The State Of Karnataka vs Mahantgouda S/O Doddappa @ ...
2023 Latest Caselaw 1024 Kant

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           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 18TH DAY OF JANUARY, 2023

                        BEFORE

     THE HON'BLE MR. JUSTICE V. SRISHANANDA

          CRIMINAL APPEAL No.200059/2016
BETWEEN:

THE STATE OF KARNATAKA,
THROUGH THE SHAHAPUR P.S.
                                           ... APPELLANT
(BY SRI GURURAJ V. HASILKAR, HCGP)

AND:

1.     MAHANTGOUDA S/O DODDAPPA @
       DODDAPPAGOUDA POLICE PATIL,
       AGE: 47 YEARS, OCC: BUSINESS,

2.     CHANDRAGOUDA
       S/O NAGANNAGOUDA MALIPATIL
       AGE: 50 YEARS, OCC: AGRICULTURE,

3.     BASAVARAJAPPA S/O NAGANNA @
       NAGANNAGOUDA MALIPATIL
       AGE: 55 YEARS, OCC: AGRICULTURE

4.     BASAVARAJAPPA S/O NARASAPPA DIDDI
       AGE: 42 YEARS, OCC: AGRICULTURE,

5.     NINGAPPA S/O BALAWANTAPPA INGALI
       AGE: 62 YEARS, OCC: AGRICULTURE

6.     BHEEMARAYA S/O BASSAPPA NARAGA
       AGE: 39 YEARS, OCC: AGRICULTURE,

7.     DOULAPPA S/O RAYAPPA NAIKODI
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      AGE: 27 YEARS, OCC: AGRICULTURE,

8.    BALABHEEMARAYA
      S/O PADDAPPA KADAMGERA
      AGE: 30 YEARS, OCC: AGRICULTURE

9.    NAGAPPA S/O BHEEMARAYA RASTAPUR
      AGE: 26 YEARS, OCC: AGRICULTURE,

10.   BASSAPPA S/O RAYAPPA KORWAR
      AGE: 29 YEARS, OCC: AGRICULTURE

11.   NAGAPPA S/O HONNAYYA KORWAR
      AGE: 29 YEARS, OCC: AGRICULTURE

12.   BASSAPPA
      S/O MARTHANDAPPA BAGALKOT
      AGE: 36 YEARS, OCC: AGRICULTURE,

13.   CHANDAPPA S/O MALLAPPA HALLI
      AGE: 35 YEARS, OCC: AGRICULTURE

14.   MALLAPPA S/O SIDDAPPA KORWAR
      AGE: 44 YEARS, OCC: AGRICULTURE,

      ALL R/O MADNAL, TALUKA SHAHAPUR.
                                         ... RESPONDENTS
(BY SRI SHIVASHARANA REDDY, ADVOCATE)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)
& (B) OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER DATED 11.11.2015 PASSED BY THE SESSIONS JUDGE,
SPECIAL COURT AT YADGIRI, IN SPL.C.NO.31/2012 INSOFAR
AS ACQUITTING ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTIONS 143, 147, 148, 323, 324, 504 R/W SECTION
149 OF INDIAN PENAL CODE AND UNDER SECTION 3 (1)(X) OF
SCHEDULED CASTES AND SCHEDULED TRIBES (PREVENTION
OF    ATROCITIES)   ACT,   1989   AND    CONVICT    THE
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RESPONDENTS/ACCUSED FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 143, 147, 148, 323, 324, 504 R/W SECTION
149 OF INDIAN PENAL CODE AND UNDER SECTION 3(1)(X) OF
SCHEDULED CASTES AND SCHEDULED TRIBES (PREVENTION
OF ATROCITIES) ACT, 1989


     THIS APPEAL COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                       JUDGMENT

Heard Sri Gururaj V. Hasilkar, learned High

Court Government Pleader for the appellant-State and

Sri Shivasharana Reddy, learned counsel for the

respondents-accused.

2. The present appeal is directed against the

judgment of acquittal passed in Special Case

No.31/2012 dated 11.11.2015 on the file of Sessions

Judge, Special Court, Yadgiri.

