Karnataka High Court
Eshwara vs The State Of Karnataka on 17 March, 2022
Bench: Suraj Govindaraj, J.M.Khazi
-1-
CRL.A No. 100101 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 17TH DAY OF MARCH, 2022
PRESENT
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
AND
THE HON'BLE MR JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO. 100101 OF 2016 (C-)
BETWEEN:
1. ESHWARA
S/O JETTI BASAVARAJAPPA,
AGED ABOUT 42 YEARS,
OCC: DAIRY SECRETARY
2. LAKKAPPA
S/O JETTI BASAVARAJAPPA,
AGED ABOUT 45 YEARS,
OCC: AGRICULTURE
3. SANGANA BASAPPA
S/O KADLENNI BASAPPA,
AGED ABOUT 36 YEARS,
OCC:AGRICULTURE
4. NAGARAJ
S/O JETTI BASAVARAJAPPA,
AGED ABOUT 55 YEARS,
OCC: AGRICULTURE
5. VEERAPPA
S/O KADLENNI BASAPPA,
AGED ABOUT 42 YEARS,
OCC: AGRICULTURE
-2-
CRL.A No. 100101 of 2016
6. MANJAPPA
S/O KADLENNI BASAPPA,
AGED ABOUT 37 YEARS,
OCC: AGRICULTURE
7. BASAVARAJA
S/O KADLENNI BASAPPA,
AGED ABOUT 37 YEARS,
OCC: AGRICULTURE
8. NAGARAJAPPA @ RAJAPPA
S/O KADLENNI SHIVAPPA,
AGED ABOUT 32 YEARS,
OCC: AGRICULTURE
9. KADLENNI SHIVAPPA
S/O SANGANA BASAPPA,
AGED ABOUT 57 YEARS,
OCC: AGRICULTURE
ALL ARE RESIDENTS OF
R/O: HOLALU VILLAGE,
TQ: HUVINAHADAGALLI,
DIST: BALLARI.
... APPELLANTS
(BY SHRI.C.H.JADHAV, SENIOR COUNSEL FOR
SHRI NEELENDRA D.GUNDE, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
BY HIREHADAGALI POLICE,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
DHARWAD.
... RESPONDENT
(BY SRI.PRASHANTH MOGALI, HCGP)
-3-
CRL.A No. 100101 of 2016
THIS APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C.
SEEKING TO CALL FOR THE RELEVANT RECORDS AND ALLOW THIS
CRIMINAL APPEAL BY SETTING ASIDE THE JUDGMENT AND ORDER
OF CONVICTION AND SENTENCE DATED 28.03.2016 PASSED IN
S.C.NO.70/2011 BY THE III ADDL. DIST. AND SESSIONS JUDGE-
BALLARI (SITTING AT HOSAPETE) THEREBY CONVICTING THE
APPELLANT FOR THE O/P/U/S.307 OF IPC AND SENTENCING HIM TO
SUFFER SIMPLE IMPRISONMENT FOR A PERIOD OF 5 YEARS AND TO
PAY A FINE OF RS.5,000/- IN DEFAULT TO SUFFER SIMPLE
IMPRISONMENT FOR 6 MONTHS, FOR O/P/U/S.148 OF IPC AND
SENTENCING HIM TO SUFFER SIMPLE IMPRISONMENT FOR A PERIOD
OF 1 YEARS AND TO PAY A FINE OF RS.500/- IN DEFAULT TO
SUFFER SIMPLE IMPRISONMENT FOR 10 DAYS.
THIS APPEAL COMING ON FOR FINAL HEARING ON 18.12.2021
AND THE SAME HAVING BEEN HEARD AND RESERVED FOR
PRONOUNCEMENT OF JUDGEMENT, THIS DAY, SURAJ
GOVINDARAJ J., DELIVERED THE FOLLOWING:
JUDGMENT
1. The accused are before this Court aggrieved by the
judgment of conviction and order of sentences
passed by III Addl. District and Sessions Judge,
Ballari, sitting at Hospete, dated 28.03.2016 in
S.C.No.70/2011. By way of the said judgment,
accused No.1-Eshwar, accused No.3-Lakappa,
accused No.4-Sangana Basappa, accused No.5-
Nagaraj, accused No.8-Veerappa, accused No.9-
Manjappa, accused No.10-Basavaraj, accused No.11-
CRL.A No. 100101 of 2016
Nagarajappa and accused No.12-Kadlenni Shivappa
were convicted for offences punishable under
Sections 148 and 307 read with Section 149 of IPC
and they were acquitted for offences punishable
under Sections 143, 147, 323, 324, 326, 504, 506
read with Section 149 of IPC. They are sentenced to
undergo simple imprisonment for five years for the
offence punishable under Section 307 of IPC and to
pay a fine of Rs.5,000/- each and in default thereof
to undergo simple imprisonment for six months.
Further, they are to undergo simple imprisonment for
one year for the offences punishable under Section
148 of the IPC and to pay a fine of Rs.500/- each, in
default thereof to undergo simple imprisonment for
10 days. The sentences to run concurrently.
2. The case of the prosecution is that on 25.07.2010 at
about 6 p.m., accused No.1-Eshwar, accused No.2-
Kamaraj, accused No.3-Lakappa, accused No.8-
Veerappa and accused No.9-Manjappa had picked up
CRL.A No. 100101 of 2016
a quarrel with the complainant and his group
members in front of the milk dairy of Holalu village
where accused No.1-Eshwar, without any basis,
alleged that the PW.2/CW.2-Kantesh was mixing
water in the milk at the time of supply to the dairy in
furtherance of which there was an altercation.
Accused No.1-Eshwar, accused No.2-Kamaraj,
accused No.3-Lakappa, accused No.8-Veerappa and
accused No.9-Manjappa assaulted the complainant
and his group members with hands and stones,
pushed the complainant PW.1/CW.1-Basavarajappa
into the gutter in front of the dairy. At that time two
elders intervened and pacified the quarrel, however,
while leaving from that place the accused is stated to
have threatened the complainant and his group
members.
3. It is alleged that thereafter at 10.30 p.m., on the
same day, when the PW.1/complainant-
Basavarajappa and PW.2/CW.2-Kantesh,
CRL.A No. 100101 of 2016
PW.4/CW.3-Kariappa, PW.3/CW.4-Rudrappa and
PW.5/CW.5-Girish were going to their grain
Threshing yard in front of the house of accused No.7-
Kadlenni Basappa, the accused formed themselves
into an unlawful assembly, with an object of
eliminating the complainant and his group members
on account of the earlier ill-will in front of the milk
dairy, assaulted the complainant and his group with
stones, sticks, axe and verbally abused, humiliated
the complainant and his group, threatened to cause
their death in pursuance of which simple injury was
caused to PW.1/CW.1-Basavarajappa, PW.5/CW.5-
Girish, PW.6/CW.6-Bullamma, the mother of
PW.1/CW.1-Basavarajappa, who had come to their
rescue as also assaulted PW.7/CW.7-Shobhamma,
the wife of the PW.1/CW.1-Basavarajappa, who had
also come to their rescue was grievously hurt.
4. In furtherance of the same, a complaint for the
offences punishable under Sections 143, 147, 148,
CRL.A No. 100101 of 2016
323, 324, 326, 504, 506, 307 read with Section 147
of the IPC had been registered in Cr.No.42/2010 by
the Hire Hadagali Police Station, Ballari.
5. Upon investigation having been completed, a charge-
sheet in No.32/2010 had been filed alleging that
offences under the aforesaid provisions had been
committed by the accused.
6. Upon hearing the accused, the case was committed
to the Prl. District and Sessions Judge, Ballari, and
made over to the Fast Track Court, III, Hosapete.
The accused were secured and were represented by
their advocate before the Fast Track Court.
Thereafter, the case was transferred to the III Addl.
District and Sessions Judge, sitting at Hosapete. The
accused were once again secured since they had
been released on bail and after hearing the accused
and the prosecution, charges were framed for the
aforesaid offences read over and explained to the
CRL.A No. 100101 of 2016
accused in the language known to them. The
accused pleaded not guilty and claimed to be tried.
7. The prosecution in order to prove its case in all
examined 15 witnesses PWs-1 to 15, got marked 14
documents as Ex.P.1 to Ex.P.14 and 13 material
objects M.Os.1 to 13 in support of its case. The
defence marked Ex.D.1 to Ex.D.4 in support of their
cases.
8. Upon closure of evidence, the incriminating material
against the accused was put across to them and each
of their statement under Section 313 of the Cr.p.C.
has been recorded. The accused denied the evidence
led by the prosecution, they chose not to place any
further evidence but however produced copies of the
charge-sheet, complaint in Cr.No.72/1998 and an
application which had been filed before the JMFC,
Hadagali and the RTI Officer.
CRL.A No. 100101 of 2016
9. After hearing both sides, the trial Court passed the
above order of conviction and sentence. It is
aggrieved by the same that the appellants are before
this Court.
10. Shri C.H.Jadhav, learned Senior Counsel appearing
for the appellants instructed by Shri Neelendra
R.Gunde, learned counsel submits that;
10.1.The order of conviction passed is completely
perverse and not maintainable in law or facts.
There are no offences which are made out
against the accused;
10.2.In the original complaint as filed, there is no
allegations as regards any injury having been
caused to PW.7/CW.7-Shobhamma, wife of the
complainant. It is only later that the said
aspect had been brought up during the course
of trial;
- 10 -
CRL.A No. 100101 of 2016
10.3.The initial complaint had been filed insofar as
Section 307 of the IPC when the complaint was
filed concerning them, it did not concern or
include PW.7/CW.7-Shobhamma.
10.4.The trial Court having acquitted the accused in
so far as the allegations made in respect of the
other injured complainants but convicting the
accused as regards the alleged injury caused to
PW.7/CW.7-Shobhamma under Section 307 of
the IPC cannot be countenanced in law,
10.5.The incident having occurred in front of the
house of accused No.7-Kadlenni Basappa, the
complainants having explained as to why they
came to that spot at that time of the night, the
grain Threshing yard is normally used only after
harvest and the incident having occurred in the
month of July during the rainy season, there
was no harvest which required the
complainants to go to the grain Threshing yard.
- 11 -
CRL.A No. 100101 of 2016
Therefore, the entire story of the prosecution is
false.
10.6.It is the complainants who had come to the
house of the accused and assaulted them, that
the complainants who are the aggressors as
regards which Cr.No.41/2010 has been
registered by Hirehadagali police station. All
the prosecution witnesses are related witnesses
and there are no independent witnesses,
10.7.The prosecution has withheld independent
witnesses though available. Hence, adverse
inference would have to be drawn. The case is
created by the Investigation Officer to support
the prosecution story. There is no credible
evidence on record.
10.8.There is delay in the F.I.R being filed as also
received by the Court. This delay has been
- 12 -
CRL.A No. 100101 of 2016
occasioned by the Investigation Officer only to
shape the case of the prosecution,
10.9.That the complainants had formed themselves
into an unlawful assembly and had come to the
house of the accused and assaulted the
accused. In this connection, he submits that
the accused have lodged a complaint in
Cr.No.41/2010 on which basis S.C.No.89/2011
was registered. accused No.4-Sangana
Basappa accused No.5-Nagaraj and accused
No.12-Kadlenni Shivappa had not been named
in the complaint but have been added in the
charge-sheet. There is no basis for them being
added. PW.6/CW.6-Bullamma and PW.7/CW.7-
Shobhamma, admittedly were not in the spot
when the altercation happened. They came
half-an-hour later, which statement cannot be
believed since it is not anybody's case that the
altercation lasted for half-an-hour.
- 13 -
CRL.A No. 100101 of 2016
10.10. He relies upon the decision of this Court in
STATE VS. SHEENAPPA GOWDA AND
OTHERS reported in 2011 (4) KCCR 2759,
more particularly, paragraph 11 thereof which is
reproduced hereunder for easy reference:
"11. Therefore, the question for
determination is limited to find out whether the
said injury No.2 is proved to be a grievous injury
sustained by PW.4. It is well settled that in
criminal cases, the burden of proving the guilt of
the accused is always on the prosecution and
that burden would not shift unless there is a
presumption or defence as enumerated in the
Indian Penal Code is taken by the accused. In
this case, the defence taken by the accused is
one of denial. It is clear from the evidence of
PW.1 that he has given description of injury on
physical' examination of PW.4 and has come to
the conclusion that there was fracture of the
middle phalanx. It is well settled that when the
prosecution alleges that grievous injury has been
caused, it is necessary for the prosecution to
prove the same beyond reasonable doubt. The
evidence of PW.1 would only show that there was
injury as described in the wound certificate -
Ex.P2. When PW.1 suspected such fracture, he
ought to have referred the injured - PW.4 for
taking X-ray to confirm his finding that there is
fracture of middle phalanx. It is now well settled
hat unless the prosecution produces the X-ray for
confirmation of fracture opined by the Doctor on
medical examination clinically, it cannot be said
that the accused have caused grievous injury of
fracture. It is true that in the cross-examination
- 14 -
CRL.A No. 100101 of 2016
of PW.1, the learned Counsel appearing for the
accused has not disputed the nature of injuries
spoken to by PW.1. However, he same would not
dispense with the production the X-ray by the
prosecution to prove beyond reasonable
doubt that the injured had sustained fracture of
middle phalanx, which is an opinion given by
PW.1 Doctor only on clinical examination of
PW.4, the injured. Therefore, it is clear that the
finding of the learned Sessions Judge holding
that the prosecution has failed to prove that the
accused Nos.1 to 3 and 5 have committed the
offence punishable under Section 326 of
I.P.C. and the offence committed by them
falls within the ambit of Section 324 of I.P.C. is
justified."
10.11. By relying on the above judgment, he submits
that, it was required that an X-ray had to be
produced and marked in evidence to establish
the fracture which had been caused. The non-
production of the X-ray goes to the root of the
matter. The mere production of wound
certificate would not be sufficient.
11. Shri Prashanth Mogali, learned High Court
Government Pleader supports the case of the
prosecution. By referring to the evidence of the
- 15 -
CRL.A No. 100101 of 2016
Investigation Officer, he submits that the
investigation has been carried out properly, the
wound certificates establish the injuries which have
been caused, the injury caused to PW.7/CW.7-
Shobhamma being grievous in nature, the sticks,
stones etc., which had been used were so used with
an intention to cause death of the complainant and
his family members. It is only fortunate that no
death has occurred. The attempt made by the
accused was to cause such death. Therefore, the
trial Court has rightly convicted the accused for
offences punishable under Section 307 of the IPC and
this Court would not be required to intercede in the
matter.
12. It is in the above background that we are required to
re-appreciate the evidence on record to ascertain if
the prosecution has been able to establish the guilt
of the accused, the offences that they were charged
and punished with.
- 16 -
CRL.A No. 100101 of 2016
13. Before we advert to the evidence on record, there is
another aspect that would be required to be dealt by
us, inasmuch as the above appeal arises out of
Cr.No.42/2010 in which charge-sheet No.32/2010
had been filed resulting in the proceedings in
S.C.No.70/2011 from which the above appeal in
Crl.A.No.100101/2016 has been filed. There is
another complaint in Cr.No.41/2010 which had been
lodged on 25.07.2010 in which charge-sheet
No.4/2011 had been submitted resulting in
proceedings in S.C.No.89/2011 from which the
appeal in Crl.A.No.100106/2016 is before us.
Cr.No.41/2010 and Cr.No.42/2010 are stated to be
complaint and a counter complaint as regards the
same incident which occurred on the same day. In
Cr.No.41/2010 it is alleged that the incident occurred
at 12 in the mid night, while in Cr. No.42/2010 it is
alleged that the incident occurred around 10.30 p.m.
on 25.07.2010. This aspect of whether the event in
- 17 -
CRL.A No. 100101 of 2016
question in the present matter occurred at 12 mid
night or at 10.30 p.m. would have to be determined,
in order to arrive at a conclusion whether the present
matter is a complaint or a counter complaint.
14. PW.1/CW.1-Basavarajappa whose evidence was
recorded on 30.10.2013 has stated that;
14.1. He knows the accused persons. PW.2/CW.2-
Kantesh is his son, PW.4/CW.3-Kariyappa is his
younger brother, PW.3/CW.4-Rudrappa is also
his younger brother, PW.5/CW.5-Girish is his
son, PW.6/CW.6-Bullamma is his mother,
PW.7/CW.7-Shobhamma is his wife.
