Karnataka High Court
Chalapathy @ Venkatachalapathy vs The State By on 29 March, 2022
Bench: Mohammad Nawaz
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL No.552 OF 2011
BETWEEN:
CHALAPATHY @ VENKATACHALAPATHY,
S/O.CHIKKAMUNIVENKATAPPA,
AGED ABOUT 33 YEARS,
R/AT.GANGARASANAHALLI VILLAGE,
KASABA HOBLI, KOLAR TALUK,
KOLAR DISTRICT. ...APPELLANT
[BY SRI.VIVEK N, ADVOCATE FOR
SRI RAHUL S REDDY, ADVOCATE]
AND:
THE STATE BY
KOLAR RURAL POLICE STATION,
REPRESENTED BY S P P,
HIGH COURT OF KARNATAKA,
BANGALORE. ... RESPONDENT
[BY SRI.KRISHNA KUMAR K.K, HCGP]
****
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., PRAYING TO SET ASIDE THE ORDER DT:13.4.11
PASSED BY THE I ADDL.S.J., KOLAR, C/c P.O., FTC-I, KOLAR IN
S.C.NO.128/10 - CONVICTING THE APPELLANT/ACCUSED FOR THE
OFFENCE P/U/S 326 R/W SEC. 34 OF IPC.
AND THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO S.I.
FOR A PERIOD OF TWO YEARS FOR THE OFFENCE P/U/S 326 R/W
SEC. 34 IPC. FURTHER ACCUSED NO.2 SHALL PAY FINE OF
RS.2,000/-. IN DEFAULT, HE SHALL UNDERGO S.I. FOR A PERIOD
OF 3 MONTHS AND ETC.,
2
THIS CRIMINAL APPEAL COMING ON FOR HEARING
THROUGH VIDEO CONFERENCE/PHYSICAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by accused No.2 against
the Judgment and order dated 13.04.2011 passed by the
Court of I Additional Sessions Judge, Kolar in
S.C.No.128/2010.
2. Vide impugned judgment, the trial Court has
convicted the appellant/accused No.2 for offence
punishable under Section 326 r/w 34 of IPC and
sentenced him to undergo simple imprisonment for a
period of two years and to pay fine of Rs.2,000/- and in
default of payment of fine, to undergo simple
imprisonment for a period of three months.
3. Heard both sides and perused the material on
record.
4. Charges were framed against accused Nos.1
to 4 for offences punishable under Sections 326, 307 r/w
34 of IPC. The trial Court has found accused Nos.1, 3
and 4 not guilty of the charged offences and convicted
only accused No.2 for the offence punishable under
Section 326 r/w 34 of IPC. The trial Court has opined
that PWs.2 to 5 have nowhere stated in their evidence
about the accused attempting to commit murder of PW.2
and in the absence of such material, it is not proper to
convict the accused for the offence punishable under
Section 307 IPC.
5. At the outset, it is relevant to observe that
when the trial Court has acquitted accused Nos.1, 3 and
4 of all the charges, convicting accused No.2 under
Section 326 of IPC with the aid of Section 34 does not
arise. However, the trial Court has assigned reasons to
come to the conclusion that accused No.2 has committed
an offence under Section 326 of IPC.
6. The question which arises is, as to whether
the prosecution has been able to establish the guilt of
the appellant/accused for offence punishable under
Section 326 of IPC, beyond reasonable doubt.
7. It is the specific case of the prosecution that
on account of civil dispute between the parties, on
20.09.2009 at about 6.30 a.m., in land bearing Sy.No.81
of Gangarasanahalli village, Kasaba Hobli, Kolar Taluk,
the accused persons picked up quarrel with PW.2 and
assaulted him with long, chopper, club, stone and also
with hands and inflicted grievous injuries to him.
8. The prosecution has got examined PWs.1 to 6
and got marked documents Exs.P1 to 6 and MOs.1 to 9
to establish its case. The defence got marked Exs.D1 to
D5 i.e, portion of the statements of PWs.1, 3 and 4.
9. The incident took place on 20.09.2009 at
about 6.30 a.m. The injured was shifted to R.L.Jalappa
Hospital, wherein he was examined by PW1-Doctor at
10.40 a.m. and he noticed the following injuries:
1. Cut lacerated wound measuring 10 cm x
7 cm over left elbow lateral aspect, exposing bone,
and soft tissue.
2. Cut lacerated wound measuring 8cm x 4 cm
over lateral aspect of left fore arm 6 cm above wrist
joint with fracture of left ulna over lower 1/3rd,
unable to move left hand fingers.
10. PW1-Doctor has opined that injury No.1 is
simple in nature and injury no.2 is grievous in nature.
The wound certificate is marked as Ex.P1.
11. PW2 is the victim and he is the first
informant. PWs.2 to 5 are the eye witnesses to the
incident in question. PW3 is the wife of PW2.
12. As per Ex.P2-complaint lodged by PW2,
accused No.1 assaulted with a long on his left hand,
accused No.2 assaulted with a chopper on his left hand
causing grievous injuries to him, accused No.3
assaulted with a club on his right hand, accused No.4
assaulted him with stone on his back and also
instigated others.
13. In his evidence, PW1 has deposed that
accused No.1 assaulted him with a long on his left
shoulder, accused No.2 assaulted with a chopper on
his left forearm, accused No.3 assaulted with a club on
his right hand and accused No.4 hit him with stone on
his back. When he screamed, his wife i.e., PW3 as well
as the other two witnesses PWs.4 and 5 who were
working in the nearby lands came and pacified the
quarrel and then shifted him to R.L.Jalappa Hospital.
