The State Of Karnataka vs Srinivas S/O Madeppa Nelgi And Ors
2022 Latest Caselaw 3534 Kant

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          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

       DATED THIS THE 3RD DAY OF MARCH 2022

                          PRESENT

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


           CRIMINAL APPEAL NO.3616/2013
Between:

The State of Karnataka,
Through Hallikhed-B Police Station,
Represented by its
Addl. State Public Prosecutor.
                                          ... Appellant

(By Shri Prakash Yeli, Addl. SPP)

And:

1. Srinivas S/o Madeppa Nelgi,
   Age: 25 years, Occ: Coolie,

2. Pankaj S/o Madeppa Nelgi,
   Age: 28 years, Occ: Coolie,

3. Smt.Renuka W/o Srinivas Nelgi,
   Age: 22 years, Occ: Coolie,

4. Sundra S/o Manikappa Tamgyal,
   Age: 27 years, Occ: Coolie,
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5. Mavita @ Mavita W/o Sundra,
   Age: 25 years, Occ: Coolie,

6. Madappa S/o Siddappa Nelgi,
   Age: 58 years, Occ: Coolie,

7. Smt.Reshma W/o Madappa Nelgi,
   Age: 53 years, Occ: Coolie,

8. Agastin S/o Madappa Nelgi,
   Age: 22 years, Occ: Coolie,

9. Baswaraj S/o Manikappa Tamgyal,
   Age: 37 years, Occ: Coolie,

10. Smt.Rutha W/o Baswaraj Tamgyal,
   Age: 28 years, Occ: Coolie,

All R/o Village Amirabadwadi,
Tq : Humnabad, Dist : Bidar.
                                              ... Respondents

(Shri Avinash A.Uplaonkar, Advocate)

      This Criminal Appeal is filed under Section 378(1) and
(3) of the Code of Criminal Procedure praying to set aside the
judgment and order of acquittal dated 17.04.2013 passed by
the Principal Sessions Judge, Bidar in Sessions Case
No.70/2010 thereby acquitting the respondents/accused of
the offences punishable under Sections 143, 148, 449, 302,
504, 323 and 115 read with Section 149 of IPC and convict
and sentence the respondents/accused of the aforesaid
offences.

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

The appellant/State in this appeal is questioning the

judgment dated 17.04.2012 passed in Sessions Case

No.70/2010 on the file of Principal Sessions Judge, Bidar (for

brevity hereinafter referred to as 'the learned Sessions Judge'

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

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

Judge has acquitted accused Nos.1 to 10/respondent Nos.1

to 10 in respect of the charges under Sections 143, 148, 449,

302, 504, 323 and 115 read with Section 149 of Indian Penal

Code (for short, 'IPC').

2. Based on the complaint filed against the

accused/respondents, the jurisdictional police i.e., Hallikhed-

B Police Station registered a case in Crime No.90/2010 for

the offences punishable under Sections 143, 148, 449, 302,

504, 323 and 115 read with Seton 149 of IPC.

3. The complaint reveals the following version of the

complainant-Suvarna (PW.2)

4. On 09.05.2010, at about 8.30 p.m. the accused

No.3 was with her child in the front yard of her house. The

brother-in-law of the complainant - Vinod held her and it led

to a quarrel between the members of both family and the

elders of the same lane consoled the family members of the

accused No.1 and advised them to put a quietus. On the day

of the incident, the mother of accused No.1 was not in the

station and she returned on 10.05.2010. At about 7.00 p.m.

on 10th May 2010, all the accused went to the house of the

complainant (PW2) by abusing Vinod. Then the witnesses

Shantkumar and their relatives Ravindra intervened and

pacified the accused and the accused returned to their home.

Again, on the same day at 8.30 p.m. when the complainant,

her brother-in-law, mother-in-law and father-in-law were

sitting in the front yard, accused No.1 to 7 and 10 along with

relatives accused No.8 and 9 went to the house complainant,

armed with deadly weapons. They were shouting that they

would finish Vinod, who has misbehaved with the wife of

accused No.1. The accused barged into the house of the

complainant and damaged the household articles. The

complainant's father-in-law Shankar intervened and

requested them to pardon his son. However, the accused

started assaulting the father-in-law of the complainant hit

him on his right knee causing the bleeding injury. It is also

alleged that Shankar died in the accident.

5. The complaint was registered in Crime

No.90/2010 against the four accused who are respondents in

this appeal. The police investigated the matter filed a charge-

sheet for the offences punishable under Sections 143, 148,

449, 302, 504, 323 and 115 read with Seton 149 of IPC.