14.2. He has stated that on 25.07.2010 at about 6
p.m., there was an altercation near the milk
dairy of his village when accused No.1 Eshwara,
who was the Secretary of the Milk Dairy raised
a quarrel with his son PW.2/CW.2-Kantesh that
he had mixed water in the milk and in this
- 18 -
CRL.A No. 100101 of 2016
regard, accused No.1-Eshwar, accused No.3-
Lakappa, accused No.2-Kamaraj, accused No.8-
Veerappa and accused No.9-Manjappa had
assaulted his son with hands. while he was
going on the road from his land, seeing the
assault on his son he went there and asked the
accused the reason for assaulting his son, at
which point the said 5 accused assaulted him
on his back with stones and pushed him into a
drainage, at which time PW.8/CW.8-Ashok and
CW.9-Manjappa had pacified the quarrel by
assuring that they would conduct a panchayath
to resolve the issue.
14.3. He has further stated that at 10.30 p.m. on the
same day, when he, PW.5/CW.5-Girish,
PW.2/CW.2-Kantesh along with PW.4/CW.3-
Kariyappa and PW.3/CW.4-Rudrappa were
going to their grain Threshing yard and were
passing by the house of Shantappanavara
- 19 -
CRL.A No. 100101 of 2016
Basappa, the accused persons armed with
clubs, axe and stones attacked them, accused
No.9-Manjappa assaulted on the head and left
shoulder of PW.2/CW.2-Kantesh with club and
kicked his testicles, accused No.3-Lakappa
assaulted on the head of PW.4/CW.3-Kariyappa
with an axe, accused No.11 Nagarajappa @
Rajappa assaulted the right waist of
PW.4/CW.3-Kariyappa with a club, accused
No.1 Eshwara kicked the testicles of
PW.4/CW.3-Kariyappa, accused No.8 Veerappa
Kadlenni assaulted on the back portion of the
head of PW.3/CW.4-Rudrappa with a club
and also assaulted left elbow of PW.3/CW.4-
Rudrappa, accused No.10-Basavaraj assaulted
on the back portion of the head of PW.5/
CW.5-Girish, when he fell down, accused
No.10-Basavaraj assaulted him with his left
knee on the left chest of PW.5/CW.5-Girish,
- 20 -
CRL.A No. 100101 of 2016
accused No.5 Nagaraja Jetti had beaten the
right shoulder of PW.5/CW.5-Girish.
14.4. At that time, his wife PW.7/CW.7-Shobhamma
and mother PW.6/CW.6-Bullamma had come
there. When accused No.10-Basavaraj
assaulted PW.7/CW.7-Shobhamma on her hand
with a club, when her hand got fractured,
thereafter he assaulted all over the body of his
wife with the club, accused No.2 - Kamaraja @
Honnappa Jetti and accused No.4 Sangana
Basappa assaulted on the waist of his mother
PW.6/CW.6-Bullamma with stones, accused
No.7 Kadlenni Basavaraja had assaulted the
back of the complainant with his hands.
14.5. CW.10-Virupakshappa, CW.11-Shivappa, CW.9-
Manjapppa and PW.8/CW.8-Ashok who came to
the spot, snatched the stones, clubs and axe
from the accused and had thrown the said
weapons to the ground and pacified the quarrel.
- 21 -
CRL.A No. 100101 of 2016
14.6. It is on this basis that a complaint had been
lodged that the accused persons assaulted the
complainant and others with an intention to
murder them.
14.7. He has stated that the said CW.11-Shivappa,
CW.9-Manjapppa, CW.10-Virupakshappa and
PW.8/CW.8-Ashok had sent his brothers
PW.4/CW.3-Kariyappa, PW.3/CW.4-Rudrappa
and his sons PW.5/CW.5-Girish and
PW.2/CW.2-Kantesh as also PW.6/CW.6-
Bullamma and PW.7/CW.7-Shobhamma went
to Haveri Government Hospital for treatment at
about 11.15 p.m. He has further stated that
Muddannavara Bheemanagoudar,
Devendrappa, Nagappa, Rajappa had called him
to conduct a panchayath and instructed him not
to lodge a police complaint. However, since the
accused persons went to the police station to
lodge a complaint against him and his family
- 22 -
CRL.A No. 100101 of 2016
members, he also went to the police outpost at
Holalu village and lodged the complaint against
the accused persons.
14.8. He has identified his complaint as per Ex.P.1
and his signature as Ex.P.1 (a). He has
identified the axe with wooden handle as
M.O.1, 5 wooden clubs as M.Os.2 to 6 and 4
stones as M.Os.7 to 10 which had been used to
assault him at 6 p.m. in front of the milk dairy
on that day.
14.9. He has identified the 3 stones used to assault
his mother PW.6/CW.6-Bullamma at 10.30 p.m.
which was marked as M.Os.11 to 13.
14.10. During the course of cross-examination, he has
stated that he had orally lodged a complaint at
2'0 clock at Holalu outpost, which was reduced
in writing by the police, he has stated
that he was with the panchayathdaars
- 23 -
CRL.A No. 100101 of 2016
namely Muddannavar Bheemanagoudar,
Nagaraja, Rajappa and Devendrappa till 2 a.m.
(night).
14.11. He admits that there is a Government Hospital
at Hirehadagali village which is at a distance of
14 kms from Holalu village. He has also
admitted that there is another Government
Hospital at Guttal village which is at a distance
of 10 kms from Holalu village and
there is another Government Hospital at Mylara
village which is about 3 kms from Holalu
village. He has further admitted that there is
another Government Hospital at Huvinahadagali
town which is about 25 kms from Holalu village,
that the Government Hospital at Haveri is about
35 kms from Holalu village.
14.12. He has admitted that the distance of the Grain
Threshing yard of PW.8/CW.8-Ashok, CW.11-
Shivappa, CW.10-Virupakshappa and CW.9-
- 24 -
CRL.A No. 100101 of 2016
Manjapppa to be at a distance of about 200 ft.
from the place of incident.
14.13. Though he states that PW.8/CW.8-Ashok has a
house in his grain Threshing yard, he states
that the same is used as cattle shed and all the
others have their houses in Holalu village. He
has stated that the house of PW.8/CW.8-Ashok
situated in the village is about 300 to 400 ft.
from his grain Threshing yard. The house of
CW.9-Manjapppa is opposite to the old bus
stand which is at a distance of 200 ft from the
house of accused No.7-Kadlenni Basappa. He
has admitted that the road in front of Kadlenni
Basavaraja's house connects to Darga road
which proceeds North and joins Hadagali road
and his land is at a distance of 400 ft. after
passing Hadagali road. He has however
admitted that he can reach his land from the
- 25 -
CRL.A No. 100101 of 2016
bus stand going North on Darga road and
joining Hadagali road.
14.14. He has denied that there is a case in
S.C.No.89/2011 which is pending against him,
his sons and three brothers. He has further
denied that the said case pertains to the
murder of Kamaraj(accused No.2) and injuries
caused to several others.
14.15. As regards the incident that occurred in front of
the dairy, he has stated that accused No.1-
Eshwar had beaten on the back of his son
PW.2/CW.2-Kantesh by hands, accused No.2-
Kamaraj had beaten on the back of his son by
hands, accused No.3 Lakkappa, accused No.8
Veerappa and accused No.9 Manjappa had also
beaten on the back of PW.2/CW.2-Kantesh by
hands, accused No.2 Kamaraja, accused No.3
Lakkappa, accused No.8 Veerappa, accused
No.9 Manjappa had also assaulted him on his
- 26 -
CRL.A No. 100101 of 2016
back and however, his shirt did not get soiled
when he was pushed into the drainage since
there was no dirty water in the drainage. He
has stated that there is no ill-will between him
and the accused persons prior to the
altercation. He has denied that there was no
assault at the milk dairy. He has stated that in
his house every day one or two male persons
used to sleep and the other male persons used
to sleep in the grain Threshing yard. His
younger brothers PW.4/CW.3-Kariyappa and
PW.3/CW.4-Rudrappa were married prior to the
year 2010 and their wives were living with
them, his younger brother Ramesh was not
married in the year 2010 and his sons were
also not married, witness corrects the
statement by stating that his brother Ramesh
was married prior to the year 2010 and his wife
was also living with him.
- 27 -
CRL.A No. 100101 of 2016
14.16. He has stated that all of them did not go
together to Grain Threshing yard, PW.2/CW.2-
Kantesh went first followed by the complainant
PW.1/ CW.1 - Basavarajappa, PW.4/CW.3-
Kariyappa, PW.3/CW.4-Rudrappa and
PW.5/CW.5-Girish. He has stated that at that
time the accused had once again asked why
they were mixing water in the milk and started
quarrel, when he had informed that they are
not mixing water in the milk. He has again
reiterated the manner in which the assault was
made by the accused.
14.17. He has stated about he having taken treatment
at Government Hospital, Holalu itself. He did
not say anything about the incident to the
doctor, he does not know how accused No.2
Kamaraja died in the incident or about accused
No.3 Lakkappa, accused No.8 Veerappa,
accused No.9 Manjappa and accused No.10
- 28 -
CRL.A No. 100101 of 2016
Basavaraja having sustained injuries in the
altercation.
14.18. He has denied that at about 11.30 p.m., he, his
sons and 3 brothers trespassed into the house
of accused No.7-Kadlenni Basappa and had a
quarrel. He has denied that in the said house
of accused No.7- Kadlenni Basappa, he and the
others had assaulted accused No.3 Lakkappa,
accused No.8 Veerappa, accused No.9
Manjappa, accused No.10 Basavaraja and
accused No.2 Kamaraja, with clubs, stones,
axe. He has denied that his mother and wife
came later at the time of altercation and in the
friction of that altercation, they fell down and
sustained injuries. He has denied that the
complaint is a false one and filed on account of
political ill will.
15. P.W.2/CW.2-Kantesh in his deposition recorded on
06.11.2013 has;
- 29 -
CRL.A No. 100101 of 2016
15.1.Described the relationship between the various
witnesses and reiterated what has been stated
by PW.1/CW.1-Basavarajappa, he has also
described the manner in which the assault
occurred which is more or less identical to what
PW.1/CW.1-Basavarajappa has said.
15.2.He has also spoken about the intervention of
CW.11-Shivappa, CW.10-Virupakshappa and
PW.8/CW.8-Ashok to pacify the quarrel and
sending them to the Haveri hospital.
15.3.In the cross-examination, he has stated that he
was admitted as an inpatient for 5 days in the
Government Hospital at Haveri. He has stated
that at the time when the altercation happened
at the dairy, there were other persons also
sitting near the dairy. He has stated that they
are having 40 cows and they are living in joint
family. He has further stated that there are
- 30 -
CRL.A No. 100101 of 2016
standing crops of maize in their land aged
about 60 days.
15.4.He has denied that he had quarreled with
accused No.1-Eshwar when he asked him not to
supply milk by mixing the water. He has also
denied that neither he nor his father were
assaulted near the dairy. He has stated that
though he had given the name of accused
No.6-Jetti Basavarajappa to the police, he did
not abuse or assault but was a silent spectator.
He has stated that the police persons who came
to the spot and took them to the hospital. He
does not know the name of the said police
persons. He has stated that they reached the
hospital at about 11.45 p.m. He states that he
does not know how accused No.2 Kamaraja
died or accused No.3-Lakkappa, accused No.8-
Veerappa, accused No.9-Manjappa and accused
No.10-Basavaraja sustained injuries.
- 31 -
CRL.A No. 100101 of 2016
16. PW.3/CW.4-Rudrappa in his evidence recorded on
06.11.2013 has stated that:
16.1.PW.1/CW.1-Basavarajappa had informed about
the quarrel that had taken place on 25.07.2010
at 6 p.m. near the milk dairy and how accused
No.1-Eshwar and other 4 persons assaulted
PW.1/CW.1-Basavarajappa and PW.2/CW.2-
Kantesh.
16.2.He has also stated about how they were going
towards the Grain Threshing yard and the
assault in front of Shantappa's house by
describing more or less the same as what was
described by PW.1/CW.1-Basavarajappa.
16.3.In the cross-examination, he has stated that
they were going together to the grain Threshing
yard but were going one after the other with a
distance of 15 to 20 steps between them.
PW.2/CW.2-Kantesh was going ahead, the
- 32 -
CRL.A No. 100101 of 2016
accused were standing near the grain Threshing
yard of Kundugol and simultaneously assaulted.
He has stated that the quarrel lasted for half-
an-hour. He has denied that his mother
PW.6/CW.6-Bullamma was not at the place
because she was aged about 75 years and
requires assistance to walk.
16.4.He states that the neighbour did not come to
stop the quarrel, PW.8/CW.8-Ashok, CW.9-
Manjappa and others came there. PW.8/CW.8-
Ashok's house is at a distance of 11 length of
pipe from the spot (one length of
pipe being equal to 20 ft.) He has stated that
he was also hospitalized but does not
remember for how many days. He has
admitted that there is a Sessions Case pending
before the Court against him, his brothers and
certain others for having caused the murder of
accused No.2-Kamaraj and injuries to accused
- 33 -
CRL.A No. 100101 of 2016
No.3 Lakappa, accused No.8 Veerappa, accused
No.9 Manjappa and accused No.10-Basavaraj.
He has denied that the complainant and the
accused persons are not in good terms for 15
years.
17. PW.4/CW.3-Kariyappa in his evidence recorded on
08.01.2014 has also stated;
17.1.About the relationship between the various
witnesses and how the incident occurred in the
same manner as that stated by PW.1/CW.1-
Basavarajappa, PW.2/CW.2-Kantesh and
PW.3/CW.4-Rudrappa.
17.2.In the cross-examination, he has stated that
the police took him and the others to
Government Hospital, Haveri. He has
reiterated how the assault happened. He has
denied that there was any other quarrel in front
of the house of accused No.7-Kadlenni
- 34 -
CRL.A No. 100101 of 2016
Basavaraja except the quarrel complained of.
He denied that they were not in good terms
with accused persons since 1998. He has
stated that there are 50 persons who had
gathered at the spot of the quarrel. The police
persons also came at the time when the quarrel
was taking place and took then to Government
Hospital, Haveri, for treatment and they were
there in the said hospital for treatment as an
inpatient for 3 days. They had not informed
the doctor about who assaulted them. He has
admitted that a Sessions Case is pending
before the Court for committing the murder of
Kamaraja and assaulting others. He has denied
rest of the suggestions.
18. PW.5/CW.5-Girish whose evidence was recorded on
08.01.2014 has deposed about
18.1.How when his younger brother PW.2/CW.2-
Kantesh had gone to the dairy on 25.07.2010
- 35 -
CRL.A No. 100101 of 2016
at 6 p.m., accused No.1-Eshwar and others
having assaulted his brother and father. He
has also described how the incident occurred at
10.30 p.m and the accused had assaulted
them, more or less in the same manner as
stated by PW.1/CW.1-Basavarajappa. During
the course of cross-examination, he has stated
that the police took them to the Government
Hospital, Haveri and he was there for 4 days as
an inpatient. He has denied rest of the
suggestions including the suggestion that there
was old enmity since 1998 against the accused.
19. PW.6/CW.6-Bullamma has stated in her evidence
recorded on 24.03.2014 about the relationship
between the witnesses and how the incident
happened in a shorter version of what is deposed by
PW.1/CW.1-Basavarajappa. During the course of
cross-examination, she has answered about the
incident that took place in the milk dairy and the
- 36 -
CRL.A No. 100101 of 2016
incident that took place in front of the house of
accused No.7-Kadlenni Basavaraja. She has denied
that no quarrel happened. She heard the commotion
and went to the spot. She cannot say how many
people had gathered at the time of the quarrel. She
denied that her sons and grandsons had gone to the
house of accused No.2-Kamaraj and while they were
trying to assault accused No.2-Kamaraj they received
blows from their own people and she and her
daughter-in-law received blows from her own people
when they tried to pacify the quarrel.
20. PW.7/CW.7-Shobhamma in her deposition recorded
on 24.03.2014 stated about her relationship with the
other witnesses. She has deposed about the incident
before the dairy, she has also deposed about the
incident in the evening near the house of Shanthappa
and of accused No.12-Kadlenni Shivappa having
assaulted on her left hand with a club resulting in
fracture as also he having assaulted all parts of the
- 37 -
CRL.A No. 100101 of 2016
body with the club. She has also spoken about the
assaults on the other witnesses.
21. In the cross-examination on 07.04.2014, she has
denied that there was no assault on her son or her
husband near the milk dairy. She has stated that
after hearing the sounds of the quarrel, she and her
mother-in-law went to the spot of the quarrel. She
has stated about the various assaults committed by
each of the accused on the witnesses. She has
stated of accused No.2-Kamaraj having assaulted
the waist of PW.6/CW.6-Bullamma with stone as also
of accused No.4-Sangana Basappa assaulting the
waist of PW.6/CW.6-Bullamma. But, she cannot say
on which side of the waist. She further states that
accused No.4-Sangana Basappa had pushed her.
