Siddappa S/O Jettappa Karjol vs The State Of Karnataka And Ors
2022 Latest Caselaw 3445 Kant

                              1


          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

       DATED THIS THE 2ND DAY OF MARCH 2022

                          PRESENT

       THE HON'BLE MR.JUSTICE K.SOMASHEKAR
                            AND
 THE HON'BLE MR.JUSTICE ANANT RAMANATH HEGDE


           CRIMINAL APPEAL NO.3653/2012
Between:

Siddappa S/o Jettappa Karjol,
Age: 49 years, Occ: Agriculture,
R/o Halladgennur Village,
Tq: B.Bagewadi, Dist: Bijapur.
                                            ... Appellant

(By Shri Sanganabasava B.Patil, Advocate)

And:

1. The State of Karnataka,
   Rep. by the PSI., Kolhar PS.

2. Mahadev @ Mahadevappa
   S/o Mallappa Arjunagi,
   Age: 27 years, Occ: Agriculture,

3. Vithal S/o Mallappa Arjunagi,
   Age: 23, Occ: Agriculture,

4. Malakappa s/o Mallappa Arjunagi,
   Age: 21 years, Occ: Agriculture,
                                2


5. Mallappa s/o Dundappa Arjunagi,
   Age: 48 years, Occ: Agriculture,

Respondent Nos.2 to 5 are
R/o Halladgennur, Tq : B.Bagewadi,
Dist: Bijapur.
                                                    ... Respondents
(Shri Prakash Yeli, Addl. SPP for R1;
Shri S.V.Deshmukh Advocate for
Shri Shivanand V.Pattanshetti, Advocate for R2 to R5)

      This Criminal Appeal is filed under Section 372 r/w
Section 2(w)(a) of Code of Criminal Procedure praying to set
aside the judgment and order of acquittal dated 25.11.2011
passed by the II Addl. Sessions Judge, Bijapur in Sessions
Case No.155/2009 and convict the respondent Nos.2 to 5 for
the offences punishable under Sections 341, 307 and 506
read with Section 34 of IPC.

    This appeal coming on for Further hearing this day,
Anant Ramanath Hegde J. delivered the following:-

                        JUDGMENT

The appellant/complainant in this appeal is questioning

the judgment dated 25.11.2011 passed in Sessions Case

No.155/2009 on the file of II Addl. Sessions Judge, Bijapur

(for brevity hereinafter referred to as 'the learned Sessions

Judge' for short). Acting under Section 235(1) of Code of

Criminal Procedure (for short, 'Cr.P.C.') the learned

Sessions Judge has acquitted accused Nos.1 to 4/respondent

Nos.2 to 5 in respect of the charges under Sections 307, 341,

114 read with Seton 34 of Indian Penal Code (for short,

'IPC').

2. The appellant-Siddappa S/o Jetteppa Karjol filed

a complaint before Kolhar Police Station against respondent

Nos.2 to 5 and based on the complaint, the Kolhar Police

registered a case in Crime No.5/2009 for the offences

punishable under Sections 341, 307, 504 and 114 read with

Section 34 of IPC.

3. In the complaint, it is alleged that on

08.01.2009, at about 7.30 p.m. the appellant was returning

on his bicycle on NH-218 and when he came near the bridge

at Garasangi stream, the second respondent No.2 (accused

No.1) on account of the previous animosity against the

appellant/complainant with an intention to commit murder of

the appellant wrongfully restrained him and tried to hit him

on his head with an iron rod. The complainant managed to

escape the blow on the head however, he could not escape

the blow that hit on the hand. It is his further case that the

complainant sustained grievous injuries on his right arm.

4. The complaint was registered in Crime No.5/2009

against four accused persons who are respondents Nos.2 to 5

in this appeal by the jurisdictional police. The police

investigated the matter and deemed it fit to file a charge-

sheet for the offences punishable under Sections 341, 307,

504 and 114 read with Section 34 of I.P.C. Since the offences

were exclusively triable by the court of Sessions, the case

was committed to II Addl. Sessions Judge, Bijapur, and is

numbered as Sessions Case No.155/2009. The charges were

framed based on the materials on record for the offences

punishable under Sections 341, 307, 504 and 114 read with

Section 34 of IPC. The accused pleaded not guilty and

claimed to be tried.

5. To prove the case of the prosecution, in all, nine

witnesses were examined as PW.1 to PW.9 and seven

documents exhibited as Exs.P.1 to P.7. Material object which

was seized from the spot is marked as MO.1. On conclusion

of the prosecution evidence statement as contemplated

under Section 313 of Cr. P.C was recorded wherein accused

persons have denied all the incriminating evidence against

them, and same was recorded. However, the accused have

not offered any explanation or placed their defence evidence

as contemplated under Section 233 of Cr.P.C.

