Karnataka High Court
State Of Karnataka vs Sri Santhosh Nayak on 5 December, 2023
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CRL.A No. 1137 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 1137 OF 2015
BETWEEN:
STATE OF KARNATAKA,
THROUGH THE P.S.I OF KARKALA
TOWN POLICE STATION,
KARKALA - 574 104.
...APPELLANT
(BY SRI. M.R. PATIL, HCGP)
AND:
1. SRI. SANTHOSH NAYAK,
AGED 41 YEARS,
S/O ACHUTHA NAYAK,
R/O ANGADI MANE, NEERE VILLAGE,
KARKALA TALUK - 574 104.
2. SRI. VISHWANATHA RAO,
AGED 40 YEARS,
Digitally signed
by SANDHYA S S/O LAXMAN RAO,
Location: High R/O BALAYYA NIVASA,
Court of NEERE VILLAGE,
Karnataka
KARKALA TALUK - 574 104.
3. SRI. JAGADISHA NAYAK,
AGED 37 YEARS,
S/O KRISHNA NAYAK,
R/O BEHIND SHARADA VEDIKE,
NEERE VILLAGE,
KARKALA TALUK - 574 104.
...RESPONDENTS
(BY SRI. K. PRASANNA SHETTY, ADVOCATE FOR R3;
VIDE ORDER DATED 08.06.2023, APPEAL AGAINST R1 &
R2 ABATES)
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CRL.A No. 1137 of 2015
THIS CRL.A IS FILED U/S 378(1) AND (3) OF CR.P.C
PRAYING TO i) GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER DATED 03.06.2015 PASSED BY THE
PRL. CIVIL JUDGE AND JMFC, KARKALA IN C.C.NO.270/2008
ACQUITTING ACCUSED/RESPONDENTS FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 324, 427, 447, 504 AND 506
R/W 34 OF IPC AND SET ASIDE THE JUDGMENT AND ORDER
DATED 03.06.2015 PASSED BY THE PRL. CIVIL JUDGE & JMFC,
KARKALA IN C.C.NO.270/2008 ACQUITTING
ACCUSED/RESPONDENTS FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 324, 427, 447, 504 AND 506 R/W 34 OF IPC
AND ETC.
THIS APPEAL, COMING ON FOR ARGUMENTS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The State has preferred this appeal against the
judgment of acquittal passed by the trial Court in
C.C.No.270/2008 dated 03.06.2015 on the file of Prl. Civil
Judge and JMFC, Karkala.
2. The rank of the parties in this appeal are
referred in the same rank as referred by the Trial court.
3. The brief facts of the prosecution case are that:
The accused having common object to commit the
offence came near the house of complainant/PW.1 situated
at Neere Village of Karkala Taluk on 17.05.2007 at about
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10.00 p.m. and voluntarily caused simple hurt to PW.1
Suresh Mallya by throwing stones on his chest and also
destroyed the tiles of house of PW.1. Accused also
trespassed into the house of PW.1, abused him in filthy
language and threatened him with dire consequences.
Accordingly, accused have committed the offences
punishable under Sections 447, 427, 324, 504, 506 r/w 34
of IPC.
4. After investigation, the Investigating Officer had
submitted the charge sheet for the aforesaid offences and
after taking cognizance against the accused for the
aforesaid offences, summons was issued to the accused.
In response to the summons, accused appeared before the
trial Court and were enlarged on bail. The charges were
framed by the trial Court for the alleged commission of
offences. Same were read over and explained to the
accused. Having understood the same, accused pleaded
not guilty and claimed to be tried.
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5. To prove the guilt of the accused, 11 witnesses
were examined as PWs.1 to 11 and marked four
documents as Exs.P1 to P4. Four material objects were
marked as MOs.1 to 4. On closure of prosecution side
evidence, statement of accused under Section 313 of
Cr.P.C. was recorded. As to the evidence appeared
against the accused, accused had totally denied the
evidence of prosecution witnesses, but they did not choose
to lead any defence evidence on their behalf. On hearing
the arguments, the trial Court has acquitted the accused
for the alleged commission of offences. Being aggrieved
by this impugned judgment of acquittal, the State has
preferred this appeal.