The Police came to the hospital and recorded his
statement.
14. PW6-PSI has stated that he received a
memo from the R.L.Jalappa Hospital at about 1.00
p.m. on 20.09.2009 and he immediately went to the
Hospital and recorded the statement of PW2 and
thereafter returned to the police station and registered
the case and issued FIR-Ex.P6 to the jurisdictional
Court. He has further stated that on the same day at
about 2.45 p.m. he went to the spot and prepared the
spot mahazar-Ex.P5 and seized the weapons which are
marked as MOs.1 to 4 and other articles.
15. The trial Court having appreciated the oral
and documentary evidence on record, has come to the
conclusion that the evidence on record is not sufficient
to convict accused Nos.1, 3 and 4 and hence, the said
accused are acquitted. To come to the said conclusion,
the trial Court has taken into consideration the MLC
Register-Ex.P4 wherein the name of accused No.2 is
shown as assailant. It is observed by the trial Court
that the name of accused Nos.1, 3 and 4 do not find a
place either in Ex.P3 or Ex.P4 and in the absence of
such entries, it is not proper to convict the said
accused. It is further observed that PWs.2 to 4 have
deposed about the acts committed by accused Nos.1, 3
and 4 but there is no cogent and corroborative
evidence against them. Further, the trial Court has
come to the conclusion that due to the assault made
by accused No.2 with chopper, PW2 sustained fracture
of left ulna over lower 1/3rd and therefore, the
prosecution has proved the case against him beyond
all reasonable doubt.
16. PWs.2 to 5 have all spoken about the overt
acts of accused Nos.1 to 4. Against acquittal of
accused Nos.1, 3 and 4, there is no appeal preferred
by the State.
17. A perusal of Ex.P2-complaint clearly goes to
show that PW2, injured has alleged that both accused
Nos.1 and 2 assaulted him on his left hand. However,
in the evidence, he has stated that accused No.1 has
assaulted on his shoulder and accused No.2 assaulted
on the forearm. Contrary to the same, PW3 has stated
in her evidence that accused No.1 assaulted PW2 with
long on his forearm and accused No.2 assaulted on the
left hand shoulder with chopper. According to
PW1-Doctor, who examined the injuries sustained by
PW2, injury No.1 is simple in nature and injury No.2 is
grievous in nature. As per Ex.P1-wound certificate,
injury No.1 is on the elbow lateral aspect which
according PW1 is caused by accused No.1 and injury
No.2 is on the lateral aspect of left forearm which is
caused by accused No.2. However, if the evidence of
PW3 is taken into consideration, then injury No.1 is
caused by accused No.2 and injury No.2 which is
grievous in nature, is caused by accused No.1.
18. Another aspect is that PW1 has opined that
there is a fracture of left ulna over lower 1/3rd in
respect of injury No.2. However, the prosecution has
not produced the X-ray report to show that the injured
has sustained fracture of left ulna. There is no material
except the wound certificate to show that PW2
sustained grievous injuries. According to PW2-injured,
he was operated and a rod was inserted in his hand.
Though he has stated that he has got the documents,
he admitted that he has not given the documents to
the police. The prosecution has not produced or
marked any such documents to prove that PW2 was
operated and a rod was inserted to his hand. Even
PW.1 has also not stated about any such surgery
conducted on PW.2 or insertion of a rod in his hand.
In the absence of any acceptable and cogent material
to substantiate that PW2 has sustained any grievous
injuries, the trial Court was not proper in convicting
the accused for the said offence.
19. According to PWs.2 and 3 and other
prosecution witnesses, the weapons were blood
stained and were seized at the instance of the accused.
On the other hand, even according to the prosecution
weapons were snatched from the accused and at the
time of conducting spot mahazar, the weapons-MOs.1
and 2 were handed over to the police. The spot
mahazar is marked as Ex.P5. It is specifically stated in
Ex.P5 that the weapons were not blood stained.
20. The incident has taken place on account of
civil dispute between the parties. PW2, in his
cross-examination, has admitted that there is a long
standing enmity between the accused and himself. He
has further admitted that there was a complaint lodged
against him by accused No.2 alleging that he along
with his wife (PW3), Ashok (PW5),
Narayanaswamy (PW4) and Thayamuniyamma, mother
of PW5 assaulted and caused grievous injuries to him.
PW2 has admitted that the said case is pending in
C.C.No.97/2010. Even PW6-Investigation Officer has
admitted in his cross-examination that on the same
day there was a case registered against PW2 and
others on the basis of a complaint lodged by
accused No.2, in Cr.No.298/2009 and in the said case,
charge sheet was also filed. None of the prosecution
witnesses including PW2 have mentioned about the
said case registered against them, on the other hand
the same is suppressed.
21. In the background of a civil dispute between
the parties and for the reasons stated supra, it cannot
be held that the prosecution has been able to establish
the guilt of the appellant beyond all reasonable doubt.
The appellant is entitled for benefit of doubt.
Accordingly, the appeal succeeds. Hence, the
following:
ORDER
i. The appeal is allowed.
ii. The Judgment and order dated 13.04.2011
passed by the Court of I Additional Sessions Judge,
Kolar in S.C.No.128/2010 convicting and sentencing
the appellant/accused No.2 is set aside.
iii. Accused No.2 is acquitted of the offence
punishable under Section 326 of IPC. His Bail bonds
shall stand cancelled.
Sd/-
JUDGE
TL