Since the offences were exclusively triable by the court of

Sessions, the case was made over to Sessions Court. The

charges were framed based on the materials on record for

the offences punishable under Sections 143, 148, 449, 302,

504, 323 and 115 read with Section 149 of IPC. The accused

pleaded not guilty and contested the matter.

6. To prove the case of the prosecution, in all, 15

witnesses were examined as PW.1 to PW.15 and 18

documents were relied on and were exhibited as Exs.P.1 to

P.18. Material objects which were seized are marked as

MOs.1 to 8. On conclusion of the prosecution evidence

statement as contemplated under Section 313 of Cr. P.C was

recorded wherein the accused have denied all the

incriminatory materials stated against them. However, the

accused have not offered any explanation or placed their

version on record either by examining themselves or by

furnishing any written submissions as is contemplated under

Section 313(5) of Cr.P.C.

7. Thereafter, learned Sessions Judge heard the

parties and passed an order of acquittal.

8. Heard Shri Prakash Yeli, the learned Special

Public Prosecutor for appellant/State and Shri Avinash

A.Uploankar learned counsel for the respondents.

9. The learned Special Public Prosecutor in support

of the grounds raised in the appeal memo would contend that

the Trial Court has wrongly acquitted the accused by ignoring

the vital evidence beyond reasonable doubt and has

established the case of the prosecution.

10. It is urged that PW2 who is an eyewitness has

categorically deposed relating to the assault by accused No.1

who assaulted Shankar with an axe which is marked as

M.O.1. The Trial Court disbelieved the evidence of PW2

without there being any basis. It is the further submission of

the learned Special Public Prosecutor that PW6 who is also an

eyewitness to the incident has supported the case of the

prosecution. Elaborating his submission on the grounds

urged in the appeal memo, it is submitted that minor

contradictions appearing in the evidence cannot be construed

as suspicious circumstances in the case of the prosecution.

It is his further submission that the prosecution need not

prove the allegations with mathematical precision. It is

further alleged that the learned Sessions Judge erred in

appreciating the evidence on record in proper perspective. It

is further alleged that motive for the incident is also

established and the learned Sessions Judge was in error in

holding that the accused were not aggressors and one Vinod

who was the root cause for the incident is the aggressor. On

these submissions, it is urged that the judgment of the

Sessions Court is to be set aside and the accused have to be

convicted for the offences under Sections 143, 148, 449,

302, 504, 323, 115 read with Section 149 IPC.

11. Learned advocate appearing for the

respondent/accused justifying the judgment would submit

that the prosecution has failed to establish the alleged guilt

of the accused beyond reasonable doubt. Taking us through

the evidence of witnesses which has been extracted in the

impugned judgment, the learned counsel would urge that the

evidence led by the prosecution is full of contradictions and

inconsistencies which would create serious doubt in the mind

of the Court about the alleged guilt. The learned counsel

would further submit that the learned Sessions Judge has

followed the well-established principle of law that the

prosecution is required to establish the guilt beyond all

reasonable doubt and having failed to establish the guilt

beyond all reasonable doubt, rightly acquitted the accused.

He would further submit that absolutely no ground is made

out to interfere in the impugned judgment passed by the

learned Sessions Judge.

12. This Court has considered the contentions raised

at the bar, perused the evidence on record and also the

impugned judgment.

13. It is forthcoming from the records that Ex.P.3 is

the complaint which is marked in the evidence of Survarna R-

the complainant who is examined as PW2. The complaint

reveals that the alleged incident took place around 8.30 PM

on 10.05.2010 in the house of the complainant. The

complainant in her complaint has stated that all the accused

barged into the house of the complainant to kill Vinod. It is

further stated in the complaint that the father of Vinod tried

to rescue Vinod when there was an attempt to hit Vinod. It is

further stated that accused no.1 then stated that before

killing Vinod, he would kill his father Srinivas and assaulted

him with an ace on his right knee. The complainant states

that the complainant and her mother-in-law cried for help

and Mr Shanta Kumar who was performing pooja and the

relative of the complainant Ravindra who was in the same

house rushed to the place of the incident and seeing these

two persons, the accused fled from the scene of the offence.

14. The complainant is examined as PW2 and

referring to her evidence in the cross-examination, the

learned Sessions Judge has analysed her evidence. The

learned Sessions Judge has extracted the following

statements in the evidence of PW2 in the impugned

judgment.

