter

for brevity referred to as 'the Trial Court') and were

sentenced accordingly vide its judgment of conviction and

order of sentence dated 06.08.2015.

2. Aggrieved by the same, the present respondents

as accused preferred an appeal in the Court of the learned III

Additional District and Sessions Judge and Special Judge,

Dharwad, (hereinafter for brevity referred to as 'the Sessions

Judge's Court') in Crl.A.No.86/2015.

3. After hearing both sides, the Sessions Judge's

Court by its impugned judgment dated 28.12.2016 allowed

the appeal, set aside the judgment of conviction and

acquitted the accused of the alleged offences. Aggrieved by Crl.A.No.100163/2017

the same, the complainant-State has preferred the present

appeal.

4. The summary of the case of the prosecution is

that the complainant-Yellappa is the resident of Shirakol

village in Navalgund taluk. There was a rivalry between the

complainant's family and that of the accused in connection

with a local election. That being the background, it is alleged

by the complainant that on 03.07.2010 at about 8.30 a.m.,

when he attempted to remove a fence alleged to have been

erected by the accused, the same was objected to by the

accused. The accused are the neighbours of the

complainant. It is also alleged by the complainant that the

accused abused him in filthy language and assaulted him.

After hearing the noise, the son, daughter and wife of the

complainant also rushed to rescue the complainant, the

accused assaulted them also and abused them by filthy

language. The accused also attempted to outrage the

modesty of the daughter of the complainant by attempting to

undress the saree worn by her. Complainant has specifically Crl.A.No.100163/2017

stated that the accused in the process have assaulted him on

his left knee with the handle of a spade and an axe which

resulted in fracture of his leg. They also inflicted him various

other simple injuries. They also inflicted simple injuries upon

his wife, daughter and son. The complaint lodged by the

complainant in that regard under Crime No.208/2010 with

the jurisdictional police was investigated by the police and

charge sheet has been filed. Since the accused not pleaded

guilty, trial was held by the trial Court wherein in support of

its case, the prosecution examined ten witnesses as P.W.1 to

P.W.10 and got marked documents from Exs.P1 to P9 and

two handles of a spade and an axe were marked as M.O.1

and M.O.2 respectively. (However, in the Annexures to the

impugned judgment passed by the trial Court mentioning

with respect to M.O.1 and M.O.2 have not been made.)

5. The respondents have been represented by their

learned counsel. The trial Court records were called for and

same were placed before this Court.

Crl.A.No.100163/2017

6. Heard arguments from both sides, perused the

materials placed before this Court including the impugned

judgment and the trial Court records.

7. The points that arise for our consideration are:

1) Whether the prosecution has proved the alleged guilt against the accused beyond reasonable doubt?

2) Whether the impugned judgment of acquittal passed by the Sessions Judge's Court in CrlA.No.86/2015 dated 28.12.2016 warrants any interference at the hands of this Court?

8. Among the ten witnesses examined by the

prosecution, PW-1(CW1) Yellappa Hanumantta Talwar is the

complainant -cum- alleged injured in the incident. The said

witness in his examination-in-chief has reiterated the

contents of his complaint. He has stated that, on 03.07.2010

at about 8.30 a.m., after noticing that the accused have put

up a fencing in the premises of his house, was attempting to Crl.A.No.100163/2017

remove it. It was at that time all the accused forming an

unlawful assembly approached him and started objecting for

the complainant removing fencing. The witness has further

stated that in the said process, the accused abused him in

filthy language. Apart from assaulting him with their hands,

accused Nos.3 and 4 making use of the handle of a spade

and an axe assaulted him on the left knee. The witness has

further stated that at his crying due to pain, CW6 and CW8

also rushed to the place. The accused attempted to outrage

the modesty of CW6 by holding her hand and pulling and

pushing her. They also assaulted CW8. It was at that time,

CW4 rescued them. Putting him life threat to them, the

accused left the place. Stating so, PW1 has identified his

complaint at Ex.P1 and handle of the spade and axe at M.O.1

and M.O.2. The said witness was subjected to a detailed

cross-examination from the accused side. The other five

material witnesses upon whom the prosecution relied upon in

order to prove the alleged incident and the alleged guilt

against the accused was PW5-Sudha Yellappa Talwar (CW6),

PW8-Mudakappa Chambanna Belagoodi (CW5), PW4-

Crl.A.No.100163/2017

Basappa Ningappa Banadoor (CW4), PW9- Hanamanth

Yellappa Talavar (CW10) and PW10-Smt. Shantavva

Yellappa Talwar (CW8). Among these three alleged material

witnesses, who according to prosecution are the eye-

witnesses, admittedly, PW10 (CW8) is the wife. PW9 (CW10)

is the son and PW5 (CW6) is the daughter of the complainant

(PW1). However, all these three witnesses, who are none

else than the family members of the alleged injured (PW1),

have not supported the case of the prosecution. They have

given a complete go by to the case of prosecution by stating

that no alleged incident on the alleged date has taken place.