6. Thereafter, learned Sessions Judge heard the

learned Additional State Public Prosecutor and the defence

counsel.

7. Heard Shri Sanganabasava B.Patil, learned

counsel for the appellant and Shri Prakash Yeli, the learned

State Public Prosecutor for respondent No.1/State and also

Shri S.V.Deshmukh the learned counsel for respondent Nos.2

to 5.

8. The appellant/complainant in support of his

appeal grounds would submit that the learned Sessions

Judge erred in ignoring vital evidence placed on record which

unerringly pointed to the guilt of the accused. It is the

further contention of the learned counsel for the appellant

that the evidence of PW.2 is not properly appreciated by the

trial court which resulted in miscarriage of justice. Further

elaborating on the contentions raised in the appeal memo, it

is submitted before this court that the delay in filing the

complaint is treated as the major suspicious circumstance

and on this ground, the benefit of the doubt is given to the

accused/respondents Nos.2 to 5. It is submitted that the

delay in filing the complaint has been properly explained.

According to the complainant, since he sustained injuries and

was undergoing treatment, there is a delay of two days in

filing the complaint and the same is not fatal to the case of

the prosecution.

9. It is further submitted that though the

complainant went to the police station immediately after the

alleged incident, the police, considering the grievous injuries

sustained by the complainant advised him to take treatment

in the first instance and he was taken to treatment in a

hospital in Vijayapur. Under the circumstances, it is urged

that there is a proper explanation for the delay in filing the

complaint.

10. It is also the case of the complainant/appellant

that motive for commission of the offence is also established

beyond any reasonable doubt and it is urged that the

appellant has stood as surety to one Beerappa to ensure that

Beerappa is released on bail. It is submitted that the case

was filed against Beerappa by the second accused and the

act of the appellant standing as surety to Beerappa is the

motive for the commission of the offence.

11. The learned counsel for the appellant further

submits that the defence of accused Nos.1 to 4 is highly

improbable and the evidence led before the trial court is not

discredited in the cross-examination and the trial court failed

to appreciate all these material facts and erroneously

acquitted accused Nos.1 to 4. On these grounds, it is prayed

to allow the appeal and prayed for conviction of respondent

Nos.2 to 5.

12. Sri. Shivanand V.Pattanshetti, learned counsel

appearing for respondents No.2 to 5 would defend the

judgment of acquittal passed by the trial court and would

submit that the trial court has rightly acquitted the accused

Nos.1 to 4. It is submitted that PW.1 has turned hostile. It is

also submitted that PW.2/complainant being an injured

person is an interested person and not much weight can be

attached to the evidence of PW.2. It is also submitted that

PWs.3 and 4 who are said to be panchas do not support the

case of the prosecution and the recovery of iron rod said to

have been used in the commission of the offence is not

established at all, as can be seen in the evidence of panch

witnesses.

13. It is also the submission of the learned counsel

appearing for respondents Nos.2 to 5 that PW.5 being the

wife of PW.2 though supported the case of the complainant

not much weight can be attached to her evidence, as she is

the interested witness and she is none other than the wife of

the injured. It is also submitted that there are enough

contradictions in the evidence of PWs.2 and 3 which would

create a strong doubt in the mind of the court as to the

theory mooted by the prosecution.

14. Referring to the evidence of PW.7, it is submitted

that even in the examination-in-chief there are enough

contradictions to disbelieve the theory of the prosecution.

Referring to this evidence, it is vehemently urged that the

trial court has delivered the judgment of acquittal by

following the well-established principles of criminal

jurisprudence where the accused is presumed to be innocent

unless proved guilty beyond all reasonable doubt. This court

has considered the contentions raised by the learned State

Public Prosecutor and learned counsel for the respondent/

accused and also perused the impugned judgment.

15. Considering the rival contentions raised by the

learned counsel for the appellant and the learned counsel for

the defence, the following point would arise for

consideration;-

"Whether the prosecution has proved the alleged guilt of the accused beyond all reasonable doubt ?"

16. This court answers the above said point in the

negative for the following reasons.