3. Facts in brief for disposal of the present

appeal are as under:

Upon a complaint lodged by Sri Mallappa

Doddamani, Shahapur Police registered a case in

Crime No.5/2012 for the offences punishable under

Sections 143, 147, 148, 323, 324, 504 r/w Section

149 of IPC and Section 3(1)(x) of the Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities)

Act, 1989.

Gist of the complaint averments reveal that the

complainant is a resident of Madnal village. On

account of Makara Sankranti festival, the complainant

and others participated in Pallaki Utsava of

Sangameshwara and Balabhimeshwara deities. People

from Madnal and other devotees were also present. At

about 4.30 p.m. on 15.01.2012, when the

complainant and his relatives offered coconut to the

deities, in the Pallaki Utsava, there was a huge rush

and at that juncture, all the accused persons came

there, picked up quarrel with the complainant and his

villagers, abused them by taking out their caste name

and threw chilli powder and assaulted them and

whereby the complainant and others sustained

injuries.

4. The police after registering the case in

Crime No.5/2012, investigation was carried out by the

Deputy Superintendent of Police and after thorough

investigation, charge sheet came to be filed against

the respondents for the aforesaid offences.

5. The presence of the accused was secured

on receipt of the chargesheet and after complying

Section 207 of Cr.P.C., the charges were framed

against the accused for the aforesaid offences.

6. Since the accused did not plead guilty, trial

was held.

7. In order to bring home the guilt of the

accused, in all, 14 witnesses who are complainant and

the injured persons were examined on behalf of the

prosecution as PWs.1 to 14 and 13 documentary

evidence were relied upon by the prosecution which

were exhibited and marked as Exs.P1 to P13

comprising of complaint, spot mahzar, wound

certificate of the complainant and his friends, FIR and

caste certificates. The prosecution also marked sugar

cane pieces as M.Os.1 and 2.

8. On conclusion of the prosecution evidence,

the accused statement as is contemplated under

Section 313 of Cr.P.C., was recorded wherein the

accused persons have denied all the incriminating

circumstances and did not choose to offer any written

submission as per Section 313(5) of Cr.P.C., nor

adduced any defence evidence.

9. Thereafter, the learned Special Judge heard

the parties in detail and on cumulative consideration

of oral and documentary evidence placed on record,

passed the judgment acquitting all the accused

persons for the aforesaid offences.

10. Being aggrieved by the said judgment, the

State is in appeal on the following grounds:

x "That, the impugned judgment and order of acquittal recorded by the Learned Sessions Judge is contrary to evidence, law and materials on record. As such, the same is liable to be set aside.

x The reasons assigned by the Learned Sessions Judge, while passing the impugned judgment and order of acquittal are erroneous and as such, he has slipped into an error and passed the impugned judgment, resulting in substantial miscarriage of justice to the case of the prosecution,

x It is submitted that, the PWS-1, 3 to 9 are the injured witnesses and the PWS-

10 and 11 are the material eye-

witnesses to the incident and they have specifically deposed with regard to the offence committed by the respondents/accused. But the learned Sessions Judge disbelieving the said evidence and acquitting the accused/respondents has resulted in substantial miscarriage of justice to the case of the prosecution.

x It is submitted that, absolutely there are no grounds to disbelieve the evidence of PWS-1 to 11. No doubt, there might be some omission and contradiction in their evidence but those omissions, contradictions, inconsistencies are not fatal to the prosecution case, so as to disbelieve the entire prosecution case. Hence, the impugned judgment and order of acquittal is liable to be set aside.

x It is also relevant to submit that, merely CW-17 i.e. S.D. Bagwadmath, Dy.S.P., has not been examined the entire prosecution case cannot be disbelieved, if there are other circumstances and witnesses who have categorically deposed against the accused/respondents. In that view of the matter, the impugned judgment and order of acquittal is liable to be set aside.

x The Court below has blindly disbelieved the evidence of material witnesses and only on assumption and presumptions has acquitted the accused which is totally erroneous.

x Any other ground or grounds would be time of hearing with due notice to other side and with due permission of this Hon'ble Court.

x Viewed from any angle the impugned judgment passed by the Trial Court is ill- legal, unreasonable and contrary to the facts. Hence, the judgment of acquittal is deserves to be set aside.

x No other appeal is filed for the same caused of action."