"£ÁªÉ¯Áè PÀÆr £ÀªÀÄä ªÀiÁªÀ£ª À j À UÉ §AzÀÄ £ÉÆÃqÀĪÀµÀÖg° À è DvÀ ¸ÀvÀÄÛ ºÉÆÃVzÀÝ£ÀÄ. £ÁªÀÅ ©r¹PÉƼÀĪ î À ¥ÀA æ iÀÄvÀß ªÀiÁqÀ°®è" DUÀ £ÁªÀÅ ²æäªÁ¸À¤UÉ »rAiÀÄĪÀ ¥ÀA æ iÀÄvÀß ªÀiÁr®è, £Á£ÀÄ £ÉÆÃrzÁUÀ £ÀªÀÄä ªÀiÁªÀ UÉÆÃqÉ ¥ÀPÀÌz° À è ©¢ÝzÀÝ. £ÁªÀÅ £ÀªÀÄä ªÀiÁªÀ¤UÉ ¤ÃgÀÄ PÀÄr¹®è, PÁ°UÉ ¥ÀnÖ PÀnÖ®è D ªÉüÉUÉ fêÀ ºÉÆÃVvÀÄÛ. ...... EªÀg® É ègÀÆ PÉÊUÀ¼° À è PÉÆqÀ°, §rUÉ, PÀ§Äâ PÀrAiÀÄĪÀ PÀwÛU¼ À £ À ÀÄß »rzÀÄPÉÆAqÀÄ eÉÆÃgÁV aÃvÁqÀÄvÁÛ «£ÉÆÃzÀ §qÀPÁªÀ J°èzÁÝ£É £ÀªÀÄä ºÉAqÀjUÉ PÉtQzÁÝ£É CªÀ¤UÉ RvÀA ªÀiÁrj CAvÁ aÃgÁqÀÄvÁÛ........ £ÀªÀÄä ªÀiÁªÀ£ª À j À UÉ J®ègÀÆ §rUÉU½ À AzÀ ªÉÄÊvÀÄA¨Á ºÉÆqÉAiÀÄ®Ä ¥ÁægA À ©ü¹zÀgÀÄ ........, ²æäªÁ¸À

EvÀ££ À ÀÄß PÉÆ¯É ªÀiÁqÀĪÀ GzÉÝñÀ¢AzÀ ......., vÀ£ßÀ PÉÊAiÀÄ°èzÀÝ PÉÆqÀ°¬ÄAzÀ §® ªÉƼÀPÁ°UÉ eÉÆÃgÁV ºÉÆqÉzÀÄ ¨sÁj gÀPÀÛUÁAiÀÄ¥Àr¹zÀgÀÄ.

15. Analysing the above-extracted evidence, the Trial

Court has concluded that PW2 - the complainant was not an

eyewitness to the alleged incident as stated in the complaint.

In her evidence before the Court, the complainant states that

accused No.1 - Srinivas assaulted Shankar with a sickle.

However, in the complaint, it is stated that Srinivas hit

Shankar with an axe. Learned Sessions Judge has treated

this as a major contradiction. Further, analysing the

evidence of PW2, learned Sessions Judge has concluded that

the evidence given by the complainant is leading to suspicion

as it is stated by her that she and her mother-in-law did not

try to rescue the assault on her father-in-law Shankar.

Further, analysing the evidence of the complainant which is

extracted in paragraph 11.6 of the impugned judgment which

is extracted herein, learned Sessions Judge has concluded

that Shanta Kumar and Ravindra who were cited as

eyewitnesses to the incident are also not eyewitnesses.

"«£ÉÆÃzÀ¤UÉ ºÉÆqÉAiÀÄĪÁUÀ ±ÁAvÀPÀĪÀiÁgÀ ªÀÄvÀÄÛ gÀ«ÃAzÀæ §A¢®è, «£ÉÆÃzÀ¤UÉ ºÉÆqÉzÀ £ÀAvÀgÀ £ÀªÀÄä ªÀiÁªÀ¤UÉ ºÉÆqÉzg À ?É JAzÁUÀ «£ÉÆÃzÀ¤UÉ ºÉÆqÉAiÀÄĪÁUÀ £ÀªÀÄä ªÀiÁªÀ PÉðzÁUÀ CªÀ¤UÉ ºÉÆqÉzg À ÀÄ."

16. PW3 who is said to be the neighbour of the

complainant has led evidence and his evidence is analysed by

the Sessions Court. From the evidence of PW3, it is apparent

that PW3 claims that he went to the scene of the incident

after hearing the noise in the house of the complainant. PW3

in his evidence has stated that he has only seen Shankar

sustaining some injuries. From the evidence of PW3, it is

apparent that PW3 is also not an eyewitness to the incident.

17. PW4 - Jeevan is also examined on behalf of the

prosecution and in his evidence he has not supported the

case of the prosecution. Said Jeevan is said to be the person

living in the same lane where the complainant is residing.

From the evidence of PW4 - Jeevan, it is evident that Jeevan

has not seen the alleged incident and Srinivas assaulting

Shankar.