She has stated about accused No.12-Kadlenni
Shivappa having assaulted on her left wrist using a
club resulting in the fracture as also of him having
assaulted in the front portion and back portion of both
- 38 -
CRL.A No. 100101 of 2016
thighs with a club as also on both the hips. She
is unable to say how many blows she received. She
has stated about police having come to the spot and
taking all the injured persons to the police station
and thereafter to the Government Hospital at Haveri
for treatment. She states that they were in the
hospital for 8 days. She has denied that her
husband, sons and brothers of her husband went to
the house of accused No.2-Kamaraj and assaulted
him and murdered him as also caused injuries to
others.
22. PW.8/CW.8-Ashok in his deposition recorded on
12.08.2015 has admitted knowing the complainant
and the witnesses. He has stated that;
22.1.It is accused No.1-Eshwar who is the Secretary
of the dairy. He has also spoken about the
incident at the dairy on 25.07.2010, about
himself and PW.9/CW.13-Lakappa having
pacified the fight.
- 39 -
CRL.A No. 100101 of 2016
22.2. He has also spoken of the incident at 10:30
p.m. on that night when the accused is stated
to have assaulted PW.1/CW.1-Basavarajappa
and others in front of the house of accused
No.7-Kadlenni Basappa with sticks and stones,
that he along with CW.10-Virupakshappa and
CW.11-Shivappa pacified that fight. At that
time, the accused threw the axe but
threatened that the complainants were spared
on that day but they will not let them live.
22.3.At 11 p.m., he has stated that the police took
the injured to Haveri hospital.
22.4.He has stated that on 26.07.2010 between 3.00
to 3.45 p.m., police came near the dairy, drew
up a panchnama after he and others showed
them the spot and seized the stones. He says
thereafter between 5.00 to 5.45 p.m. near the
house of Basavarajappa Kadlenni(accused
No.7), the scene of occurrence was shown
- 40 -
CRL.A No. 100101 of 2016
where they seized 5 sticks, 3 stones and 1 axe.
A panchnama was made at the spot. He
has identified the panchnama carried out at the
dairy circle as Ex.P.2 and his signature as
Ex.P.2 (a). He has identified the panchnama at
the house of Basavarajappa Kadlenni(accused
No.7) which is marked as Ex.P.3 and his
signature was marked as Ex.P.3(a) and the
material objects namely, the stones, sticks etc.,
were marked as M.Os.1 to 13.
22.5.During the course of cross-examination, he has
admitted that he is an accused in
C.C.No.128/1999 but he does not know the
accused number. He states that CW.10-
Virupakshappa and CW.11-Shivappa from his
sect and PW.13/CW.12-Basvana Gouda is his
brother. PW.9/CW.13-Lakappa belongs to his
sect. He states that he does not know whether
CW.10-Virupakshappa, CW.11-Shivappa,
- 41 -
CRL.A No. 100101 of 2016
PW.13/CW.12-Basvana Gouda and
PW.9/CW.13-Lakappa are also accused in the
aforesaid case.
22.6.He states that he saw PW.2/CW.2-Kantesh on
his way to his dairy. The fight started at 6 p.m.
when accused No.1-Eshwar hit the first blow.
Thereafter, rest of the accused started to fight.
The fight lasted for 20 minutes. When the
complainant came, thereafter continued for
another 30 minutes.
22.7. He along with certain others had stopped the
fight stating that the panchayath could be
conducted. However, no panchayath was
conducted.
22.8.He has admitted that there is a police outpost
at 500 metres from the milk dairy, a bus stand
300 metres from the dairy.
- 42 -
CRL.A No. 100101 of 2016
22.9.He states that it had just rained that night.
There was no harvest made and no functions
had been celebrated. He has generally spoken
of the locations of the houses of the accused
and the complainants. He has stated that
second fight started at 10:30 p.m. on a Friday
night. CW.10-Virupakshappa and CW.11-
Shivappa were with him and CW.9-Manjapppa
had not come at that time. He has stated
about the incident which occurred at 10:30
p.m. and the assault committed by the accused
and the complainants. He has stated that
PW.1/CW.1-Basavarajappa, PW.2/CW.2-
Kantesh and PW.3/CW.4-Rudrappa as also
PW.4/CW.3-Kariyappa had suffered bleeding
injuries on their head and blood had fallen on
the shirts and on the ground. He has shown
the spot to the police where the blood had
fallen. He has stated that since it had rained
- 43 -
CRL.A No. 100101 of 2016
for three hours in the evening, it might have
got cleared.
22.10. He had stated about PW.6/CW.6-Bullamma and
PW.7/CW.7-Shobhamma having come after 30
minutes after the fight started. He stated that
the fight lasted for 30 minutes. He had called
the ambulance from Haveri Hospital though
there were other hospitals, but they did not
have any facilities. He states that he had
informed the police about the occurrence of the
event at 11:00 p.m. that night. Thereafter, the
injured were taken to the hospital.
22.11. He knows about accused No.2-Kamaraj having
expired. However, he does not know that he
was murdered. He does not know about the
injuries being caused to accused No.3-Lakappa,
accused No.8-Veerappa, accused No.9-
Manjappa and accused No.10-Basavaraj. He
has denied that the complainant and his family
- 44 -
CRL.A No. 100101 of 2016
members had gone to accused No.7-Kadlenni
Basappa's house and assaulted him at 11 p.m.
on the same day. He denies that during that
time, the complainant and his family members
had got hit by their own group. He states that
he cannot identify as to which accused used
which club/wooden stick.
23. PW.9/CW.13-Lakkappa in his deposition recorded
on 12.08.2015 has stated that he knows PW.8/CW.8-
Ashok as also PW.13/CW.12-Basvana Gouda. He has
stated that he was called to the milk dairy on
25.07.2010 for conducting a mahazar which was
conducted between 3.00 to 3.45 p.m. He has stated
that the police had seized a stone and axe from the
said spot. At the time, PW.8/CW.8-Ashok was also
present. He admits having signed the mahazar. He
identifies the mahazar as per Ex.P.2 and his
signature as per Ex.P.2 (b). He has also identified
the panchnama at the scene of occurrence which has
- 45 -
CRL.A No. 100101 of 2016
been identified as Ex.P.3 and his signature at
Ex.P.3(b). He denies any knowledge about the
proceeding in C.C. No.128/1999 pending against him
and 40 other accused. He denies that accused No.5-
Nagaraj has filed a complaint against him and 40
other persons. He states that he would not be able to
identify which of the stones had been taken from
which place and there are no distinguishing marks on
the stones. He has denied rest of the suggestions
and supported the case of the prosecution.
24. PW.10/CW.15-Lingappa whose deposition was
recorded on 16.09.2015 has stated that he was an
Assistant Engineer in Hoovinahadagali. At the
request of the police, he has prepared the sketch of
the two spots which have been identified and marked
as Exs.P.4 and 5 and his signatures have been
marked as Ex.P.4 (a) and Ex.P.5 (a) respectively. In
the cross-examination, he has stated that Ex.P.4
includes the dairy both nearby and that there is a
- 46 -
CRL.A No. 100101 of 2016
street light. He has prepared a rough sketch and a
note at the spot and prepared Ex.P.4 and Ex.P.5
based on the said sketch. He has not given rough
sketch to the police.
25. PW.11/CW.14-Dr Alleppa Soudi, a Senior Medical
Officer, Haveri, whose deposition was recorded on
28.10.2015. He has stated that
a. At about 2.30 p.m., the injured PW.2/CW.2-
Kantesh, PW.4/CW.3-Kariyappa, PW.3/CW.4-
Rudrappa, PW.5/CW.5-Girish, PW.6/CW.6-
Bullamma and PW.7/CW.7-Shobhamma were
brought by the police for treatment with history
of assault on 25.10.2015. He has examined
the injured and noticed lacerated wounds.
b. He states that the injuries which had been
caused to the complainant and his family
members could have been inflicted by a club.
- 47 -
CRL.A No. 100101 of 2016
He has stated about the complainant and his
family members being injured as under:
"..... I have examined injured and noticed
lacerated on right parietal area measuring 5x1/2
cm, tenderness on right shoulder join, on
Rudrappa and those were simple in nature. Now I
see in the certificate issued by me it is marked Exp
6 and signature i.e.,
Exp 6 age of injury was 6 to 8 hours, injurious
could be inflicted by club.
I noticed lacerated wound on right partial of
injured Kariyappa and it was measuring 5 x ½ Cm.
and it was simple in nature age of injury of 6 to 8
hrs, I have issued certificated marked as Exp 7
and signature at Exp 7(a). The said injury could
be inflicted by axe., I have noticed abrasion on
right wrist join of Kantesh measrukgnn ½ x ½ Cm,
and laceration on right partial area measuring ½ x
½ cm and those were simple in nature, age of
injury was 6 to 8 and signature Exp8(a). I have
noticed abrasion on left forearm measuring ½ x ½
cm, swelling and tenderness on left forearm,
abrasion on left forearm measuring 1/2 x ½ cm,
swelling and tenderness on left forearm, abrasion
right writ join measuring 1 x ½ cm, contusion over
the left thigh measuring 5x5 cm, and fracture of
lower 1/3 of ulna bone on left side and it was
grievous in nature and age of injury 6 to 8 hrs,
and those could be inflicted by club. Now is see
the certificate marked as Exp 9 and signature Exp
9(a). I have noticed that noticed tenderness on
right glutial reason, and it was simple in nature
and it could be inflicted by stone and age of injury
of 6 to 8 hrs, now is see the certificate marked as
Exp 10 and signature Exp 10(a). I have noticed
bite marked on right shoulder joint measuring 5 x
- 48 -
CRL.A No. 100101 of 2016
3 cm, lacerated wound on occipital reasons or area
measuring 2x ½ cm, and those were simple in
nature and could be inflicted by human bite and
assaulting with club, and age of injury 6 to 8 hrs,
now I see the certificate marked as Exp 11 and
signature Exp 11 (a)".
c. In the cross-examination, he has stated that he
would make a thorough enquiry of history
before giving treatment. He has stated that the
lacerations could be inflicted even with blunt
weapon. He has effected the entries in the MLC
register. He has denied that he has deposed
falsely.
26. PW.12/CW.16-Shadakshari Patil, ASI in his evidence
recorded on 28.10.2015 has stated that he was the
ASI of Hadagali at the relevant time. On 26.07.2010
at 4:45 a.m., the complainant PW.1/ CW.1-
Basavarajappa came to the police station and filed a
complaint which he recognises as Ex.P.1. He states
that he was not knowing about the incident before
4:45 a.m. on 27.06.2010 and that neither he nor the
other constable had gone to the spot. He has
- 49 -
CRL.A No. 100101 of 2016
denied that he has prepared the complaint at 1:30
p.m. on 26.10.2010 (might be 26.07.2010). He was
knowing that accused No.2-Kamaraj was admitted in
the hospital after the assault. He does not know
when he died. He has denied that he has taken a
false complaint on political pressure.
27. PW.13/CW.12-Basavanagouda during his
examination on 09.12.2015 has stated that he knows
PW.8/CW.8-Ashok and PW.9/CW.13-Lakappa and
states that on 25.07.2010 at 3:30 pm, the police had
called him to the dairy in the village where a
panchnama was carried out. He states that the
accused and the complainants had fought at the said
place. After panchnama, 4 stones were seized. He
states that PW.9/CW.13-Lakappa was with him and
PW.8/CW.8-Ashok showed the spot. The police after
completing the panchnama took the stones. He
recognised panchnama Ex.P.2. He states that
thereafter the police took him to accused No.7-
- 50 -
CRL.A No. 100101 of 2016
Kadlenni Basavaraja's house where 5 sticks, 3 stones
and 1 axe were laying. He was told that a quarrel
had taken place. Thereafter, they conducted the
panchnama and took his signature. They also took
away the material objects. He has identified Ex.P.3
to be the panchnama of the said spot. In the cross-
examination, he has admitted that he is also an
accused in CC No.128/1999 but does not know as to
which accused. He does not know what day of the
week it was when the panchnama was carried out.
The police constable had come to call him. He does
not know his name. The scene of crime is nearly 0.5
kms from his house. The description of 5 sticks has
been made in the panchnama. He does no know
where the said sticks came from. He states
that these are common sticks which are available in
anybody's house. He has supported the case of the
prosecution.
- 51 -
CRL.A No. 100101 of 2016
28. PW.14/CW.17-D Hanumanthappa in his statement
recorded on 09.12.2015 has stated that he was the
PSI of Hirehadagali police station on 26.07.2010. At
about 6:30 a.m., the ASI, Holalu Sub police station
had sent a written complaint through Head Constable
No.338 which he registered as
Cr.No.42/2010, prepared the FIR and sent it to the
Court. On the very same day, the investigation in
this matter and another matter was handed over to
Shri Nagappa, ASI, He has identified the FIR as
Ex.P.12. In the cross-examination, he has denied
that the complaint is given at 1 o'clock.
29. PW.15/CW.18-Nagappa, in his deposition recorded
on 01.02.2016 has stated that;
a. He was the ASI of Hirehadagali police station.
On 26.07.2010, the PSI had handed over the
above matter to him for investigation. He has
stated that he went to the spot along with
PW.13/CW.12-Basvana Gouda and
- 52 -
CRL.A No. 100101 of 2016
PW.9/CW.13-Lakappa and conducted a
panchnama in their presence at which time
PW.8/CW.8-Ashok was present there and he
showed the place of occurrence of the crime.
The panchnama was conducted between 3.00 to
3.40 p.m. when 4 stones were seized as per
Ex.P.2, panchnama was recorded which is as
per M.Os.7 to 10.
b. Thereafter, PW.8/CW.8-Ashok showed them the
place in front of accused No.7-Kadlenni
Basappa's house where another panchnama
was conducted as per Ex.P.3 where 5 sticks, 3
stones and one axe were seized which he
identified as M.O.7 being the axe, M.Os.2 to 6
being the sticks and M.Os.11 to 13 being the
stones.
c. He states that he recorded the statements
of PW.8/CW.8-Ashok, CW.9-Manjapppa, CW.10-
Virupakshappa and CW.11-Shivappa. Later on,
- 53 -
CRL.A No. 100101 of 2016
on 31.07.2010, he visited Haveri district
hospital, where he recorded the statements of
PW.2/CW.2-Kantesh, PW.4/CW.3-Kariyappa,
PW.3/CW.4-Rudrappa, PW.5/CW.5-Girish,
PW.6/CW.6-Bullamma and PW.7/CW.7-
Shobhamma.
d. On 31.07.2010, he recorded the statement of
accused No.1 Eshwara, accused No.3 Lakkappa,
accused No.6 Jetti Basavarajappa, accused No.7
Kadlenni Basappa, accused No.8 Veerappa,
accused No.9 Manjappa, accused No.10-
Basavaraj and accused No.11 Nagarajappa who
were released on bail on 04.09.2010. He got
the sketch prepared by the Engineer, PWD, as
per Ex.P.4 and Ex.P.5.
e. On 09.09.2010, he got obtained the Wound
Certificate of PW.2/CW.2-Kantesh,
PW.4/CW.3-Kariyappa, PW.3/CW.4-Rudrappa,
PW.5/CW.5-Girish and PW.6/CW.6-Bullamma.
- 54 -
CRL.A No. 100101 of 2016
On 13.10.2020, he obtained the wound
certificate of PW.7/CW.7-Shobhamma and on
the same day, he submitted the charge-sheet.
He identifies the said certificate as Exs.P.6 to
11.
f. In the course of cross-examination, on enquiry
as to whether second place of crime was in
front of the house of deceased accused No.2-
Kamaraj, he states that he does not remember.
He states that he is aware that PW.8/CW.8-
Ashok and CW.10-Virupakshappa are relatives
which he came to know when the panchnama
was being prepared. He states that there are
houses around the house of the deceased. He
states that he did not seize the register of
the milk dairy. He has denied that he has not
visited the scene of crime or that PW.8/CW.8-
Ashok had shown him a different spot. There
are various suggestions made which have been
- 55 -
CRL.A No. 100101 of 2016
denied by PW.10/CW.15-Lingappa. Several
questions have been asked to him as regards
the discrepancy in the evidence of PW.2/CW.2-
Kantesh, PW.3/CW.4-Rudrappa, PW.4/CW.3-
Kariyappa and PW.5/CW.5-Girish inasmuch as
an enquiry was made as regards whether
PW.2/CW.2-Kantesh had informed him that
they went to grain Threshing yard at 10 p.m.
He has further stated that PW.2/CW.2-Kantesh
had never informed that accused No.9-
Manjappa had kicked his testicles. These are
pertaining to some of the overt acts on the part
of the accused in causing the injury to the
complainant and PW.2/CW.2-Kantesh,
PW.3/CW.4-Rudrappa, PW.4/CW.3-Kariyappa,
PW.5/CW.5-Girish, PW.6/CW.6-Bullamma and
PW.7/CW.7-Shobhamma. In the larger scheme
of things, these are not very material.