6. Sri.M.R.Patil, learned High Court Government
Pleader has submitted his arguments that the trial Court
has not properly appreciated the evidence of PW.1 and the
contents of Exs.P1 and 2. The trial Court has also not
properly appreciated the evidence of PW.2 Vivekananda
Malya and PW.3 Smt. Shalini Mallya, who are the son and
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wife of PW.1. They have corroborated the evidence of
PW.1. The trial Court has not properly appreciated the
evidence of prosecution witnesses in accordance with law
and facts. On all these grounds, he sought for allow this
appeal.
7. Learned counsel for the accused/respondents
has submitted his arguments that PWs.1 to 5 are the
interested witnesses. There was a civil suit between the
accused and PW.1 prior to this alleged incident. Prior to
registration of FIR against the present accused,
accused/respondents had filed a complaint against PW.1
for the commission of offences punishable under Sections
324, 506 and other offences. Only after registration of
that FIR, as a counter blast, the present PW.1 has lodged
a false complaint against these accused. During the
pendency of this appeal, respondent Nos.1 and 2 have
died and the appeal already abated against them vide
Court order dated 08.06.2023. The trial Court has properly
appreciated the evidence on record in accordance with law
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and facts and there are no grounds to interfere with the
impugned judgment of acquittal and sought for dismissal
of the appeal.
8. Having heard the arguments on both sides, the
following points would arise for my consideration:
1. Whether the State has made out any grounds
to interfere with the impugned judgment of acquittal?
2. What order?
9. My answer to the above points are under:
Point No.1 : Negative;
Point No.2 : As per final order.
10. I have carefully examined the materials placed
before this Court. On the basis of the complaint filed by
PW.1-Suresh Mallya, Karkala Town Police have registered
a case in Crime No.73/2007.
11. On the basis of the complaint filed by PW1
Suresh Mallya, the Karkala Town police have registered
the case in Crime No.73/2007 against accused No.1
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Vishwanath Nayak, accused No.2 Santhosh Nayak,
accused No.3 Jagadish Nayak and others for the
commission of offences punishable under Section 143,
147, 504, 506, 324, 447 read with Section 149 of IPC and
submitted the FIR to the Court as per Ex.P4 on
19.07.2017. After investigation, Investigating Officer has
submitted the charge sheet against the accused for the
commission of offences punishable under Section 447,
427, 324, 504, 506 read with Section 34 of IPC against
accused Nos.1 to 4. The I.O has not submitted the charge
sheet against other four accused, accused No.1 Ashok
Kumar Shetty S/o. Linappa Sheety, accused No.2 Pradeep
Nayaka S/o. Damodhara Nayaka accused No.3 Damodhara
Nayaka S/o. Govinda Nayaka and accused No.4 Mahesh
shetty S/o.Jayramshetty, as there was no evidence as
against them.
13. It is alleged by the prosecution that on
17.05.2007 at 10.00 p.m. near Neere Post office, Neere
village, Karkala Taluk, the accused Nos.1 to 3 having
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common object pelted stones on the chest and abdomen
of PW1 caused simple injuries to him. The accused have
also belted the stones on the tiles, which caused loss of
Rs.100/- to the PW1 and the accused have also trespassed
into the Court yard of house No.2/97, which is the
residential house of PW1 and abused him in filthy
language and also threatened to the life of PW1 causing
criminal activity by him, thereby committed the offences
punishable under Section 447, 427, 324, 504, 506 read
with Section 34 of IPC.
14. With regard to the commission of offence
punishable under Section 447 is concerned, it is the case
of the prosecution that all the accused having common
object have trespassed door No.2/97 of the residential
house of PW1, which is situated in Neere Village, Karkala
Taluk. To substantiate this, the Investigating Officer has
not produced any document to show that the PW1 was
residing in the door No.2/97 at the relevant point of time.
The investigating officer who has filed the charge sheet
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against the accused PW-11-B.S.Satish, Circle Inspector,
Sulya has not whispered anything as to the non-
production of the relevant materials to prove the fact that
the PW1 was residing in the door No.2/97 of Neere village,
even he has not explained anything about non-production
of relevant materials to show that the door No.2/97, which
belongs to PW1 or others. Accordingly, prosecution has
failed to prove the guilt of the accused punishable under
Section 447 read with Section 34 of IPC.