17. While arriving at such a conclusion, the learned

Sessions Judge has primarily placed his reasoning on the

evidence of the complainant, wherein the complainant states

that before getting admitted to the hospital, he visited the

police station soon after the assault and later on advise by

the police he went to the hospital at Vijayapur and thereafter

he lodged the complaint two days later while he was still

admitted in the hospital. However, the learned Sessions

Judge has taken note of the fact that in the complaint, no

such narration is found. The complaint gives the inference

that the complainant soon after the assault went to the

hospital and he lodged the complaint only after two days.

This statement of the complainant is not supported by the

evidence of PW.8. The relevant portion of the complaint

reads as under:-

``£À£ÀUÉ ¤£Éß UÁAiÀÄ §ºÀ¼À DVzÀÝjAzÀ £ÉÃgÀªÁV E°èUÉ §AzÀÄ zÁR¯ÁVzÀÄÝ ¦üAiÀiÁð¢ PÉÆqÀ®Ä «¼ÀA§ªÁVgÀÄvÀÛz.É ''

18. However, in the evidence of PW.2 it is stated as

under :-

``.............WÀl£É ¸ÀܼPÀ ÉÌ PÀ®¥ è Àà §AzÀ, CªÀ£À eÉÆvÉ £Á£ÀÄ PÉÆïÁgÀ ¥ÉÆð¸À oÁuÉUÉ ºÉÆÃV ¦ügÁå¢ PÉÆlÄÖ £ÀAvÀgÀ ©eÁ¥ÀÆgÀzÀ ¸ÀÄ£ÀUz À À ¥Ánî EªÀgÀ D¸Àv à ÉæUÉ aQvÉì ¥ÀqA É iÀÄ®Ä §AzÉ£ÀÄ. £Á£ÀÄ ¸ÀÄ£ÀUz À À ¥Ánî EªÀgÀ D¸ÀàvA Éæ iÀÄ°è 20 ¢£À M¼ÀgÉÆÃVAiÀiÁV zÁR¯ÁVzÉÝ£ÀÄ. ............''

19. From the aforementioned statement it is

apparent that there are inherent contradictions in the

evidence of PW.2 who is none other than the complainant

and his version in the complaint.

20. From the reading of the evidence of PW.8 the

Station House Officer, it is apparent that the complainant

visited the station before getting admitted to the

hospital. It is stated in the evidence of PW.8 that in case

the victim with serious injury comes to the police station

immediately they will direct the victim to the hospital

along with a Police Constable. In the instant case,

though the complainant is said to be a victim of grievous

injuries is not taken to the hospital by the police.

The learned Sessions Judge has noticed this fact and termed

it as unusual. Thus, it can be safely concluded that the

complainant has not visited the police station as stated in his

evidence.

21. It is also to be noted that the person namely

PW.1 who is said to be the eyewitness to the incident has not

supported the case of the prosecution. PW.7 namely Kallappa

Nijalingappa Kontikall who is named in the complaint as a

person who came to the spot of the incident has also not

supported the case of the prosecution. The learned Sessions

Judge has held that it cannot be believed that despite visiting

the police station immediately after the assault the police

without registering the first information report (FIR) sent the

complainant to the hospital at Vijayapur instead of the

nearest Government Hospital which is said to be one

kilometer away from the police station. Consequently, doubt

has arisen in the mind of the court.

22. Under this circumstance, the learned Sessions

Judge has held that the case of the prosecution is doubtful

and not supported by acceptable evidence and benefit of the

doubt is required to be given to the accused and by giving

the benefit of doubt to the accused, learned Sessions Judge

has proceeded to acquit the accused of the charges levelled

against them.

23. This court places reliance on the judgment of the

Hon'ble Apex Court in the case of Sharad Birdhi Chand

Sarda v. State of Maharashtra reported in 1984 (4)

Supreme Court Cases 116. Wherein the Hon'ble Apex

Court has held that in the event of two views are possible

and one pointing to the guilt of the accused and the other

leading to his innocence, the court shall lean in favour of the

interpretation favouring the accused.

24. This Court has perused the evidence on record

and reasoning assigned by the learned Sessions Judge and

the reasons assigned by the learned Sessions Judge in

acquitting the accused are based on the material available on

record are found to be acceptable as well as justifiable.

25. Under these circumstances, this court does not

find any justifiable ground to interfere with the impugned

judgment, as there is no perversity. Accordingly, we proceed

to pass the following :

ORDER

The appeal preferred by the appellant/complainant is

hereby dismissed.

Consequently, the judgment of acquittal rendered by

the trial court in Sessions Case No.155/2009 dated

25.11.2011 is hereby confirmed.

If any bail bonds executed by the accused/respondent

No.2 to 5 shall stand cancelled.

Sd/-

JUDGE

Sd/-

JUDGE

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