Interestingly, even though PW1 has stated that in the alleged

assault, he sustained fracture, which fracture has been

further corroborated by the medical evidence through PW7-

Dr.Vishwanath Payappa Kallangadi and the wound certificate

at Ex.P6 and X-ray repot at Ex.P10, however, the prosecution

which cross-examined PW5, PW9 and PW10 did not elicit

from them as to what was the cause for the alleged fracture

sustained by none else than their family member i.e., PW1.

Crl.A.No.100163/2017

9. The other two material witnesses who also the

prosecution projected as eye witnesses to the incident and

examined as PW4 (CW4) and PW8 (CW5) have also not

supported the case of prosecution. They have totally turned

hostile to prosecution, expressing their ignorance about the

alleged incident. Even after cross-examining all these

material witnesses, the prosecution could not gain any

support from them in their cross-examination. No doubt,

PW5 in her cross-examination has admitted a suggestion that

they have compromised the matter with the accused. But,

such a stray suggestion said to have been admitted by PW5

itself is not sufficient to disbelieve the evidence of other

material witnesses, particularly, PW4, PW8 who are

independent witnesses. Therefore, in the absence of any

support by all other important and other material witnesses,

except PW1, the entire case of the prosecution rests upon

the alleged injured witness i.e. PW1 and the medical

evidence i.e. of PW7.

Crl.A.No.100163/2017

10. As already observed above, no doubt PW1 has

stated that it was the accused and accused alone who

assaulted him. However, it cannot be ignored of the fact that

if according to PW1, there were 8 accused who assaulted him

but his main allegation in his evidence is only with respect to

accused Nos.3 and 4, who according to him, have assaulted

him by making use of the handles of a spade and an axe. He

has not alleged any overt act against other accused. When

PW1 claims to have witnessed the entire episode and apart

from himself sustaining some injuries in the alleged assault is

also said to have witnessed the alleged acts said to have

been committed by all the accused upon his other family

members who are PW5, PW9 and PW10, but, he (PW1) could

not able to say as to which particular accused has assaulted

which particular members of his family and in what manner.

He could not even say as to who among the large number of

accused have attempted to outrage the modestly of his

daughter and misbehaved with his wife and assaulted them.

As such, his evidence in the form of examination-in-chief

which is a very brief evidence, lacks all these details which Crl.A.No.100163/2017

were very much essential and necessary in order to ascertain

the truthfulness in the statement of PW1 as a witness.

Therefore, his evidence that accused came to the place, he

was attempting to remove the fence and assaulted him

appears to be too vague and too bald a statement.

11. The Doctor who was examined as PW7 no doubt

has stated about he examining PW1 and noticing some

contusion and some injuries upon the complainant and he

issuing a wound certificate as per Ex.P6 and a X-ray report

as per Ex.P10, however, in his evidence he has stated that

regarding the internal injuries after obtaining the X-ray when

he verified it, he noticed that some bones on the part of the

ear were found fractured. Surprisingly, it was nobody's case

that any of the assaultees had sustained any injuries on the

ear. The specific case of the prosecution was that it was PW1

alone who had sustained fracture injury on his left leg. The

wound certificate at Ex.P6 also shows that the fracture injury

was present on the 1/3rd of tibia. Therefore, it has to be

taken that either the doctor while mentioning instead of Crl.A.No.100163/2017

stating 'kaalu (PÁ®Ä)' has stated as 'kivi (Q«)' or a

typographical error instead of 'leg' has been typed as 'ear'.

Still the fact remains that assuming that the injured has

sustained fracture on his left knee at 1/3 of tibia, still the

medical evidence no way mentions that the said injury could

have been caused when a person is assaulted with M.O.1 or

M.O.2 or that such an injury was inflicted upon the injured by

any human agency.