11. Reiterating the above grounds, learned

High Court Government Pleader for the appellant-

State contended with vehemence that the learned

Special Judge has not properly appreciated the oral

and documentary evidence on record. He also pointed

out that minor contradictions obtained in the cross-

examination of the prosecution witnesses have been

blown out of proportion by the learned Special Judge

and passed an order of acquittal against the

respondents herein resulting in miscarriage of justice

and thus, sought for allowing the appeal.

12. Per contra, learned counsel representing

the accused/respondents supported the impugned

judgment by contending that no such incident as is

contended in the complaint has taken place and in the

huge rush, there might have been possibility of

pushing on account of stampede and the complainant

and other injured persons must have sustained minor

abrasions on their body, in such stampede and the

same is taken advantage of by the complainant and a

false complaint came to be lodged against the accused

persons with ulterior motive and the same has been

rightly appreciated by the learned Special Judge and

has rightly acquitted the accused persons and sought

for dismissal of the appeal.

13. He also pointed out that an order of

acquittal recorded by the duly constituted Court in

favour of the respondents would reinforce innocence

of the accused persons insofar as the charges levelled

against them and therefore, sought for dismissal of

the appeal.

14. In view of the rival contentions of the

parties, this Court perused the material on record

meticulously.

15. On such perusal, the following points would

arise for consideration:

1) Whether the prosecution had made out a case for convicting all the accused for the offences punishable under Sections 143, 147, 148, 323, 324, 504 r/w Section 149 of IPC and Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989?

     2)    Whether the impugned judgment is
           suffering    from       legal    infirmity   or
           perversity      and      thus,     calls     for
           interference?





     3)    If   answer   to        the   above   are   in

affirmative, what is the sentence?

4) What order?

16. In the case on hand, during the course of

trial, accused No.6 died and therefore, case against

accused No.6 stood abated.

17. Gist of the complaint averments as referred

to supra is, on 15.01.2012, there was an altercation

when the complainant and his friends had been to

participate in Pallaki Utsava of Sangameshwara and

Balabhimeshwara deities. When Pallaki of deities were

brought near katte (platform) for resting the Pallakis,

the complainant and others had gone near the Pallaki

to offer coconut as a part of the ritual, at that

juncture, having regard to the small place where both

the Pallakkis were kept, there was a huge rush and a

situation arose and hustle has taken place. At that

juncture, all the accused persons abused the

complainant and his friends/relatives by taking out

their caste name and assaulted them with MOs.1 and

2 resulting in bleeding injuries. All the witnesses have

deposed in line with the aforesaid factual aspects.

The learned Special Judge while appreciating the

material evidence on record, in paragraphs-14 to 16

has held as under:

"14) The PW.1 Mallappa has stated that immediately after he received the injuries he become unconscious and does not know as to who pacified the quarrel.

Therefore he is not the proper person to speak with regard to the fact of the individual overt-acts of the accused persons caused to the PWs.3 to 9. The PW.1 Mallappa has specifically spoken in his evidence that in the said Pallaki Utsava police persons were there and also all the

community people of the village were present on the scene of offence. His evidence further shows that at the time of the incident on the spot police persons were gathered there. If the police persons were gathered there on the spot at the time of the alleged incident, the police persons are the best and material witnesses to speak about the alleged offences committed by the accused persons. If the CW.17 S.D. Bagwadmath Dy.S.P. had been examined before Court, the accused could have extracted some admissions from his mouth with regard to the fact that who were the police officials posted on duty for bandobast on the said pallaki utsava and as to why the said police officials/constables did not array as witnesses. Though on number of occasions the witness summons and bailable warrants have been issued to the CW.17, but he has not come forward to give evidence on account of ill-health. The non-examination of the said CW.17 S.D. Bagwadmath