- 56 -
CRL.A No. 100101 of 2016
30. The above being the evidence, Ex.P.1 is the
complaint filed on 26.07.2010 wherein it is alleged
that on 25.07.2010 at 6 p.m., there was an
altercation in front of dairy of accused No.1-Eshwar
and it is further alleged that at 10:30 p.m. the
incident occurred during which PW.8/CW.8-Ashok
came and pacified the fight. It is stated that as there
is no doctor available in the village, they were taken
to Haveri district hospital. The said complaint was
filed on 26.07.2010 at 4:45 a.m. at the outpost
which came to be sent to Hirehadagali police station
on 26.07.2010 at 6.30 a.m. through PC No.338.
Exs.P.2 and 3 are the spot panchnamas, Exs.P.4 and
5 are sketches of the scene of crime, Exs.P.6 to 11
are the wound certificates, Ex.P.12 is the FIR,
Exs.P.13 and 14 are also sketches. Ex.D.1 is the
portion of statement of PW.2/CW.2-Kantesh, Ex.D.2
is portion of the statement of PW.2/CW.2-Kantesh,
Ex.D.3 is portion of the statement of PW.4/CW.3-
- 57 -
CRL.A No. 100101 of 2016
Kariyappa and Ex.D.4 is the portion of statement of
PW.8/CW.8-Ashok.
31. That being the evidence on record, the said evidence
needs to be examined in order to ascertain whether the
guilt of the accused has been brought home.
32. Before we advert to the evidence on record,
Cr.No.41/2010 and Cr.No.42/2010 being complaint
and counter complaint, it would be required first to
determine the procedure to be followed by this
Court.
33. In the year 1954, the Madras High Court while
dealing with the case in THOTA
RAMAKRISHNAYYA AND OTHERS VS. THE STATE
reported in AIR 1954 MADRAS 442 has opined on
how a complaint and counter complaint have to be
dealt with. The relevant portion being the last
portion at paragraph 29 and paragraphs 30, 31, 32,
- 58 -
CRL.A No. 100101 of 2016
34 and 36, which are reproduced hereunder for easy
reference:
"29. Then we come to the very important case decided
by Reilly and Pandalai JJ. - 'In re Jaggu Naidu
1932-5 Mad Cri. C. 235 (Z 10)', following extracts
may be usefully made as they have a material
bearing on the present case:
That two cases really 'Counter' to each other in
the sense that they put forward two versions of
the same incident, one of which must be false,
should be sent to the Sessions Court at or about
the same time for trial ought to be extremely rare.
Such counter cases sometimes come before a
Magistrate though it should be impossible that
both should be prosecuted by any public authority.
It sometimes happens however that in cases of
rioting in which two groups of persons are
concerned the Police put in a charge-sheet against
one party and members of that party prefer a
private complaint against their opponents. And
counter cases of that sort may arise in connection
with other offences. It is generally the duty of one
Magistrate to hear both cases and though the
Magistrate can never legally use in one case
evidence which is on record only in the other case,
it is sometime convenient that he should near all
the evidence in both cases before he pronounces
judgment in either in order that if any relevant
evidence comes to his notice in one case which
would be of use in the other he may have it
brought on record in the other case also.
The Magistrate must be trusted not to allow
himself to be confused between the two cases nor
to base his judgment in either on evidence not
legally admitted in that case. And it has
sometimes been said that when the Magistrate
finds it necessary to commit the accused in one of
such cases to the Sessions Court for trial it. is
desirable that he should commit the accused in the
counter case also instead of disposing of it himself.
- 59 -
CRL.A No. 100101 of 2016
There may be cases in which that procedure is
appropriate, though a Magistrate can never be
justified in exposing any person to the anxiety and
expense of a trial in the Sessions court, merely
because he is the complainant or one of the
prosecution party in a counter case in which the
accused is committed to session for trial.
"Preliminary inquiries under Chapter 18 Criminal
Procedure Code, are intended to be a real
protection to parties from unnecessary harassment
by committal to the Sessions Court as well as a
means of preventing waste of public time and
money.
But occasionally two counter cases relating to the
same incident, one of which must be false, are
sent to the Sessions Court for trial either by the
same Magistrate or by different Magistrates.
According to the procedure which it has been
understood has been prescribed by Jackson , J. in
-'AIR 1930 Mad 190 (Z2)', though I must
repeat that I have greatest difficulty in believing
that he really meant this-both cases must be
heard in full by the same Judge and assessors or
by the same Judge and Jury before the assessors
express any opinion or the jury gives any verdict
in either.
Let us see how this affects the Public Prosecutor
and it must be remembered that in every trial in
Sessions Court the prosecution must be conducted
by a public Prosecutor. Let us suppose that the
two cases relate to the murder of 'X', in the one
case Ramaswami Goundan being the accused, in
the other Palaniyappa Naidu, If It be thought that
this is an extreme instance to take, I can only say
that I have known of two such counter cases of
murder and have been invited to use the revisional
powers of this Court to order that the man
charged by the police with murder and a man
charged by the accused person with the murder of
the same victim be tried at a combined trial in the
Sessions Court in accordance with the procedure
supposed to have been prescribed by Jackson J.
- 60 -
CRL.A No. 100101 of 2016
How is the Public Prosecutor to conduct him-.self
in such circumstances? According to -'AIR 1930
Mad 190 (Z2)', it is not proper for him to suggest
to the Sessions Judge that the case which appears
to him to be true should be tried first; the two
cases must be tried first; the two cases must be
heard one after the other in a combined trial
before the assessors express any opinion or the
Jury gives any verdict. Is the Public Prosecutor to
conduct each case wholeheartedly as if against a
man whom he has reason to believe to be guilty?
Is he to prosecute the case against Bamaswami
Goundan in the ordinary way and then open the
case against Palaniappa Naidu in some such way
as this:
'For the last two days I have been endeavouring to
prove to you that this murder was committed by
Bamaswami Goundan, and I trust that of that I
have completely satisfied you. It is now my duty
to demonstrate that the story is entirely false and
that the murderer was not Ramasami Goundan but
Palainappa Naidu. And of that too I trust that I
shall convince you to your entire satisfaction.' Or
is he to adopt the attitude that he knows who was
the murderer of the victim but that he is not going
to let the Judge or the assessors or the Jury into
the secret; they must find it out for themselves?
Or, is he to represent himself as entirely in the
dark about the whole matter? Is he to say
something of this sort:
That a murder was committed, I think I shall have
no difficulty in convincing you. The question is
whether that murder was committed by
Ramaswarni Goundan or Palaniappa Naidu. All the
resources of the Crown have been devoted to the
investigation of that very serious question. But I
regret to have to tell you that after months of
patient labour we are still in the dark. We have no
idea whatever which was the murderer. So we
have decided to lay the whole facts before you and
leave you to make your choice.
- 61 -
CRL.A No. 100101 of 2016
Whichever method he adopts, it is likely that the
proceedings will be reduced to a disgraceful and
wicked farce. The Public Prosecutor will be required
to run with the hare and hunt with the hounds, to
appear alternatively in the same proceedings for the
prosecution and for the defence and to be in the
counsels of both, to ride two horses at once in a
scandalous competition. If those were the duties of
the Public Prosecutor, no honourable member of the
profession would demean himself by accepting the
office. Nor could these difficulties really be escaped
by appointing two Public Prosecutors for the
occasion one to conduct the prosecution of each
man. Would it be less scandalous that two counsel
should appear for the Crown in the same
proceedings, each making out that the other's
case was false?
In this country every prosecution in a Sessions
Court must be conducted by a Public Prosecutor as
a representative of the Crown; and those who
represent the Crown betray their trust if they
prosecute a case which they have not reason to
believe to be true. The great majority of cases
which come before a Sessions Court for trial have
been investigated by the Police. The object of that
investigation is not to collect evidence to make out
a case but to sift true cases from false. In
preliminary enquiries made by a Magistrate under
Chapter 18 Criminal Procedure Code, again the
case is to be tested and the evidence sifted and
only where there is a good 'prima facie' case
against the accused, the accused should be
committed to the Sessions Court for trial. But
every case in which a person is committed for trial
to the Sessions Court is riot to be tried. The Public
Prosecutor is not a machine or a slave to
prosecute every case in which there has been a
committal. To the Public Prosecutor is entrusted
discretion to withdraw from the prosecution with
the consent of the Court and his withdrawal puts
an end to the case. The law gives him a real
discretion in the matter. It may often be proper for
him to consult the District Magistrate or other
authorities before exercising that discretion. But in
- 62 -
CRL.A No. 100101 of 2016
the eye of the law and of the Court the discretion
is his alone subject to the consent of the Court.
The Public Prosecutor holds a very honourable and
responsible office. To suggest that if unfortunately
two counter-cases, one of which must be false, are
sent to the Sessions Court, he cannot properly
indicate to the Court which case he has reason to
believe to be true and undertake the prosecution
of that case first, is to my mind quite
unreasonable. On the contrary it is his right and
his duty to select the case which appears to him to
be true. It is possible - indeed it has sometimes
happened - that, after the first case has failed, the
Public Prosecutor may have reason to change his
mind and to believe the second case to be true
either on account of something which has come to
light later or something which has been disclosed
in the course of the first trial. In such
circumstances he may honestly and honourably
prosecute the second case. But how can he ever
be required to jumble up the false and the true by
prosecuting both cases at once? There is not a
word in the Code to suggest a procedure so likely
to bring courts of justice into contempt.
And the Public Prosecutor is not the only person to
be considered. Are the assessors or the jury to be
confused by the Crown putting before them two
contradictory cases? What are they to think of that
Public Prosecutor arguing for the prosecution to-
day and for the defence tomorrow, taking up
inconsistent positions, demolishing his own
arguments, examining witnesses of truth and
cross-examining them tomorrow to show that they
are liars? Can Jurors or assessors who have to
watch such a performance be expected to take
their duties seriously? It is probable that self-
respecting Jurors or assessors would show their
disgust at such proceedings by refusing to find any
one guilty in either case. And I think is a simple
test which will show that in cases tried by Jury the
postponement of the verdict of the Jury in the first
of two cases tried in succession until they have
heard the evidence in the second case, whether
the two cases are counter-cases in the sense that
- 63 -
CRL.A No. 100101 of 2016
one must be false or are merely connected cases,
is unquestionably illegal.
If the Judge at the end of the first case
does not take the verdict of the Jury but requires
them to listen to the evidence in the
Second case before they give any
verdict what is he inviting them to do?
He is inviting them to take the evidence in the
second case into consideration before they give
their verdict in the first case. There can be no
other object in requiring them to hear the
evidence in the second case before they give a
verdict in the first. The Judge who does that is
inviting the Jury to break their oath which they
have taken in the first case that they will give a
true verdict according to the evidence in that case.
Assessors are not bound by any oath; but it is
clear that it is the intention of the Code that they
shall give their opinions as required by Section
309, at the conclusion of each case on the
evidence in that alone.
And what of the accused persons, who are in turn
in the dock? The Public Prosecutor is their
champion today and their opponent tomorrow.
How can they be open with him when he is on
their side without exposing to him the weak points
in their armour, through which he can wound
them, when he in turn attacks them? And, when
all the evidence in the first case has been given,
the accused in that case are entitled to know that
they have nothing more to meet. But how can
they prevent new evidence being elicited in the
second case to fill gaps in the case against them?
Worse still, if they are made, as they must often
be made witnesses for the prosecution in the
second case, they will be exposed to cross-
examination. In this country no accused person,
can be cross-examined. Where the prosecution
evidence has been given, the Judge must question
the accused for the purpose of enabling him to
explain the evidence against him. But the Judge
must be very careful to "avoid any question in the
nature of cross-examination; he must never lead
the accused to convict himself out of his own
- 64 -
CRL.A No. 100101 of 2016
mouth; he must never elicit anything to discredit
the accused, he must never trip him up. But, when
the accused is produced as a prosecution witness
in the counter-case, all these things will be
within the province and duty of cross-examining
counsel.
An accused person cannot, be punished for any
false answer which he gives while in the clock; but
the moment he is transferred to the witness-box
as a prosecution witness he will be liable to
punishment for perjury. Even in England an
accused person cannot be compelled to give
evidence against his will. In the strange jumble of
trials we are contemplating the accused will have
no choice but go into the witness-box in his turn,
when the Public Prosecutor requires him to do so,
and in many instances it will be the duty of the
Public Prosecutor to put him there.
In other words, in these cases and counter cases,
five parties are placed in an embarrassing position
as evident from the liberal extracts which I have
made above. Firstly, we have to consider the
position of the investigating Police who have put
forward before court two diametrically opposite
versions of the same transactions as truthful
versions. Secondly, we have the Public Prosecutor
who has to conduct both the cases running with
the hare and hunting with the hounds and thereby
bringing his own honourable office into disrepute.
Thirdly, the assessors and the Jurors if the same
assessors and Jurors are empanelled for both.
Fourthly, the embarrassment of the Judge who has
to hear both the versions and to allow himself to
come to independent conclusion in both cases
without the evidence in one prejudicing his mind in
regard to the other. Fifthly, we have the accused
who has to double his role as a prosecution
witness in the one and an accused in the other.
30. So far as the investigating Police are concerned,
the solution is clear viz., the answer given by
Reilly and Pandalai, JJ. in - '1932-5 Mad Cr C 235
(Z10) and by Reilly, O. J. and Nageswara Iyer J. in
- '18 Mys LJ 229 (Z). It is unthinkable that any
- 65 -
CRL.A No. 100101 of 2016
self-respecting police would put forward two
diametrically opposed versions before court taking
a completely abbreviated view of their own
functions and treating so disrespectfully courts of
law. It is enough to point out that such a
contingency would be undreamt of in an English
Criminal Court from which system of criminal
jurisprudence we borrow ours.
31. Turning to the position of the Public Prosecutor,
the solution in ordinary practice has always been
to appoint separate Public Prosecutors for the
conduct of case and counter-case. I have myself
as sessions Judge for nearly twenty years tried
important cases and counter with different
Prosecutors.
32. Turning to the embarrassment caused to the
Jurors and assessors and the Judge the solution
has been found in the Full Bench decision of -
'Mounagurusami Naicker In re' AIR 1933 Mad 36T
(2) (Z11), to which reference will be made
presently.
34. In - 'AIR 1933 Mad 367 (2) (Z11), decided by Sir
Owen Beasley C. J. and Stone and Burn, JJ., it was
laid down after reviewing the previous decisions as
follows:
Where a case and counter-case are tried by a
Sessions Judge no hard and fast rule can be laid
down in regard to the procedure to be adopted.
The trials must be separate, i.e., before different
assessors and different judgments delivered. The
conclusions in each case must be founded on and
only on the evidence in each case.
It has to be noted that this Full Bench had the
advantage of the 'amici curici' arguments of
Messrs Nugent Grant and L. H. Bewes (Public
Prosecutor) with unrivalled experience.
36. The principles which can be evolved from these
decisions can be compendiously set out as follows.
If complaints of the offence of rioting be given by
both the parties during investigation, the
- 66 -
CRL.A No. 100101 of 2016
investigating officer should enquire into both of
them and adopt one or the other of the two
sources, viz., to charge the case where the
accused were the aggressors or to refer both the
cases if he should find them untrue in material
particulars. If he finds that the choice of either
course is difficult, he should seek the opinion of
the Public Prosecutor of the District and act
accordingly. A Magistrate before whom such a
case is charged by the Police and a private
complaint from the party whose case was referred,
should hear both the cases together and commit
both the cases to the Sessions even if only one of
them is exclusively triable by a court of Session.
If, however, the Magistrate feels that there is no
acceptable evidence in both the cases, he should
discharge the accused. If, however, in one case a
more serious offence like Section 148 I. P. C. is
made out then in the interest of justice, both the
cases should be sent to the First Class Magistrate
for disposal, and he may commit both the cases,
or discharge the committal case and himself try
the other or if he finds the committal case after
recording evidence one triable by himself proceed
to enquire into both and convict or discharge or
acquit, the accused in both the cases.
The Sessions Judge should if both the cases had
been committed hear them in succession with
different assessors and come to independent
conclusions keeping as far as possible the
evidence in the one case distinct from the other. If
in respect of an occurrence, there is a variation in
time, or place, or other circumstances warranting
a reasonable inference that they are not parts of
the same transaction, but that the earlier
occurrence may even be a motive for the later
one, then the two cases may be tried separately
and the aforesaid rules of procedure need not be
applied. If in respect of a single incident, two
different versions are offered, and they are
substantially divergent from one another, then it is
the duty of the investigating officer to find out
which version is true and charge that case only
leaving the other version to be prosecuted if so
advised after a referred charge-sheet being served
- 67 -
CRL.A No. 100101 of 2016
on the complainant and in such cases also the
rules for enquiry and trial as in case and counter
should be followed.