Nothing had prevented the prosecution to submit M.O.1

and M.O.2 for the medical opinion to PW7 and to secure his

opinion to establish the relationship between the weapon and

the alleged fracture injury said to have been sustained by

PW1. No attempt has been made either by the Investigating

Officer or by the prosecution in that regard. When the

Investigating Officer has not obtained a medical opinion to

establish the relationship between the ceased weapons and

the injury, it was incumbent upon the learned prosecutor in

the trial Court to elicit the opinion from the doctor at least

producing M.O.1 and M.O.2 before him and secure his

opinion so that it would have been enabled to establish the Crl.A.No.100163/2017

relationship between the alleged weapon and the injury.

Therefore, when both the Investigating Officer and the

prosecution has not made any attempt in that regard, merely

because PW1 has stated that it was by using M.O.1 and

M.O.2, he had been assaulted by accused Nos.3 and 4 and

more particularly when the same was specifically denied in

his cross examination, the said evidence of PW1 that he was

assaulted either by accused Nos.3 and 4 and by using M.O.1

and M.O.2 cannot be taken as established.

12. No doubt the evidence of an inured witness would

not be generally discarded or disbelieved, and a conviction

can be pronounced by the sole evidence of an injured witness

provided the said evidence of injured witness inspires

confidence in the Court to believe the same beyond

reasonable doubt.

13. In the instant case, no doubt PW1 has stated that

he was assaulted by the accused, but as observed above,

when there were not less than eight accused in the alleged

incident (however, it was six accused who were subjected to Crl.A.No.100163/2017

trial in the trial Court), it was required of PW1 to mention as

to which particular accused has practiced which assault upon

him and in what manner so also being the father of PW5 and

PW9 and wife of PW10, PW1 could have in the alleged

circumstance of the case noticed the overt acts of the

accused upon his other family members (PW5, PW9 and

PW10). However, the evidence of PW1 is totally silent on all

these aspects. Therefore, a mere stray sentence of PW1 that

the accused misbehaved with his wife and daughter cannot

be taken as an established fact when particularly the very

same wife and daughter have totally given a go by to the

case of prosecution by specifically denying the occurrence of

the incident.

Added to the above, even though the prosecution has

projected PW9 (CW7) also as an eye witness and as a son of

PW1 but nowhere the said PW1 in his evidence has

mentioned anything about said PW9 either as a person

present in witnessing the incident or as the one who also

been attacked and assaulted by the accused. Had really the Crl.A.No.100163/2017

incident has taken place wherein his alleged son (PW9) has

also been assaulted by the accused then definitely PW1 being

his father would have mentioned about the same in his

evidence. All these aspects clearly go to show that PW1 who

admittedly had enmity as against the accused has though

made a complaint against the accused but could not able to

establish that the allegations made in the complaint were the

facts and the accused have actually assaulted him and

committed the alleged offences. The said doubt in the case

of prosecution further aggravates in the background of the

family members of non else than PW1, i.e. PW5, PW9 and

PW10 also having not supported the case of prosecution even

to a smallest extent.

14. In addition to the above, the alleged two

independent eye-witnesses who according to prosecution

were eye-witnesses to the incident and among whom

PW4 said to be the one who had rescued PW1 from the

alleged attack made by the accused, have also given a total

go by to the case of prosecution. Both PW4 and PW8 have Crl.A.No.100163/2017

pleaded their total ignorance about the alleged incident.

Thus, when not only the large number of material witnesses

but also the alleged material witnesses including the family

members of PW1 himself have not supported the case of

prosecution and also when the evidence of alleged sole

injured witness, i.e. PW1 is also does not inspire any

confidence to believe the same, it is not safe to hold that the

alleged guilt against the accused has been proved by the

prosecution beyond reasonable doubt. Since the trial Court

without appreciating the several serious doubts existing in

the case of prosecution had solely relied upon the evidence of

PW1 by embracing the said evidence of PW1 as an absolute

truth, the Sessions Judge's Court has appropriately set aside

the said judgment of conviction and has pronounced the

judgment of acquittal as against all the accused before it.

Thus we do not find any error in the said impugned judgment

passed by the learned Sessions Judge, hence, we do not find

any reason in interfering in the said judgment passed by the

Sessions Judge's Court.

Crl.A.No.100163/2017

15. Accordingly, we proceed to pass the following

order:

ORDER

The Appeal stands dismissed as devoid of merits.

Registry to transmit a copy of this judgment along with

the trial Court and Sessions Judge's Court records to the

concerned Courts immediately.

Sd/-

JUDGE

Sd/-

JUDGE

Vmb