18. PW5 is the panch witness to the spot mahazar

alleged to have been conducted in terms of Ex.P.4. It is the

case of the prosecution that MO1 - axe was seized at the

place of incident. PW5 did not support the case of the

prosecution. In his evidence, he has admitted that MOs

alleged to have been seized viz. axe and clubs do not bear

his signature.

19. Based on this evidence, learned Sessions Judge

has concluded that recovery of MOs is also not established by

the prosecution. Based on this evidence, the learned

Sessions Judge holds that the theory of the prosecution that

PWs 3 and 4 are eyewitnesses to the incident established.

Moreover, learned Sessions Judge analysing the conduct of

the complainant who claims to be present at the time of

accused no.1 assaulting Shankar has concluded that such

conduct on the part of daughter-in-law and her mother-in-

law who did not venture to rescue the victim is un-natural.

20. Analysing the evidence of PW6, the Trial Court

has also noticed an important contradiction wherein PW6

states that accused No.3 caused bite injury to Vinod.

However, PW6 has contradicted the statement by saying that

Vinod is not assaulted.

21. It is the case of the prosecution that deceased

Shankar was also assaulted with clubs. However, the doctor

who has been examined in this case has opined that there is

only one injury on the leg to the victim and he died of

excessive bleeding. The remaining witnesses who have been

examined in support of the prosecution have also not

supported the case of the prosecution. The contradictions

forthcoming in the evidence of PW6 is also extracted in

para.16.1 of the impugned judgment. The said portion of the

evidence reads as under:

DgÉÆæUÀ¼ÀÄ £ÁªÀÅ §gÀĪÀ ºÉÆwÛUÉ PÉÆqÀ° §rUÉ vÉUz É ÀÄPÉÆAqÀÄ ºÉÆÃVzÀÝgÀÄ, £Á£ÀÄ ºÉÆÃzÁUÀ ±ÀAPÀgÀ UÉÆÃrUÉ ºÀwÛ ©¢ÝzÀÝ. £Á£ÀÄ ºÉÆÃzÁUÀ «£ÉÆÃzÀ, ¸ÀĪÀuÁð, zË楢 À , aÃgÁqÀÄwÛzg À ÀÄ, «ÄPÀ̪g À ÄÀ DªÉÄÃ¯É §AzÀgÀÄ.

22. PW 8 - Shanta Kumar who is stated to be the

priest performing puja in the house of the complainant has

also not supported the case of the complainant. He would

state that by the time he entered the scene of offence after

hearing the noise, the accused fled away. In his cross-

examination, he states that when he came to the scene of

the offence, around Shankar the victim, Suvarna, Draupadi

and Vinod were present. He further states these three

persons later told that the accused came and assaulted the

victim. Thus, it is apparent from the evidence of PW8 that

evidence of PW8 hearsay inadmissible evidence.

23. PW8 has denied having given any statement to

the police.

24. PW9 - the witness to the seizure mahazar has

also not supported the case of the prosecution.

25. The Trial Court has also noticed the fact that

Vinod, the brother-in-law of the complainant was involved as

an accused in Sessions Case No.168/2010 and in that case

he has been convicted. The Trial Court has also noticed the

fact that the said case was initiated on the complaint filed by

one of the accused. Under these circumstances, the Trial

Court has prenasalised that the complaint against the

accused is filed as a counterblast to the prosecution initiated

against Vinod in S.C.No.168/2010.

26. By analysing the evidence referred above, the

Trial Court has concluded that there are many loose ends in

the case of the prosecution and evidence led by the

prosecution do not inspire confidence in the mind of the

Court to conclusively hold that the prosecution has proved

the case beyond a reasonable doubt. Giving the benefit of

doubt to the accused, the Trial Court has acquitted the

accused.

27. It is the well-settled position of law that once the

benefit of the doubt is given to the accused based on correct

appreciation of evidence on record and when the accused are

acquitted and the challenge is laid to the acquittal judgment,

the appellate court though competent to re-appreciate the

evidence, cannot lightly interfere with the reasonings of the

Trial Court in giving the benefit of doubt to the accused

unless such conclusion arrived at by the Trial Court is

contrary to the well-established principle of law and is

contrary to the inference emerging from the evidence placed

on record. The prosecution, in this case, is not in a position

to point out the illegality committed by the Sessions Court in

appreciating the evidence on record. Under these

circumstances, this Court is of the opinion that there is no

reason to interfere with the impugned judgment. Hence, the

following:

ORDER

The appeal is dismissed.

The judgment and order dated 17.04.2013 passed by

the Principal Sessions Judge, Bidar in Sessions Case

No.70/2010 is confirmed.

Sd/-

JUDGE

Sd//-

JUDGE

sn/brn