If in trials not exclusively triable by a Court of
Session, a Magistrate has to hear and dispose of
the cases himself and he frames charges in one
case and does not frame any charges at all in the
other, it cannot be considered that the Magistrate
had made up his mind in the other case by not
framing the charges and some kind of reasonable
apprehension cannot be said to be created in the
minds of the accused in respect of the other case
where charges had been framed and transfer
asked for on that ground. The fact that in a similar
case the Magistrate came to a particular
conclusion on the evidence in that case is no
ground for a transfer : - 'Rajani Kanta v. Emperor',
36 Cal 904 (Z21). Interest or bias should not be
inferred from the opinions formed by the
Magistrates on evidence judicially recorded -
'Ghulamali v. Emperor' AIR 1935 Sind 72 (Z22)
and -'Walidad v. Nizam-ud-din' AIR 1929 Lah 43
(Z23).
The principle maintained universally by all High
Courts is that the accused has no reasonable
ground for apprehension that he will not have a
fair trial merely because the Judge in an ence in
that case as to which of the two versions ancillary
proceeding arising out of a counter-case has
expressed certain views upon the evid-is correct.
The basis of the ruling is that Judges are
presumed to be upright men who will approach
each case from the point of view of that case alone
and not permit their minds to be affected in any
way by anything that has gone before that case. It
cannot be believed that Judges are so easily
prejudiced that because one incidental part of the
case before them has been decided in a previous
case, they will shut their eyes entirely to anything
that may be alleged in favour of the accused in a
subsequent trial : - 'Amrit Mandal v. Emperor' AIR
1916 Pat 33 (2) (Z24)."
- 68 -
CRL.A No. 100101 of 2016
34. The Kerala High Court while dealing with a similar
kind of matter in AUGUSTINE AND OTHERS VS.
THE STATE reported in 1982 CRL. L.J. 1557, more
particularly, at paragraphs 4 and 12 has held as
under:
"4. Before going into the propriety of the procedure
canvassed by the appellants, it is desirable to deal
with the connotation of the term "case and
counter-case' which is very often used during
criminal trials. The term in its general import
stands for cases registered on the basis of rival
versions of the same incident. Such cases need
not always be registered on the basis of police
reports. In respect of a particular occurrence, the
police on getting information may register a case
against a certain individual, say a person by name
A. It may so happen that A himself sustained
some injuries. A might approach the police and
launch a complaint regarding his version of the
occurrence and how he sustained the injuries. The
two versions may be conflicting Still the police
may register a case and investigate it along with
the main case already registered. After
questioning witnesses the investigating officer may
find that the version given by A is false. What the
officer generally does is to file a charge-sheet in
the main case and a refer report in the case
registered on the basis of the statement of A. A
would naturally feel aggrieved by the conduct of
the police.
It may also happen that even though A gave a
statement the police did not register a case based
on his statement. In both the above contingencies
A is not left without his remedy. He may present a
complaint before Court setting out how, according
to him, the occurrence took place and he
sustained the injuries and the Magistrate may take
- 69 -
CRL.A No. 100101 of 2016
the complaint to file and proceed with it. The main
case based on the police report and that based on
the complaint give conflicting versions of the same
incident and are therefore described as "case and
counter-case". In one the prosecuting secuting
agency will be the State while in the other it is the
private complainant. The decision, Achuthan v.
Bappu 1961 Ker LT 412, represents the above
type. There can also be case and counter-case
where both the prosecuting agencies are private
individuals. Thus A may sustain injuries at the
hands of B and in the course of the same
transaction B may sustain injuries at the hands of
A. Both A and B would be having their own
versions of the occurrence which would be
conflicting with each other. In such cases if A and
B prefer complaints against each other, those
cases also come under the purview of 'case and
counter-case'.
It is now well recognised that cases and counter-
cases of the above type should be tried and
disposed of by the same Court, trial in one being
followed by the other and the judgment in both
being pronounced in quick succession. The
underlying principle is that since the cases relate
to the same occurrence and the witnesses in one
may figure as accused in the other case and they
may give conflicting versions, for grasping the real
facts and for a proper appreciation of the
evidence, it is always desirable that the two cases
are tried by the same Court. The case law leading
to the above practice has been discussed in detail
by Ramaswami J., in Ramakrishnayya v. State . It
may not be necessary to go into more details
regarding the procedure to be followed in cases
where the prosecuting agencies are different in the
case and the counter-case as that may not be of
much help in resolving the present controversy.
In riot cases where there are factions the police on
investigation may find that each of the rival
parties overstepped the bounds of law and
committed offences of independent nature. In
such cases there is nothing wrong in filing
separate charge-sheets against each because one
- 70 -
CRL.A No. 100101 of 2016
would not necessarily be false if the other were
true. We are not now concerned with the
procedure to be followed in such cases also. In the
case and counter-case of the type we are
concerned the rival versions put forward may not
stand together and it the main case is true, the
counter-case would necessarily be false. The
question that is posed is whether in such case it is
incumbent on the part of the police to see that
charge-sheets are filed in both in spite of the fact
that as a result of investigation they form the
opinion that one of the versions is false.
12. In the light of the discussion we hold that if in
respect of a transaction relating to an offence a
case and a counter-case happen to be registered
by the police, based on conflicting versions given
by rival persons, it is not incumbent on the part of
the investigating officer to file separate charge-
sheets in both the cases. The investigating officer
is expected to file a charge-sheet only in the
case where, it appears to him as a result of
investigation that an offence has been committed.
The observation to the contrary contained
in Thami v. State of Kerala 1965 Ker LT 697, is
not legally sustainable and will therefore stand
overruled.
35. A division bench of this Court had an occasion to
extensively deal with the said subject matter in THE
STATE OF KARNATAKA VS. BALAPPA BHAU
VADAGAVE AND OTHERS reported in 1984 (2)
KLJ 1 wherein at paragraphs 70, 72, 73, 74 and 75
it has been held as under:
- 71 -
CRL.A No. 100101 of 2016
"70. A careful reading of all these rulings would reveal
that it is the duty of the police while
investigating a case and a counter-case to
investigate both the cases as provided under
Chapter XII of the Code and after completing the
investigation assess the material collected to find
out whether on the material collected, there is a
case to place the accused before a Magistrate for
trial and if so, take the necessary steps for the
same, by filing a charge-sheet under Section
173 Cr. P.C. There may be a case where it may
happen that each party has committed the
offence and that each party has over-stepped
the bounds of law and if the investigating officer
on the assessment of the evidence reach such a
conclusion, it is perfectly open to him to place
charge-sheet in both the cases as there would be
nothing incompatible in them. But on the other
hand, if the investigation reveals that if one case
is true, the other must necessarily be false, then
the police should file charge-sheet in the case in
which the investigation disclosed a case to place
the accused before the Magistrate for trial and
refer the other case to leave the aggrieved party
to pursue the matter by him. Judicial verdict is
consistent in deprecating the conduct of the
police in placing charge sheets in both the case
and the counter-case, which are contradictory, in
the sense, that if one is true, the other must
necessarily be false, solely with a view to shirk
their responsibility, being afraid of the possibility
or probability of imputing partiality and for
evading the same, filing charge-sheets in both
the cases to appease both the parties leaving the
matter to be decided by the court. In none of
these rulings, investigation of the case and the
counter-case by different officers is either
indicated or suggested.
- 72 -
CRL.A No. 100101 of 2016
72. As regards the counter case, obviously arising
out of the complaint Ex. P. 29 of Al, there is a
mere reference by the trial court in the course of
the judgment while dealing with the injuries
sustained by A1 to A3 that the defence itself had
explained the injuries sustained by the accused
as it had to, so explain because of the peculiar
defence taken in the counter-case, obviously by
the prosecution witnesses in this case who were
the accused in the counter-case. Thus it would
appear that the case and the counter case
arising out of the same incident in the instant
case were investigated by two officers,
independent of each other, each of whom after
completing the investigation placed the charge-
sheet in the respective cases, obviously with the
dressed-up investigation, without verifying the
truth or other-wise of the two versions of the
same incident given by the deceased - party as
well as the accused party and collected material
in each of the cases in such a way to make out a
case against the accused in each case so as to
place both of them before the court for trial as if
the case and the counter-case are two
independent crimes although arising out of the
same incident.
73. The reason for conducting investigation in this
fashion though not found in the Code of Criminal
procedure, was founded upon a Law Section
Circular No. 3989 dated 7-5-1977 issued from
the office of the Inspector General of Police,
Karnataka State. The subject matter of the law
circular reads :
" Rioting case - case and counter case -
investigation and prosecutor separate I.Os. and
prosecutors-"
In the introductory portion of the circular
instruction, having stated that the propriety of
the same investigating officer investigating both
the case and the counter-case and filing charge-
sheets against both the groups and the same
prosecutor conducting both the cases has been
considered by the High Court of Karnataka in
- 73 -
CRL.A No. 100101 of 2016
Gooti Sanniah's case (1976 (1) Kar. L.J. 10) and
having excerpted a portion of the judgment from
that decision and having examined the question
whether there should be separate investigating
officer and separate prosecutor for the case and
the counter-case, the Inspector General of Police
issued instructions to the investigating officers as
to the procedure to be followed in investigating
the case and counter-case and the steps to be
taken for deputing separate prosecutor to
conduct the case and the counter-case where
charge-sheets have been laid in both the cases
which are as under :
4) Whenever a case and a counter-case of rioting
is registered in a Police-Station, the Investigating
Officer/S.H.O. should immediately send a report
to the Circle Inspector, A copy of this report
should also be sent to the S.D.P.O.
5) On receipt of the report from the S.H.O. the
Circle Inspector should take up investigation of
the counter-case and complete the investigation
and file the final report.
6) If the Circle Inspector is not available either
due to his absence on leave or for any other
reason, the S.D.P.O, should immediately take up
the investigation of the counter-case, continue
the investigation and file the final report.
7) The S.D.P.O. Should send a special report
regarding the registration and investigation of
the case and counter-case to the Superintendent
of Police of the District.
8) When charge-sheets have been filed in both
the case and counter case, the fact should be
reported by the C.I. SDPO to the Superintendent
of Police of the District, requesting for making
arrangements for deputing a separate prosecutor
to conduct the counter-case.
9) The Superintendent of Police in turn should
take up the matter with the Dy. Director of
Prosecution of the Range and ensure that a
- 74 -
CRL.A No. 100101 of 2016
separate prosecutor is deputed for conducting
the counter-case.
10) These instructions should be strictly adhered
to."
74. The question is whether this circular which was
obviously based on the ruling of this court in
Gooti Sannaiah's case (1976 (1) Kar. L. J. 10) is
based on the correct understanding of the legal
position enunciated in the said decision. We have
already referred to the legal position enunciated
in the said decision and we are unable to find
any support for the instructions issued to the
police for conducting investigation by different
officers in the case and the counter-case arising
out of the same incident and placing
final report after completing the investigation
independent of each other by following the
procedure contained in the circular instructions.
In Gooti Sannaiah's case (1976 (1) Kar. L. J.
10), all that was emphasized by a Bench of this
Court was the undesirability of placing charge-
sheets in both the case and the counter-case by
the same police of which, if one is true, the other
is essentially false and prosecuting such
contradictory cases one after another by the
same prosecutor. This legal position as we found
earlier, was enunciated as early as by the
erstwhile High Court of Mysore in Gundi
Giriyappa's case (18 Mys. L. J. 229). The same
view was taken by the Madras High Court in
Ramakrishnaiah's case . The ratio of the Full
Bench decision of the Kerala High Court in
Augustine's case (1982 Cr. L. J, 1557) also falls
in line with the ratio of the above decisions.
Neither we find any support for the proposition
that separate investigating officers should
investigate the case and the counter-case arising
out of the same incident in any of the decided
case, much less in the decision of this Court in
Gooti Sannaiah's case (1976 (1) Kar. L. J. 10),
nor under any of the provisions of the Code.
There cannot be any two opinions that the case
and the counter case arising out of the same
incident though registered in separate crime
- 75 -
CRL.A No. 100101 of 2016
numbers, are not two independent cases but two
versions of the same incident. For the
purpose of investigation, both the complaint and
the counter-complaint are registered separately
but the truth or otherwise of the complaint and
the counter-complaint shall have to be verified
by the same investigating officer, investigating
both the crimes impartially and diligently and
after completing the investigation, assess the
material collected in both the crimes, form an
opinion as to which of the persons in the
complaint or the counter-complaint, as the case
may be, have committed
the offence and place the charge-sheet against
such persons and refer the case in which he
found no offence is made out, so that the
concerned party may prosecute his complaint in
a court of law. However, we may emphasize that
in appropriate cases, though such cases seldom
occur, the investigating officer may file charge-
sheets against both the parties as illustrated in
Gundi Giriyappa's case (18 Mys. L.J. 229) to
which a reference has been made earlier.
75. It is unfortunate that neither the Directorate
of Prosecution which is in-charge of the conduct
of the prosecution in the subordinate courts nor
the State Public Prosecutor, who is representing
the State in Criminal Cases at the High Court
level, has so far perceived in these long seven
years and taken any step to set right the wholly
wrong and erroneous mode of conducting
investigation in case and counter-case arising
out of the same incident by different
investigating officers, independent of each other
and filing reports under Section 173 of the Code
based upon the Law Section Circular No. 3989
dated 7-5-1977 referred supra for which we do
not find any sanction or approval by any of the
provisions of the code. We feel wonder how
many rioting cases involving case and counter-
case ended in miscarriage of justice due to this
mode of investigation by the police. We look
askance at the slackness on the part of the
aforesaid agencies and also the wisdom of the
- 76 -
CRL.A No. 100101 of 2016
authority responsible for the Law Circular which
introduced the novel investigation in this State."
36. The Hon'ble Apex Court in NATHI LAL VS. STATE
OF U.P. reported in 1990 SCC (SUPP) 145 at
paragraph 2 has held as under:
"2. We think that the fair procedure to adopt in a
matter like the present where there are cross
cases, is to direct that the same learned Judge
must try both the cross cases one after the
other. After the recording of evidence in one
case is completed, he must hear the arguments
but he must reserve the judgment. Thereafter he
must proceed to hear the cross case and after
recording all the evidence he must hear the
arguments but reserve the judgment in that
case. The same learned Judge must thereafter
dispose of the matters by two separate
judgments. In deciding each of the cases, he can
rely only on the evidence recorded in that
particular case, The evidence recorded in the
cross case cannot be looked into. Nor can the
judge be influenced by whatever is argued in the
cross case. Each case must be decided on the
basis of the evidence which has been placed on
record in that particular case without being
influenced in any manner by the evidence or
arguments urged in the cross case. But both the
judgments must be pronounced by the same
learned Judge one after the other."
- 77 -
CRL.A No. 100101 of 2016
37. The Hon'ble Apex Court once again in STATE OF
M.P. VS. MISHRILAL (DEAD) AND OTHERS
reported in AIR 2003 SC 4089 at paragraphs 7 and
8 has held as under:
7. Undisputedly, accused Mishrilal lodged the report
to the police vide Ex.D-8 over the same incident
happened on 5.3.1987, in which he had clearly
stated the injuries were sustained by him and his
son Madhusudan at the hands of prosecution
party. It is also not disputed that on the strength
of the complaint lodged by Mishriulal,
investigation was also carried out and
challan was filed namely crime case
No.52/87 under Sections 147, 148, 149
and 324 IPC against the prosecution party which
is pending for disposal before the learned Judicial
Magistrate First Class. In the said
challan, the prosecution party is stated to be
an aggressor. This Court in Nathilal Vs. State of
U.P. 1990 (Supp.) SCC 145, pointed out the
procedure to be followed by the Trial Court in the
event of cross cases. It was observed thus:-
"We think that the fair procedure to adopt in a
matter like the present where there are cross
cases, is to direct that the same learned Judge
must try both the cross cases one after the
other. After the recording of evidence in one
case is completed, he must hear the arguments
but he must reserve the judgment. Thereafter he
must proceed to hear the cross case and after
recording all the evidence he must hear the
arguments but reserve the judgment in that
case. The same learned Judge must thereafter
dispose of the matters by two separate
judgments. In deciding each of the cases, he can
rely only on the evidence recorded in that
particular case. The evidence recorded in the
cross case cannot be looked into. Nor can the
- 78 -
CRL.A No. 100101 of 2016
judge be influenced by whatever is argued in the
cross case. Each case must be decided on the
basis of the evidence which has been placed on
record in that particular case without being
influenced in any manner by the evidence or
arguments urged in the cross case. But both the
judgments must be pronounced by the same
learned Judge one after the other."