Dy.S.P. will certainly cause great prejudice to the accused where only interested witnesses have been arrayed as prosecution witnesses. Even the CW.17 S.D. Bagwadmath Dy.S.P. has not examined any of the independent witnesses who said to were present on the scene of occurrence. The evidence of PW.5 shows that the persons who had come by following the Bheemaraya Devaru have witnessed the incident. If that is so, the persons who had come by following the Bheemaraya Devaru i.e., the pallaki brought from Bheemarayanagudi are also the material witnesses to speak about the incident. The said persons have not been cited as a witness in the charge-sheet. Therefore under these circumstances, the non-examination of CW.17 S.D.

Bagwadmath Dy.S.P. will cause great prejudice to the accused. If the police officials and the other independent witnesses stated above had been examined by the I.O. i.e., CW.17 S.D. Bagwadmath

then the real fact could have come over from the mouth of them and could have been ascertained the fact as to whether such an incident has really taken place or not.

15) PW.1 Mallappa stated that accused Nos.1 and 2 have assaulted the PWs.1, 3 to 9 with M.Os.1 and 2. The PW.3 Bhimaraya has also spoken that the accused No.1 has assaulted him with M.Os.1 and 2 sugarcane pieces. PW.4 Tayyappa has also stated that accused No.2 has assaulted him with M.Os.1 and 2 sugarcane pieces. PW.5 Amlappa has also stated that accused Nos.3 and 4 have assaulted him with M.Os.1 and 2 sugarcane pieces. PW.7 Chandrappa has also stated in his evidence that accused Nos.5 and 6 have assaulted him with M.Os.1 and 2 sugarcane pieces. PW.10 Doddappa has stated that accused persons have used the M.Os.1 and 2 sugarcane pieces in assaulting the PWs.1, 3 to 9. PW.11 Mallappa Danakai has stated

that accused Nos.1 and 2 have assaulted the PW.1 Mallappa Doddamani with M.Os.1 and 2 sugarcane pieces. It is claimed that the said M.Os.1 and 2 sugarcane pieces has been seized from the scene of offence at the time of conducting of scene of offence panchanama Ex.P.2 by the Dy.S.P. On perusal of the evidence of the above said witnesses, it reveals the fact that all the said accused persons have used the M.Os.1 and 2 sugarcane pieces in assaulting the PWs. 1, 3 to 9. I have perused the said M.Os. 1 and 2. The M.Os. 1 and 2 are not more than two and half feet in length. If all the accused persons have assaulted the PWs. 1, 3 to 9 by using the M.Os.1 and 2 then as to how the said M.Os.1 and 2 have passed on to the hands of one accused person to another accused person has to be explained by the prosecution witnesses. But none of the witnesses have explained to the fact that earlier the M.Os. 1 and 2 were with accused Nos.1 and 2 and subsequently the same have been pass on

to the other accused persons. It is not possible to assault the PWS.1, 3 to 9 with M.Os. 1 and 2 sugarcane pieces by all the accused persons. Therefore the said fact also creates a serious doubt about the alleged offences committed by accused persons.

16) The PWs. 1, 3 to 10 have stated that the accused persons have abused the PWs.1, 3 to 9 in filthy language and also by taking the name of their caste. It is already stated above that the police personnel were present on the scene of offence. If the accused persons have started to abuse the PWs.1, 3 to 9, certainly the police officials who were on bandobast duty would have interfered and stopped the quarrel then and there only. But the police officials who were present on the spot have not been cited as witnesses. If the said police officials have been cited as a witness and examined before Court then the real facts would have been come out on record.