15. With regard to the offence punishable under
Section 427 is concerned, it is the case of the prosecution
that all the accused having common object have pelted
the stones to the tiles of the residential house of PW1 i.e.,
house No.2/97. This Court has already held that the
prosecution has failed to prove the fact that the PW1 was
residing in the house No.2/97, prosecution has also not
placed any material to show that the house No.2/97
belongs to PW1. Accordingly, prosecution has failed to
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prove the offence punishable under Section 427 read with
Section 34 of the IPC.
16. With regard to the offence punishable under
Section 324 read with 34 of IPC is concerned, all the
accused having common object have assaulted the PW1 on
his chest and abdomen with the stones causing voluntarily
simple hurt to PW1. The alleged incident took place on
17.05.2007 at 22.00 hours. PW1 had lodged a complaint
to the police on 18.05.2007. On the basis of his complaint-
Ex.P1 the Karkala town police have registered the case in
Crime No.73/2007 against accused Nos.1 to 3 and others
for the commission of offences punishable under Sections
143, 147, 504, 506, 324, 447 read with Section 149 of IPC
and submitted the FIR to the Court on 19.05.2011. Ex.P3
is the wound certificate of PW1-K.Suresh Mallya, which
reveals that the PW1 admitted to the hospital with the
history of assault by Vishwanath Nayak, Santhosh Nayak
and Jagadish Nayak with stone at about 10.00 p.m. on
17.05.2007 and the injured Suresh Mallya examined by
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the doctor on 18.05.2007 at 1.45 A.M. On examination of
his injuries the Medical Officer, who was examined as PW4
has found the injuries as shown in Ex.P3 which reads as
hereunder:
1. "On contusion of 3 1/2 cm x 3 cm over
right side of the abdominal wall.
Contusion is bounded by abrasion. Bright
red in color.
2. Abrasions with contusion of 1/2 cm x 1/2
cm over left side of the chest 6 cm from
the midline, 3cm above 2 media to left
nipple. Tenderness over underlying rib
(left)."
17. Doctor has opined that the injuries Nos.1 and 2
are simple in nature. PW6 Dr.R.K.Joshi has deposed in his
evidence as the contents of wound certificate of Ex.P3.
Though PW1 has admitted to the hospital with the history
of assault, the PW6 has not registered the case as medico
legal case and intimate the same to the concerned police.
PW6 has not whispered anything as to non-registration of
case as medico legal case. Even I.O has not explained
anything in this regard. The prosecution also not explained
anything as to the delay in filing the complaint and also
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delay in submitting the FIR to the Court, which will create
reasonable doubt as to the alleged incident, apart from
this if really accused Nos.1 to 3 have assaulted to PW1 as
alleged by the prosecution with granite stones on chest
and abdomen, PW1 with these two granite stones of M.O
Nos.3 and 4 definitely he would have sustained from cut
injuries. But, as per would certificate, PW1 has sustained
only injury of 3 1/2 cm x 3 cm over right side of the
abdominal 6 cm from the middle line towards left side of
the chest, which also create reasonable doubt as to the act
of the accused. In the evidence of PW1 he has stated that
the accused Nos.1 to 3 along with other accused came
near their house by holding sword and clubs in their hands
and PW1 has not stated that which accused has assaulted
him with stone and he has also not whispered about other
four accused who were involved in the incident.
Accordingly, that there is a material omissions and
contradiction in the evidence of prosecution witnesses
pertaining to the offence punishable under Section 324
and also other offences. The trial Court has properly
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appreciated the evidence on record in accordance with law
and facts.
18. On re-examination/re-consideration and re-
appreciation of evidence on record, I do not find any
illegality/infirmities in the impugned judgment of acquittal.
Hence, I answer point No.1 in negative and point No.2 for
the aforesaid reasons and discussions I proceed to pass
the following:
ORDER
1. The appeal is dismissed.
2. The judgment of acquittal passed in
CC.No.270/2008 dated 03.06.2015,
on the file of Principal Civil Judge &
JMFC., Karkala is confirmed.
3. Registry is directed to send a copy
of this judgment along with the trial
Court records to the concerned trial
Court for taking necessary action.
Sd/-
JUDGE
PGG/PK
CT: BHK