8. In the instant case, it is undisputed, that the
investigating officer submitted the challan on the
basis of the complaint lodged by the accused
Mishrilal in respect of the same incident. It would
have been just fair and proper to decide both the
cases together by the same court in view of the
guidelines devised by this Court in Nathilal's case
(supra). The cross- cases should be tried
together by the same court irrespective of the
nature of the offence involved. The rational
behind this is to avoid the conflicting judgments
over the same incident because if cross cases are
allowed to be tried by two courts separately
there is likelihood of conflicting judgments. In
the instant case, the investigating officer
submitted the challan against both the parties.
Both the complaints cannot be said to be right.
Either of them must be false. In such a situation,
legal obligation is cast upon the investigating
officer to make an endeavour to find out the
truth and to cull out the truth from the
falsehood. Unfortunately, the investigating officer
has failed to discharge the obligation, resulting in
grave miscarriage of justice."
38. A Full Bench of this Court in STATE OF KARNATAKA
BY CIRCLE INSPECTOR OF POLICE VS.
HOSAKERI NINGAPPA AND ANOTHER reported in
ILR 2012 KAR 509 has formulated the following
three questions:
- 79 -
CRL.A No. 100101 of 2016
(1) Whether the proceedings are vitiated if the case
and counter case are not tried as held by the
Hon'ble Supreme Court in Nathi Lal vs. State of
U.P. reported in 1990 SCC (Cri) 638 and Sudhir
and others vs. State of M.P. reported in 2001
SCC (Cri) 387?
(2) Whether the evidence recorded in one case can
be looked into in the other case? If so, when and
to what extent?
(3) If the Trial Court disposes of case and counter
case on different dates acquitting the accused
therein and no appeal is preferred in one of the
cases and appeal Trish is preferred in the case
decided later A. whether the proceedings in the
later case are vitiated?
39. The Full Bench of this Court has held as under:
16. To sum up, the procedure to be adopted in case
and counter case is that the investigation should
be conducted by the same Investigating Officer
and the prosecution should be conducted by two
different Public Prosecutors. The trial should be
conducted by the same Court. After recording
the evidence 11.00 and after hearing the
arguments, the judgment should be reserved in
one case and thereafter the evidence should be
recorded and the arguments should be heard in
the other case. It is needless to observe that the
arguments in both the matters shall be heard by
the same Learned Judge. The judgments should
be pronounced by the same Judge
simultaneously i.e., one after the other.
In deciding each case, the Trial Judge can only
rely on the evidence recorded in that particular
case and the evidence recorded in the cross case
(or counter case) cannot be looked into. The
- 80 -
CRL.A No. 100101 of 2016
Judge shall not be influenced by the evidence or
arguments in the cross case. However, if the
evidence recorded in one case is brought on
record in another case in accordance with the
procedure known to law, then, such evidence
which is legally brought on record can be looked
into. Except in such situation, the evidence
recorded in one case cannot be looked into in
another case.
18. In view of the foregoing reasons, we answer the
points referred to us as under:
(a) If the case and counter case are not tried
simultaneously as held the Supreme Court in the
case of Nathi Lal vs. State U.P. (Supra) and in
the case Sudhir and others vs. State of M.P.
(Supra) the proceedings ipso facto do not get
vitiated. But, where the irregular procedure
adopted the Trial Court caused prejudice to the
accused and has occasioned failure justice, the
proceeding and the trial vitiates. Otherwise, the
proceedings are protected under Section 465 of
the Code.
(b) The evidence recorded in one case cannot
be looked into in the other case. The Trial Judge
can only rely upon the evidence recorded in that
particular case and the evidence recorded in the
cross case cannot be looked into. Each case must
be decided on the basis of the evidence which
has been placed on record in that particular
case. However, if the evidence recorded in one
case is brought on record in accordance with
procedure known to law in the other case, then,
such evidence which is legally brought on record
can be looked into. Otherwise, the evidence
recorded in one case cannot be looked into in the
other case.
- 81 -
CRL.A No. 100101 of 2016
(c) If the Trial Court disposes of the case and
counter case on different dates acquitting the
accused therein and no appeal is preferred in
one of the cases and the appeal is preferred in
the case decided later, the proceedings in the
later case do not automatically get vitiated. Each
case has to be judged on its own merits. Unless
prejudice is shown to have been caused to the
accused, the proceedings in the later case do not
get vitiated.
The reference is answered accordingly."
40. The Hon'ble Apex Court in MITTULAL AND
ANOTHER VS. THE STATE OF M.P. reported in AIR
1975 SC 149 at paragraph 4 has held as under:
"4. It is apparent from a bare reading of the
judgment of the High Court that it suffers from a
serious infirmity and it is impossible to sustain it.
The High Court has based its conclusion not only
on the evidence recorded in the case against the
appellants and the four other accused but also
taken into account the evidence recorded in the
cross case against Ganpat, Rajdhar and others.
This is what the High Court has stated in so
many terms in paragraph 7 of the judgment :
The two cases Cr.A.No. 188 and Cr. A. 202 of
1968 have to be read together and then alone
the real position can be understood. The
witnesses in one case are undoubtedly accused
in the other It is by going through the evidence
in both the cases that we can come to the real
story The Nandwanshis claim that the fight took
place in the field belonging to them and,
therefore, they had a right of private defence,
whereas the other party similarly claim that the
fight took place in their field and they had a right
of private defence. Curiously enough both claim
- 82 -
CRL.A No. 100101 of 2016
that the origin of the trouble is the grazing of the
cattle If we read with both the cases together
with the statement of the accused in one case
and the version of the witnesses of the
prosecution witnesses in the other along with the
statement of the accused and the version of the
prosecution witnesses in the other we can come
to the true story. Independently considered a
particular case, it creates some confusion. If
both the cases are read together there leaves no
room for doubt that the incident happened in the
following manner.... After going through the
evidence of both the cases I have come to the
conclusion that the conviction in both the case
are in order.
This was clearly impermissible to the High Court.
It is difficulty to comprehend as to how the High
Court could decide the appeal before it by taking
into accounts evidence recorded in another case,
even though it might be what is loosely called a
cross case. It is elementary that etch c se must
be decided on the evidence recorded in it and
evidence recorded in another case cannot be
taken into account in arriving at the decision
Even in civil cases this cannot be done unless the
parties are agreed that the evidence in one case
may be treated as evidence in the other. Much
more so in criminal cases would this be
impermissible it is doubtful whether the evidence
in one criminal case can be treated as evidence
in the other, even with the consent of the
accused. But here there was clearly no consent
of the appellants to treat the evidence recorded
in the cross case against Ganpat and Rajdhar as
evidence in the case against them The High
Court was, therefore, clearly in error in taking
into consideration the evidence recorded in the
cross-case against Ganpat and Rajdhar. The High
Court ought to have decided the appeal before it
only on the basis of the evidence recorded in the
present case and ought not to have allowed itself
to be influenced by the evidence recorded in the
cross-case against Ganpat and Rajdar. It is
regrettable that the High Court should have
fallen into such an obvious error. The judgment
- 83 -
CRL.A No. 100101 of 2016
of the High Court must, therefore, be set aside
and we must proceed to consider whether, on
the evidence recorded in the present case
without locking into the evidence recorded in
other cross-case the conviction and sentence
recorded against the appellants can be
sustained."
41. Though all the aforesaid decisions are relating to the
procedure to be followed by the trial Court, the
decision of the Hon'ble Apex Court MITTULAL AND
ANOTHER VS. THE STATE OF M.P. reported in AIR
1975 SC 149 would be of some assistance to us
wherein the Hon'ble Apex Court has held that the High
Court could not decide an appeal before it by taking
into account evidence recorded in another case even
though it might be a cross-case or a counter case.
42. Thus, from the above, it is clear that even
when appeals are filed, before the High
Court, one challenging the conviction in the case, the
other challenging the conviction in a counter case or
one challenging the acquittal in the case and
conviction in the counter case or vice versa, the High
Court could not look into the evidence of the counter
- 84 -
CRL.A No. 100101 of 2016
case while deciding the case and cannot look into the
evidence in the case while deciding the counter case.
43. The above would also imply that there are two
separate judgments which are required to be passed
and both the appeals cannot be clubbed together and
a single judgment cannot be passed after hearing the
counsels. Thus, the procedure which should be
required to be followed by the High Court being more
or less as that to be followed by the trial Court can
be summed up as under.
44. Whenever two appeals are before the High Court
arising out of a case and counter case
a. It would also be required that in each of the
appeals a different prosecutor appears on
behalf of the State,
b. After arguments are heard in one appeal the
judgment is required to be reserved,
- 85 -
CRL.A No. 100101 of 2016
c. After argument is heard in the second appeal
the judgment is to be reserved,
d. Two separate judgments are required to be
passed in each of the appeals,
e. While passing judgments in each of the appeals,
the High Court cannot look into the
evidence led or be influenced by the arguments
advanced in the other appeal.
f. Suffice it to say that each appeal has to be
decided on the basis of the evidence and the
law applicable to that particular appeal.
45. The above aspects being laid to rest, we would be
required to pass two separate judgments in both the
appeals. Both the appeals were heard one after the
other and judgment reserved.
46. The evidence on record indicates that on 25.07.2010
at about 6 p.m., there was an altercation in front of
the dairy in the village when PW.2/CW.2-Kantesh
- 86 -
CRL.A No. 100101 of 2016
had gone to deliver milk, accused No.1-Eshwar is
stated to have alleged that PW.2/CW.2-Kantesh
was mixing water with milk at the time of supply to
the dairy. This allegation led to an altercation
between PW.2/CW.2-Kantesh and accused No.1-
Eashwar, where PW.2/CW.2-Kantesh contended that
he had not mixed any water and the allegation is
false while accused No.1-Eshwar insisted on the
allegations being true. Hence, accused No.2-
Kamaraj, accused No.8-Veerappa and accused No.9-
Manjappa also joined into the quarrel and assaulted
PW.2/CW.2-Kantesh PW.2/CW.2-Kantesh.
47. At that time, when PW.1/CW.1-Basavarajappa, the
complainant was on his way home, he had also
inquired as to why accused No.1-Eshwar, accused
No.2-Kamaraj, accused No.8-Veerappa and accused
No.9-Manjappa were assaulting PW.2/CW.2-
Kantesh, when the said accused also made allegation
against PW.1/CW.1-Basavarajappa stating that he
- 87 -
CRL.A No. 100101 of 2016
was mixing water with milk. This resulted in further
altercation with accused No.1-Eshwar, accused No.2-
Kamaraj, accused No.8-Veerappa and accused No.9-
Manjappa assaulting PW.1/CW.1-Basavarajappa also
with their hands and pushed PW.1/CW.1-
Basavarajappa into an open drain nearby next to the
dairy.
48. This being the first incident, the second incident
happened later on around 10 p.m. to 10.30 p.m.
There is a slight discrepancy in this, inasmuch as,
PW.1/CW.1-Basavarajappa has stated that the
incident occurred at 10:30, PW.2/CW.2-Kantesh has
stated that the incident occurred at 10 p.m.,
PW.3/CW.4-Rudrappa has stated that the incident
occurred at 10:30 p.m., PW.4/CW.3-Kariyappa has
stated that incident occurred at 10 p.m., PW.5/CW.5-
Girish had stated that it was 10:30 p.m.,
PW.6/CW.6-Bullamma stated that it was 10 p.m.,
- 88 -
CRL.A No. 100101 of 2016
PW.7/CW.7-Shobhamma stated that it occurred at 10
p.m.
49. Apart from this discrepancy on time, the occurrence
of the incident has been deposed to by the aforesaid
witnesses.
50. They have stated that at 10.00/10.30 p.m. when PW-
1/complainant Basavarajappa, PW.2/CW.2-Kantesh,
PW.3/CW.4-Rudrappa, PW.4/CW.3-Kariyappa and
PW.5/CW.5-Girish were on the way to their grain
Threshing yard in front of the house of accused No.7-
Kadlenni Basappa, accused Nos. 1 to 12 (accused
No.2 being deceased) had gathered in front of that
house, formed themselves into an unlawful assembly
with an intention to eliminate the complainant and
his family members on account of the altercation
which occurred at 6 p.m. in front of the milk dairy
and when the complainant and his family members
reached the said spot, the said accused assaulted the
complainant and his family members by 6 sticks, an
- 89 -
CRL.A No. 100101 of 2016
axe and stones as also abused them in indecent
words. At the same time, threatening the life of the
complainant and his family members at which time
hearing the sounds/noise of the quarrel, PW.6/CW.6-
Bullamma, the mother of PW.1/CW.1-Basavarajappa
and PW.7/CW.7-Shobhamma, the wife of
PW.1/CW.1-Basavarajappa came to the rescue of the
complainant and his family members, who have
assaulted PW.6/CW.6-Bullamma and PW.7/CW.7-
Shobhamma causing grievous injuries to all of them,
more particularly, to PW.7/CW.7-Shobhamma whose
left wrist got fractured as per wound certificate at
Ex.P.9.
51. While the above appeal was pending, an application
in IA No.1/2020 had been filed in the above matter
invoking the provisions of Section 391 of the Cr.P.C.
seeking for additional evidence to be taken on
record. It was contended that the said additional
evidence was required to unfold the truth in the
- 90 -
CRL.A No. 100101 of 2016
matter since both the above appeals arise out of a
case of complainant and counter-complaint, certain
documents which had been annexed with the said
application and which had been produced in
S.C.No.89/2011 arising out of Cr. No.41/2010 would
also be relevant. Considering that the life and liberty
of individuals are involved and the accused is
required to be given all chances to demonstrate his
innocence, the said application IA-1/2020 was
allowed. The operative portion of the order reads as
under:
"The appellants have filed a memo praying that
Sri. Manjappa S/o Kadlenni Basappa, appellant
No.6/accused No.9 be allowed to examine as
DW-1 before the learned 3rd Addl. District and
Sessions Judge, Ballari. Accordingly, the memo is
allowed and we direct the 3rd Additional District
and Sessions Judge, Ballari, sitting at Hospete to
permit the appellant No.6/accused No.9 to
tender evidence in defence and permit him to
produce and mark the documents noted herein
above saying that the prosecution shall be given
an opportunity to cross-examine the witness.
Appellant No.6/acused No.9 namely Sri.
Manjappa S/o Sri.Kadlenni Basappa shall appear
before the Sessions Court on 06.11.2020."
- 91 -
CRL.A No. 100101 of 2016
52. Pursuant to the above, the file was sent to the trial
Court, notice was issued to the accused and the
prosecutor.
53. On 17.11.2020, accused No.9 Manjappa was
examined as DW-1, Ex.D.5 to Ex.D.17 were marked
and the defence side was closed. The Public
Prosecutor was present and submitted that he has no
cross-examination. On the defence counsel closing
his side, the trial Court sent back the entire records
along with evidence of DW-1 and Ex.D.5 to Ex.D.17.
54. Ex.D.5 is the charge sheet No.4/2011 filed in
Cr.No.41/2010 out of which S.C.No.89/2011 arose.
In the said charge-sheet, it is alleged that on
25.07.2010 at 7 p.m., there was an altercation near
the milk dairy. Later on, at 12 hours in the midnight
on 25.07.2010, the accused therein carrying sticks,
stones and axe had broken into the house of the
complainant therein (accused No.7-Kadlenni
Basappa) with an intention to cause
- 92 -
CRL.A No. 100101 of 2016
murder (prosecution story in S.C.No.89/2011). The
complainants therein were accused No.7-Kadlenni
Basappa, Shantappanavara Basappa, Ambli Jayappa,
accused No.4 herein- Kadlenni Sanganabasappa,
accused No.12 herein -Kadlenni Shivappa
Shanthappanavara Basavarajappa @ Gulappa.
Ex.D.6 is the list of witnesses submitted along with
that charge sheet.
55. Ex.D.7 is the complaint filed on which basis
Cr.No.41/2010 was registered, Ex.D.8 is the First
Information Report in Cr.No.41/2010, Ex.D.9 is the
panchnama in Cr.No 41/2010, Ex.D.10 is the rough
sketch of the spot in Cr.No 41/2010, Ex.D.11 is the
Wound Certificate of Kadlenni Manjappa (accused
No.9), Ex.D.12 is the MLC in respect of deceased
(accused No.2-Kamaraj) issued by City Central
Hospital Private Limited, Davanagere, Ex.D.13 is the
wound certificate of accused No.3 herein, Lakappa,
Ex.D.14 is the wound certificate accused No.8 herein,
- 93 -
CRL.A No. 100101 of 2016
Veerappa, Ex.D.15 is the wound certificate of
accused No.7 herein, Kadlenni Basappa. Ex.D.13 to
Ex.D.15 are issued by the Medical Officer,
Government General Hospital, Hoovinahadagali,
Ballari district. Ex.D.16 is the postmortem report of
accused No.2 herein, Kamaraj, Ex.D.17 is the
certificate said to be issued by Dr.Raju, a Medico
Legal expert of the City Central Hospital Private
Limited, to the Police Circle Inspector to Hadagali
police station.