Therefore under these circumstances, the evidence of the PWs.1, 3 to 11 is not satisfactory and acceptable with regard to the offence punishable under Section 3(1)(x) of SC/ST (P.A.) Act. More over the evidence of PWS.1, 3 to 9 does not show that the particular accused has abused the particular witness i.e., PWS.1, 3 to 9 by taking the name of their caste. It is the case of the prosecution that there was a pallaki utsava on the said spot and number of persons were gathered there in, then it is highly impossible to know the fact as to who actually abused to whom that too by taking the name of the case in the said gathering. Therefore under these circumstances also, the evidence of PWs.1, 3 to 10 is also not satisfactory to prove the offence punishable under Sections 3(1)(x) of SC/ST (P.A.) Act. The PW.1 Mallappa has given the complaint at the first instant only against accused Nos.1 to 6, but subsequently during the course of the investigation they have impleaded the

accused Nos.7 to 15. If really the accused Nos.7 to 15 were present and also taken active participation in the commission of the offence, certainly the said fact could have not been missed by the PW.1 in mentioning their names in the complaint. The subsequent impleading of the accused Nos.7 to 15 also creates a serious doubt about the fact as to whether such an incident has taken place or not as claimed by the prosecution. The burden of proving of the fact that the accused persons have committed the offence beyond all reasonable doubts is on the prosecution. Even if the defence taken by the accused is found to be not acceptable, then also the burden of proving of the fact lies on the prosecution. But the prosecution has failed to prove its case beyond all reasonable doubt. Therefore on taking in to consideration of all the above aspects, I am of the opinion that the prosecution has failed to prove its case beyond all

are answered in the negative."

18. On re-appreciation of the evidence on

record, when the finding recorded by the learned

Special Judge is considered, it is evident that the

learned Special Judge has taken into consideration the

material evidence on record in a meticulous manner

and discussed it critically in the light of the burden

cast on the prosecution to establish the offences

alleged against the respondents/accused.

19. Thereafter, the learned Special Judge came

to the conclusion that the evidence placed on record is

hardly sufficient to bring home the guilt of the

accused.

20. It is settled principles of law that an

accused charged with offence is presumed to be

innocent till the prosecution places such evidence

whereby the innocence of the accused stands quelled.

21. Further, catena of judgments of the Hon'ble

Apex Court have time and again ruled that an order of

acquittal passed against the accused by a duly

constituted Court after full fledged trial would

reinforce innocence of the accused.

22. However, that would not debar for the

appellate Court to revisit into the material aspects and

re-appreciate the material evidence on record.

23. But, while re-appreciating, it is equally

settled principle of law that if two views are

permissible, the view that favours the accused must

be preferred.

24. Applying these celebrated principles of

criminal jurisprudence to the case on hand, even after

re-appreciation of the material on record, this Court

does not find any legal infirmity or perversity in

reaching out the fact that the prosecution has failed to

prove the charges levelled against the respondents/

accused. The reasons assigned by the learned Special

Judge is based on sound and logical conclusion.

25. The grounds urged in the appeal

memorandum referred to supra are hardly sufficient to

interfere with the well reasoned judgment of the

learned Special Judge.

26. Mere reiterating the complaint averments

and deposing in line with the complaint averments by

the prosecution witnesses alone would not be

sufficient to bring home the guilt of the accused.

Moreover, when several persons have gathered for

Pallaki Utsava, how exactly the complainant was in a

position to identify all the accused persons is a

question that remains unanswered.

27. Further, MOs.1 and 2 being sugarcane

pieces said to have been seized from the spot, was

very much available practically with everyone of the

devotees as in the Makara Sankramana festival,

bringing sugarcane pieces to offer the same to

Sangameshwara and Balabhimeshwara deities is a

ritual.

28. All these factors when viewed cumulatively,

this Court does not find any ground whatsoever to

interfere with the impugned judgment.

29. Accordingly, in view of the above

discussions, point Nos.(1) and (2) are answered in

negative.

Recording point No.(3):

30. Since this Court has answered point

Nos.(1) and (2) in negative, this point would not arise

for consideration.

Regarding point No.(4):

31. In view of the finding of this Court on point

Nos.(1) to (3) as above, the following order is passed:

ORDER

The appeal is merit less and is hereby dismissed.

The bail bonds if any, executed by the

respondents stand cancelled.

Sd/-

JUDGE

NB*