56. As aforestated, Cr.No.41/2010 had been registered
on the basis of a complaint filed by accused No.6
herein - Jetti Basavarajappa that the complainant
and his family members who are the accused in
Cr.No.41/2010 had barged into the house of accused
No.7-Kadlenni Basappa, assaulted the family
members of accused No.7-Kadlenni Basappa and
when accused No.2-Kamaraj and others after hearing
the sounds of the quarrel had come to the spot, they
- 94 -
CRL.A No. 100101 of 2016
were also attacked which resulted in injuries as per
the wound certificate produced at Exs.D.13 to 15 and
the death of accused No.2-Kamaraj which is evident
by the MLC at Ex.D.12 and the postmortem report at
Ex.D.16. In the MLC at Ex.D.12, it is stated that the
patient's brother had informed the hospital that
accused No.2-Kamaraj had been assaulted
by PW.1/CW.1-Basavarajappa, PW.4/CW.3-
Kariyappa, PW.3/CW.4-Rudrappa and others when
he was asleep at his residence at about 11 p.m. The
MLC in respect of accused No.2-Kamaraj indicates
that he was admitted to City Centre Hospital Private
Limited, Davangere, at 5:45 a.m. by Lakkappa
Jetti(accused No.3 herein). The wound certificates of
accused No.3 herein, Lakappa at Ex.D.13 indicates
that he was examined at the Government Hospital at
Hadagali at 2.10 a.m. on 26.07.2010. Accused No.8-
Veerappa was examined on 05.08.2010 at 4 p.m. in
terms of Ex.D.14. accused No.7-Kadlenni Basappa
- 95 -
CRL.A No. 100101 of 2016
was examined at the Government Hospital at
Hadagali at 4.10 p.m. Thus, the only two people
who were examined around the same time as that of
the incident were accused No.3 herein, Lakappa and
accused No.2 herein, Kamaraj, the others being
examined nearly after 10 days.
57. In the above background, since it has been
contended by Shri C.H.Jadhav, learned Senior
Counsel that Cr.No.41/2010 and Cr.No.42/2010 are
complaint and counter-complaint respectively, it is in
fact on that basis, an application in IA No.1/2020
under Section 391 of the Cr.P.C. had been filed for
production of additional evidence. The same is not
disputed by the learned Additional SPP.
58. In the background of considering Cr.No.41/2010 and
Cr.No.42/2010 to be a complaint and counter-
complaint, what would be required to be decided by
this Court is as to who is the aggressor and who was
- 96 -
CRL.A No. 100101 of 2016
defending themselves. As also whether the fact as to
who is the aggressor is relevant or not.
59. Though it has been contended by Shri C.H.Jadhav
that the month of July being in monsoon, there was
no requirement for anybody to go to Grain threshing
yard. It is the evidence on the part of the accused
that they used to sleep in the Grain threshing yard.
In fact, the evidence also discloses that two of the
male members used to sleep in the house and the
others used to sleep in Grain Threshing yard and
they would take turns doing so. The family of the
complainant being a large family comprising of three
brothers, their wives as also their children who are
residing in a village, this contention of the
complainant cannot be outrightly rejected since the
purpose of the same appears to be to give privacy to
the other members who stay in the house.
60. In terms of the decision of the Full Bench State Of
Karnataka By Circle Inspector Of Police Vs.
- 97 -
CRL.A No. 100101 of 2016
Hosakeri Ningappa And Another(supra) of this
Court as also the Hon'ble Apex Court which has been
detailed hereinabove, this court while deciding an
appeal arising out of a complaint or a counter-
complaint cannot look into the evidence in the other
matter.
61. The Full Bench of this Court however has gone on to
say that if the said evidence is brought on record in
accordance with the law, the same could be looked
into. In the present matter, when the appeal was
pending an application under Section 391 of the
Cr.P.C. was filed which came to be allowed the
matter was sent back to the trial Court and Ex.D.5 to
17 marked. Despite an opportunity having been
provided to the Public Prosecutor to cross-examine,
by this Court, while allowing the application in IA
No.1/2020, the prosecution has chosen not to avail
the said opportunity and in fact has made a
statement before the trial Court that the Public
- 98 -
CRL.A No. 100101 of 2016
Prosecutor does not intend to cross-examine. Thus,
the prosecution has accepted the documents at
Ex.D.5 to Ex.D.17 and they have been brought on
record in a manner known to the law, there has been
no challenge to the documents or the contents
thereof.
62. If at all the prosecution wanted to question the
same and/or dispute the same, the prosecution could
have examined the witness who had marked the said
documents, bringing into question the contents of
the said documents. That not having been done,
even though the authors of the said documents have
not been examined, we could look into those
documents as held by the Full Bench of this Court.
63. In Cr.No.41/2010 there is an allegation made by
accused No.7-Kadlenni Basappa in the complaint filed
by him that the accused therein had barged into his
house and assaulted him and his family members
including accused No.2-Kamaraj. It is alleged that
- 99 -
CRL.A No. 100101 of 2016
Kamaraj was attacked with an axe, stick and stone
resulting in injury to his skull and subsequently
resulting in his death on which basis Cr.No.41/2010
was registered.
64. A perusal of the MLC indicates that his brother
accused No.3-Lakappa had informed the hospital that
the injury occurred at 11 a.m. at the residence of
accused No.2-Kamaraj. However, the complaint in
Cr.No.41/2010 alleges that the accused trespassed
into the house of accused No.7-Kadlenni Basappa
and assaulted everyone including accused No.2-
Kamaraj who came to the said house. Apparently,
the house of accused No.2-Kamaraj and the house of
accused No.7-Kadlenni Basappa are different. They
do not stay together. If that be so, it has not been
explained by the appellants in the above appeal as to
why such a statement had been made. The said
document having been produced and marked by the
appellants themselves. Even otherwise the
- 100 -
CRL.A No. 100101 of 2016
allegation is that the incident occurred in the grain
Threshing yard at 11 p.m. on 25.07.2010. The
Wound Certificate of K.Manjunath at Ex.D.11 also
indicates that he suffered injuries on account of the
assault on 25.07.2010 at 11 p.m. at his residence.
65. If that be so, it is not understood as to on what basis
accused No.7-Kadlenni Basappa had filed a complaint
on 26.07.2010 at 1 a.m. alleging that the accused
had barged into his house at 12 midnight and
assaulted him and his family members, including
accused No.2-Kamaraj at Ex.D.7 on which basis
Cr.No.41/2010 was registered. As per the said
complaint, Kamaraj had been injured in the house of
accused No.7-Kadlenni Basappa whereas as per the
wound certificate MLC he was injured in his own
house. The said contradiction has not been explained
thus leading to an irresistible conclusion that there is
a false statement made.
- 101 -
CRL.A No. 100101 of 2016
66. If that be so, the evidence would only point out to
the fact that when the complainants in
Cr.No.42/2010 were on the way to their grain
Threshing yard, the accused were indeed waiting for
them near the house of Kadlenni Basappa and
attacked them. If not for the same, the presence of
accused No.1-Eshwar, accused No.2-Kamaraj,
accused No.3-Lakappa, accused No.10-Basavaraj,
accused No.11-Nagarajappa and accused No.12-
Kadlenni Shivappa cannot be explained.
67. This Court in Criminal Petition No.1461/2018
(Mansoor and others Vs State of Karnataka and
Another) vide its order dated 01.06.2018 has held
at paragraph 7 as under:
"7. In this particular case, the argument of the
counsel for the petitioners that, the learned
investigation should have been conducted by the
Two Investigating Officers, is not acceptable.
Therefore, the proceedings are not vitiated by
the investigation done by the same Investigating
Officer in the two cases i.e., in a case and
counter case. However, the learned counsel is
right in submitting that the learned trial judge is
- 102 -
CRL.A No. 100101 of 2016
erroneously proceeding with the matter with the
help of the same public prosecutor attached to
the said court. In fact, the said aspect should be
taken into consideration by the learned Session
Judge and see that a separate prosecutor is
appointed for the purpose of conducting a
counter case. If the Sessions Judge is of the
opinion that the said case is a case and counter
case, if for the purpose of framing charges in a
counter case, the court has to hear arguments of
the counsel for the accused and as well as the
learned Public Prosecutor. In that context also, in
my opinion before framing of charges and before
recording the evidence of the witness, it is just
and necessary for the Sessions Judge to see that
a separate Public Prosecutor is appointed to
proceed with the counter case. Otherwise, the
trial may be vitiated and it may become an
incurable defect later."
68. The Hon'ble Apex Court in SUDHIR AND OTHERS
VS. STATE OF M.P reported in 2001 SCC (Cri)
387, more particularly, at paragraphs 8, 9, 10, 11,
12, 16 and 17 has held as under:
8. It is a salutary practice, when two criminal
cases relate to the same incident, they are tried
and disposed of by the same court by
pronouncing judgments on the same day. Such
two different versions of the same incident
resulting in two criminal cases are
compendiously called "case and counter case" by
some High Courts and "cross cases" by some
other High Courts. Way back in nineteen hundred
and twenties a Division Bench of the Madras High
Court (Waller, and Cornish, JJ) made a
suggestion (In Re Goriparthi Krishtamma - 1929
- 103 -
CRL.A No. 100101 of 2016
Madras Weekly Notes 881) that "a case and
counter case arising out of the same affair
should always, if practicable, be tried by the
same court, and each party would represent
themselves as having been the innocent victims
of the aggression of the other."
9. Close to its heels Jackson, J, made an
exhortation to the then legislature to provide a
mechanism as a statutory provision for trial of
both cases by the same court (vide Krishna
Pannadi vs. Emperor AIR 1930 Madras 190). The
learned judge said thus:
"There is no clear law as regards the
procedure in counter cases, a defect which the
legislature ought to remedy. It is a generally
recognized rule that such cases should be tried in
quick succession by the same Judge, who should
not pronounce judgment till the hearing of both
cases is finished."
10. We are unable to understand why the
legislature is still parrying to incorporate such a
salubrious practice as a statutory requirement
in the Code. The practical reasons for
adopting a procedure that such cross cases
shall be tried by the same court, can
be summarised thus: (I) It staves off the
danger of an accused being convicted before
his whole case is before the court. (2) It deters
conflicting judgments being delivered upon
similar facts; and (3) In reality the case and the
counter case are, to all intents and purposes,
different or conflicting versions of one incident.
11. In fact, many High Courts have reiterated
the need to follow the said practice as a
necessary legal requirement for preventing
conflicting decisions regarding one incident. This
court has given its approval to the said practice
in Nathi Lal & ors. vs. State of U.P. & anr. [1990
(Supp) SCC 145]. The procedure to be followed
in such a situation has been succinctly delineated
in the said decision and it can be extracted here:
- 104 -
CRL.A No. 100101 of 2016
"2. We think that the fair procedure to
adopt in a matter like the present where there
are cross cases, is to direct that the same
learned Judge must try both cross cases one
after the other. After the recording of evidence in
one case is completed, he must hear the
arguments but he must reserve the judgment.
Thereafter he must proceed to hear the cross
case and after recording all the evidence he must
hear the arguments but reserve the judgment in
that case. The same learned Judge must
thereafter dispose of the matters by two
separate judgments. In deciding each of the
cases, he can rely only on the evidence recorded
in that particular case. The evidence recorded in
the cross case cannot be looked into. Nor can the
judge be influenced by whatever is argued in the
cross case. Each case must be decided on the
basis of the evidence which has been placed on
record in that particular case without being
influenced in any manner by the evidence or
arguments urged in the cross case. But both the
judgments must be pronounced by the same
learned Judge one after the other."
12. How to implement the said scheme in a
situation where one of the two cases (relating to
the same incident) is charge-sheeted or
complained of, involves offences or offence
exclusively triable by a Court of Sessions, but
none of the offences involved in the other case is
exclusively triable by the Sessions Court. The
magistrate before whom the former case reaches
has no escape from committing the case to the
Sessions Court as provided in Section 209 of the
Code. Once the said case is committed to the
Sessions Court, thereafter it is governed by the
provisions subsumed in Chapter XVIII of the
Code. Though, the next case cannot be
committed in accordance with Section 209 of the
Code, the magistrate has, nevertheless, power to
commit the case to the court of Sessions, albeit
none of the offences involved therein is
exclusively triable by the Sessions Court. Section
323 is incorporated in the Code to meet similar
cases also. That section reads thus:
- 105 -
CRL.A No. 100101 of 2016
"If, in any inquiry into an offence or a trial
before a Magistrate, it appears to him at any
stage of the proceedings before signing
judgment that the case is one which ought to be
tried by the Court of Session, he shall commit it
to that Court under the provisions hereinbefore
contained and thereupon the provisions of
chapter XVIII shall apply to the commitment so
made."
16. The employment of the word "may" at one
place and the word "shall" at another place in the
same sub-section unmistakably indicates that
when the offence is not triable exclusively by the
Sessions Court it is not mandatory that he
should order transfer of the case to the Chief
Judicial Magistrate after framing a charge. In
situations where it is advisable for him to try
such offence in his court there is no legal
obligation to transfer the case to the Chief
Judicial Magistrate. One of the instances for not
making the transfer is when a case and counter
case have been committed to the Sessions Court
and one of those cases involves an offence
exclusively triable by the Sessions Court and the
other does not involve any such offence.
17. In the present case, the Sessions Judge
ought not have transferred the second case to
the Chief Judicial Magistrate as he did, but he
himself should have tried it in the manner
indicated in Nathi Lal (supra). To facilitate such a
procedure to be adopted we have to set aside
the order passed by the Sessions Judge in the
second case. We do so."
69. A division bench of this Court in ABDUL MAJID SAB
AND OTHERS VS. STATE OF KARNATAKA
reported in ILR 2010 KAR 1719 at paragraphs 25,
26, 27, 28, 29 and 35 has held as under:
- 106 -
CRL.A No. 100101 of 2016
"25. Initially, when the complaint of PW1 and
A2 was registered, it was in the nature of
a case and counter case. If for any reason
the I.O. has found that the complaint of
A.2 is baseless and filed 'B' report, it is
necessary that he should make that report
a part of the record in the final report in
question. In the column No.17 of the final
report submitted u/s 173 of Cr.PC the I.O.
has to give summary of the material facts
of the case and nature of complicity of the
accused with the offence.
26. In case and counter, in the final report
of both the cases, the I.O., has to
necessarily furnish all the documents
pertaining to the other case and should
explain the genesis of the incident
explaining whether it is a free fight
between two persons/groups and that
both are aggressors. The I.O. should state
whether one of the persons/groups is an
aggressor and that whether the other has
caused injuries in exercise of the right of
private defence. It is necessary that the
I.O. should explain the injuries on the
accused. The final report should
necessarily contain the above material to
enable the prosecutors to lead evidence
correctly and for the Judge to understand
the incident in a proper legal perspective
to understand the guilt of the accused.
27. It is well-settled principle in a case
and a counter the same I.O. should
investigate both the cases and should file
final report. The different prosecutors
should conduct prosecution, the same
Judge should try the cases simultaneously
- 107 -
CRL.A No. 100101 of 2016
and render separate judgments. It is a
judicial dicta that the Court should not
read/get influenced by the evidence
recorded in the other case, unless the said
material in the other case is marked as an
evidence in the case in question. To say
that the Court should not read/influenced
by the evidence recorded in the other case
under all circumstances would be a
perverse view and runs counter to the
logic of holding simultaneous investigation
by the same I.O. and trial by the same
Judge. Otherwise, it is impossible for the
Judge to appreciate the guilt of the
accused to find out whether both are
aggressors and both are guilty of indulging
in free fight or one of them is an aggressor
and the other caused injuries on the
accused in exercise of right of private
defence.
28. In this regard for useful benefit, the
provisions of Madras Police Standing
Orders pertaining to investigation of a
case and a counter in Rule-588A are
extracted hereunder:
"588-A: Charge sheets in cases and
counter cases: In a complaint and
counter complaint obviously arising out of
the same transaction the Investigating
Officer should enquire into both of them
and adopt one or the other of the two
courses, viz., (1) to charge the case
whether the accused were the aggressors
or (2) to refer both the cases if he should
find them untrue. When the Investigating
Officer proceeds on the basis of the
complaint it is his duty to exhibit the
- 108 -
CRL.A No. 100101 of 2016
counter complaint in the Court and also to
prove medical certificates of persons
wounded on the opposite sides. He should
place before the court a definite case
which he asks it to accept. The
Investigating Officer in such cases should
not accept in to one complaint and
examine only witnesses who support it
and give no explanations all for the
injuries caused to the other side. The truth
in these cases is invariably not in strict
conformity with either complaint and it is
quite necessary that all the facts are
placed before the court to enable it to
arrive at the truth and a just decision.
If the Investigating Officer
finds that the choice of either course is
difficult viz. to charge one of the two cases
or to throw out both, he should
seek the opinion of the
Public Prosecutor of the district and act
accordingly. A final report should be
sent in respect of the case referred as
mistake of law and the complainant or the
counter-complainant, as the case may be
should be advised about the disposal by a
notice in F.96 and to seek remedy before
the specific Magistrate, if he is aggrieved
by the disposal of the case by the Police."
29. We place on record that we have not
come across any single case so far where
the final reports in case and counter are
filed in the manner indicated above. The
imprudent and casual practice of
submitting final reports without reference
to relevant material of the connected case
would only result in improper prosecution
- 109 -
CRL.A No. 100101 of 2016
and many a time the truth of the incident
is not projected before the Court, which
ultimately result in unjust conviction or
unjust acquittal. The Karnataka Police
Manual does not lay down any guidelines
for the I.O. regarding the procedures to be
followed in the investigation of a case and
counter and for filing the final report. It is
high time that the necessary amendments
have to be effected to the Karnataka
Police Manual in this regard.
35. The Registry is directed to send a
copy of the judgment to the Home
Secretary, Director General of Police and
Hon'ble Law Minister to give effect to the
observations made in paras 26, 27 and 28
regarding the procedure to be followed by
the I.O. in a 'case and counter case' and
for effecting necessary amendments to the
Karnataka Police Manual."
70. In view of the above decisions, it is clear that the
same Investigating Officer should have investigated
both the cases and should have filed the final report.
Unfortunately in the present case, Crime No.42/2010
has been investigated by PW.15/CW.18-Nagappa,
whereas Crime No.41/2010 has been investigated by
one Prakash Rathode, CPI, Hadagali, even though
the incident has more or less occurred at the same
time as per both the complaints. Though in Crime
- 110 -
CRL.A No. 100101 of 2016
No.41/2010, it is alleged that the incident occurred
at midnight, in Crime No.42/2010, it is alleged that
the incident occurred at 10.30 p.m. The fact remains
that the complainants and the accused in both the
matters are one and the same, inasmuch as in Crime
No.42/2010, the complainants therein are the
accused in Crime No.41/2010 and the accused in
Crime No.41/2010 are the complainants in Crime
No.42/2010 or if not complainants, they are the
witnesses for the prosecution.
71. Such being the case, the Investigating Officer ought
to have been more vigilant and the investigation
should have been done by the same officer instead of
two officers, even though one was for lessor offence
and the other was for a heinous offence of murder.
72. If at all the Investigating Officer had been more
circumspect and had recognized the fact that the
accused and the complainants were one and the
same in the both matters, it would have led to
- 111 -
CRL.A No. 100101 of 2016
investigation of both the cases by one single
investigating officer and the truth could have come
out.
73. In the present case, unfortunately, the investigating
officer in Crime No.41/2010 has sought to prove his
case, while investigating officer in Crime No.42/2010
has sought to prove his case separately without any
regard for the truth of the matter and/or ascertaining
the veracity of all the witnesses and documents.
Both the investigating officers have proceeded as if
their case is true one and sought to prosecute the
matter.
74. In view of the same, in our considered opinion, the
accused have suffered prejudice, the true facts have
not come out in the investigation. This is also clear
from the fact that only the interested witnesses have
been examined in Crime No.42/2010, inasmuch as
PW.1/CW.1-Basavarajappa being the complainant,
PW.2/CW.2-Kantesh is the son of the complainant,
- 112 -
CRL.A No. 100101 of 2016
PW.3/CW.4-Rudrappa is the younger brother of the
complainant, PW.4/CW.3-Kariappa is another young
brother of the complainant, PW.5/CW.5-Girish is
another son of the complainant, PW.6/CW.6-
Bullamma is the mother of the complainant,
PW.7/CW.7-Shobhamma is the wife of the
complainant, PW.8/CW.8-Ashok is stated to have
pacified the fight and the other witnesses are the
official witnesses. Though the witnesses have
spoken of various third parties being present at spot,
none of those third parties have been examined in
the matter.
75. Though PW.1/CW.1-Basavarajappa has stated that
CW.11-Shivappa, CW.9-Manjappa, CW.10-
Virupakshappa and PW.8/CW.8-Ashok came to the
spot and pacified the quarrel, it is only PW.8/CW.8-
Ashok who had been examined, while the other third
party witnesses have been examined. PW.2/CW.2-
Kantesh has also stated that apart from PW.8/CW.8-
- 113 -
CRL.A No. 100101 of 2016
Ashok and CW.10-Virupakshappa, there were few
others who were present at spot. Neither CW.10-
Virupakshappa nor the other persons as stated have
been examined or their statements taken.
PW.3/CW.4-Rudrappa has stated that PW.8/CW.8-
Ashok, CW.10-Virupakshappa and CW.11-Shivappa
came to the spot within 5 minutes after the fight
having been broken out. Again, CW.10-
Virupakshappa and CW.11-Shivappa have not been
examined. PW.4/CW.3-Kariappa has stated that
about 50 people had gathered at the place of the
altercation. However, none of those persons have
been examined or their statements obtained.
PW.5/CW.5-Girish has stated that CW.11-Shivappa,
CW.9-Manjappa, Garvangarappa, PW.8/CW.8-Ashok,
CW.10-Virupakshappa came and pacified the fight.
76. As observed above, only PW.8/CW.8-Ashok has been
examined and none of the others were examined.
PW.8/CW.8-Ashok has stated that there were many
- 114 -
CRL.A No. 100101 of 2016
people present when the fight broke out at 10.30
p.m. However, none of them have been examined.
77. It is rather shocking that despite the witnesses
having mentioned about several other persons being
present who could have been termed as independent
witnesses, it is only the family members and/or
related parties who have been examined in the
matter. Thus, the creditability of this evidence is in
doubt.
78. The other aspects which are again contradictory
and/or not matching with the evidence of other
witnesses is that, inasmuch as PW.1/CW.1-
Basavarajappa, PW.2/CW.2-Kantesh and
PW.3/CW.4-Rudrappa have stated that CW.11-
Shivappa, CW.9-Manjappa, CW.10-Virupakshappa
and PW.8/CW.8-Ashok have sent the injured to the
hospital, whereas PW.4/CW.3-Kariappa,
PW.5/CW.5-Girish, PW.6/CW.6-Bullamma,
PW.7/CW.7-Shobhamma and PW.8/CW.8-Ashok have
- 115 -
CRL.A No. 100101 of 2016
stated that it was the police who sent them to the
hospital and infact, it the police who took them to
the hospital.
79. There is also discrepancy as regards the time that
the complainants spent in the hospital. PW.3/CW.4-
Rudrappa does not remember how many days he
was hospitalized, but he was hospitalized and treated
as an inpatient and all the injured were discharged
together. PW.4/CW.3-Kariappa states that he was in
the hospital for about 3 days, PW.5/CW.5-Girish
states that they were in the hospital for 4 days,
PW.7/CW.7-Shobhamma states that they were in the
hospital for 8 days. The injured themselves, who are
related to each other, are unsure of how long they
had been hospitalized, inasmuch as the lowest being
3 days and the highest being 8 days, which is
completely improbable and indicates that the
witnesses are either tutored or they do not know the
- 116 -
CRL.A No. 100101 of 2016
facts of the case and/or that they were not there at
the scene of occurrence.
80. Ex.P7 to Ex.P11 are the wound certificates. In all the
aforesaid wound certificates, the time of the incident
is stated to be 25.07.2010 at 11.00 p.m., which also
is a departure from the allegation that the incident
happened between 10.00 p.m. to 10.30 p.m.
81. In the wound certificates, the person who is stated to
have assaulted the injured is stated to be Rajshekar
B. Jetti who had used a stick and an axe.
Shockingly, the said Rajshekar B.Jetti has not been
arraigned as an accused in the proceedings. The
reason for the same apparently is that Rajashekar B.
Jetti was working in Karnataka State Road Transport
Corporation and was posted in Ranebennur at the
time of the incident. Accepting either of these two
situations is not feasible. When the complainants
having stated that Rajashekar B. Jetti had assaulted
them, he has not been arraigned as an accused. If
- 117 -
CRL.A No. 100101 of 2016
during the investigation, it was found that he was
stationed at Ranebennur, then the entire allegations
made in the complaint as also statement recorded in
the wound certificate are proven to be false.
82. Thus, these wound certificates also cannot be looked
into by us, inasmuch as they are based on false
information. Though the wound certificates require
X-Ray to be taken as regards the injuries, it is not
clear from the evidence on record, if infact X-Rays
had to be taken and since the said X-Rays definitely
have not been produced before the trial Court or
before this Court, it is to be presumed that there are
no X-Rays that were taken and the reference made
in the wound certificate are only on paper. The
shocking aspect of this investigation is that, when X-
Rays are ordered to be taken or recommended to be
taken by the concerned doctor, the investigating
officer has not even bothered to obtain the said X-
Rays when the offences alleged are under Sections
- 118 -
CRL.A No. 100101 of 2016
143, 147, 148, 324 r/w 149 of the IPC. This again
establishes the callous nature of the investigation
which has been conducted by the concerned
investigating officer.
83. The conduct of Investigation in the manner done, in
our considered opinion has caused prejudice to the
Accused, entitling them to benefit of doubt.
84. In the light of the above, all the prosecution
witnesses being interested witnesses being the
relatives of the complainant and there being no
independent corroboration of the said evidence by
independent third party witnesses, we are of the
considered opinion that the prosecution has not been
able to drive home the guilt of the accused, more so
when they were third parties who were present at
the spot but have not been examined nor their
statement recorded. The trial Court has blindly
believed the version of the prosecution or rather held
- 119 -
CRL.A No. 100101 of 2016
that there is nothing to disbelieve the version of the
prosecution witnesses.
85. The trial Court ought to have appreciated the fact
that there is no evidence on record which could
prove beyond reasonable doubt about the
involvement of the accused in the said offence. The
contradictions as also discrepancies which have been
pointed out above would lead only to one conclusion,
that the prosecution has not been able to drive home
the guilt of accused, maybe on account of the
investigation not being proper and/or prosecution
was not conducted properly. Be it for whatever
reasons, the discrepancies and contradiction detailed
above can only lead to one conclusion that the
prosecution is unable to prove the guilt of the
accused. In view thereof, we pass the following:
ORDER
i) The appeal as filed is allowed.
- 120 -
CRL.A No. 100101 of 2016
ii) The accused are acquitted of the offences
under Sections 148 and 307 read with
Section 149 of the IPC.
iii) Since the accused are on bail, no order needs
to be passed thereon. The bail bonds stand
discharged.
iv) The fine amount deposited is directed to be
refunded to the respective accused.
v) In view of the callous manner in which the
investigation has occurred, we issue the
following directions.
a) Where complaints and counter
complaints are filed, both are to be
investigated by the same Investigating
Officer.
b) In all matters, where there are
complaints, which have been filed
though they may be filed as stand alone
- 121 -
CRL.A No. 100101 of 2016
complaints and not complaint and
counter-complaint, the police officers
and/or the investigating officers ought
to apply their mind to see if the crime
alleged against by either of the parties
is more or less at the same time as also
to appreciate if the accused in one
matter is the complainant in the other
matter and vice versa, in such cases, a
single investigating officer has to
investigate both the matters and the
same should not be investigated by two
different investigating officers.
c) If there was one investigating officer for
both offences and one of the offences
gets to be serious or heinous requiring
the investigation to be conducted by a
senior officer, in that event the senior
officer will have to investigate both the
- 122 -
CRL.A No. 100101 of 2016
offences, assisted by the earlier
Investigating Officer.
d) During the course of investigation, the
investigating officer is required to
ascertain the truth of the matter and
not take sides with either of the parties.
The investigating officer has to ascertain
the veracity of the complaints, which
has been filed by both the parties,
conduct a comprehensive investigation
in both complaints as regards the guilt
of the concerned. It is not necessary
that both of them have to be guilty.
There could be a possibility of one set of
complainants being guilty and other
being innocent. In such case, the
charge sheet would have to be filed only
against the guilty person/s and not
against the person/s who are not guilty.
- 123 -
CRL.A No. 100101 of 2016
If however, the investigating officer
were to come to a conclusion that both
the parties are guilty, then charge sheet
could be filed against both the parties.
e) The Director General of Police, State of
Karnataka is directed to issue necessary
directions/guidelines/Standard
operating Procedure in terms of the
above.
f) The Additional Registrar General is
directed to send a copy of this
judgement to the Director General of
Police to give effect to observation
made in this judgment as also in Abdul
Nazeeb Sab's case. The Director
General of Police to formulate and issue
necessary guidelines/Standard
Operating Procedure for the
Investigating Officers to be followed
- 124 -
CRL.A No. 100101 of 2016
while investigating a complaint and a
counter-complaint. Such guidelines to
be circulated to all the investigating
Officers and whenever training is held,
to also cover this aspect in such
training.
g) A copy of the guidelines framed by the
Director General of Police, State of
Karnataka to be placed on record within
a period of 12 weeks from today.
vi) Whenever a complaint and counter complaint
or appear to be a complaint and counter
complaint come up for trial, the trial court to
conduct the same as per the directions of the
Full Bench in STATE OF KARNATAKA BY
CIRCLE INSPECTOR OF POLICE VS.
HOSAKERI NINGAPPA AND ANOTHER
reported in ILR 2012 KAR 509 as under:
- 125 -
CRL.A No. 100101 of 2016
a) The procedure to be adopted in case and
counter case is that the investigation
should be conducted by the same
Investigating Officer and the
prosecution should be conducted by two
different Public Prosecutors.
b) The trial should be conducted by the
same Court. After recording the
evidence and after hearing the
arguments, the judgment should be
reserved in one case and thereafter the
evidence should be recorded and the
arguments should be heard and
Judgment reserved in the other case.
c) The arguments in both the matters shall
be heard by the same Learned Judge.
The judgments should be pronounced
by the same Judge simultaneously i.e.,
one after the other.
- 126 -
CRL.A No. 100101 of 2016
d) In deciding each case, the Trial Judge
can only rely on the evidence recorded
in that particular case and the evidence
recorded in the cross case (or counter
case) cannot be looked into. The Judge
shall not be influenced by the evidence
or arguments in the cross case.
However, if the evidence recorded in
one case is brought on record in another
case in accordance with the procedure
known to law, then, such evidence
which is legally brought on record can
be looked into. Except in such situation,
the evidence recorded in one case
cannot be looked into in another case.
e) The additional Registrar General of this
bench is directed to once again circulate
the judgement in STATE OF
KARNATAKA BY CIRCLE INSPECTOR
- 127 -
CRL.A No. 100101 of 2016
OF POLICE VS. HOSAKERI
NINGAPPA AND ANOTHER reported
in ILR 2012 KAR 509 as also this
judgement to all judges in the state of
Karnataka, dealing with Criminal
matters.
vii) Whenever two appeals are filed arising out of
a complaint and counter complaint or appear
to be a complaint and counter-complaint, the
Appellate Court is to follow the following
procedure:
a) In each of the appeals a different
prosecutor to appear and argue on
behalf of the State,
b) Each appeal would be required to be
independently heard.
c) After arguments are heard in one appeal
the judgment is required to be reserved,
- 128 -
CRL.A No. 100101 of 2016
d) After argument is heard in the second
appeal the judgment is to be reserved,
e) Two separate judgments are required to
be passed in each of the appeals,
f) While passing judgments in each of the
appeals, the Appellate Court cannot look
into the evidence led or be influenced by
the arguments advanced in the other
appeal.
g) However, if the evidence recorded in
one case is brought on record in another
case in accordance with the procedure
known to law, then, such evidence
which is legally brought on record can
be looked into. Except in such situation,
the evidence recorded in one case
cannot be looked into in another case.
- 129 -
CRL.A No. 100101 of 2016
h) Suffice it to say that each appeal has
to be decided on the basis of the
evidence and the law applicable to
that particular appeal.
i) If the Appeal is heard by a Division
Bench the same judge to pass
judgements in both the Appeals.
j) The Additional Registrar General,
is directed to send a copy of
this judgment to the Director of
Public Prosecutions to enable the
said director to formulate the
necessary guidelines/Standard
Operating Procedure for the Public
Prosecutors to be followed while
prosecuting a complaint and counter-
complaint. Such guidelines to be
circulated to all the prosecutors and
- 130 -
CRL.A No. 100101 of 2016
whenever training is held, to also
cover this aspect in such training.
k) A Copy of the guidelines framed by the
Director of Prosecutions, State of
Karnataka to be placed on record within
a period of 12 weeks from today.
Sd/-
JUDGE
Sd/-
JUDGE
JM/-
