The State Of Karnataka vs Fattesab S/O Saidusab Taragal
2023 Latest Caselaw 454 Kant

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                                  CRL.A No. 100403 of 2019

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

        DATED THIS THE 6TH DAY OF JANUARY, 2023

                        PRESENT
     THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
                           AND
            THE HON'BLE MR JUSTICE C M JOSHI
        CRIMINAL APPEAL NO. 100403 OF 2019 (A-)
BETWEEN:

THE STATE OF KARNATAKA
REPRESENTED BY THE
ASSISTANT POLICE INSPECTOR,
MUNDAGOD POLICE STATION,
THROUGH THE ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD.

                                 ...COMPLAINANT/APPELLANT

(BY SRI. V.M. BANAKAR, ADDL.SPP.,)

AND:

1.    FATTESAB S/O SAIDUSAB TARAGAL
      AGE. 61 YEARS,
      R/O. AGADI, TQ. MUNDGOD,
      DIST. U.K. KARWAR-581399.

2.    HAJARATALI S/O FATTESAB TARAGAL
      AGE: 21 YEARS,
      R/O: AGADI, TQ: MUNDGOD,
      DIST: U.K. KARWAR.

3.    SAIDUSAB @ MOULALI FATTESAB TARAGAL
      AGE: 19 YEARS,
      R/O: AGADI, TQ: MUNDGOD,
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                                         CRL.A No. 100403 of 2019

      DIST: U.K. KARWAR, PIN-581349.

4.    MADARSAB S/O FATTESAB TARAGAL
      AGE: 20 YEARS,
      R/O: AGADI, TQ: MUNDGOD,
      DIST: U.K. KARWAR, PIN-581349.

                                                     ...RESPONDENTS

(BY SRI. VISHWANTH HEGDE, ADVOCATE)

       THIS CRIMINAL APPEAL IS FILED U/S 378(1) AND (3) OF
CR.P.C. SEEKING TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 30/04/2019
PASSED BY THE 1ST ADDL. DISTRICT AND SESSIONS JUDGE AT
U.K. KARWAR SITTING AT SIRSI IN S.C.NO.5019/2017 AND
SET    ASIDE       THE   JUDGMENT       AND    ORDER     OF    DATED
30/04/2019, PASSED BY THE 1ST ADDL. DISTRICT AND
SESSIONS JUDGE AT U.K. KARWAR SITTING AT SIRSI IN
S.C.NO.5019/2017          AND    CONVICT       THE      RESPONDENT/
ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS
447, 504, 307 R/W SEC.34 OF IPC.

       THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY,    Dr.       H.B.PRABHAKARA        SASTRY,      DELIVERED   THE
FOLLOWING:
                              JUDGMENT

The present appellant as the state/complainant had

initiated a criminal proceedings against the present

respondents arraigning them as accused for the offences

punishable under sections 447, 504, 307 read with section

CRL.A No. 100403 of 2019

34 of the Indian Penal Code (hereinafter for brevity

referred to as 'IPC') in S.C.No.5019/2017 in the court of

the learned First Additional District and Sessions Judge at

Uttara Kannada (Karwar), sitting at Sirsi (hereinafter for

brevity referred to as 'the Sessions Judge's Court'). After

trial, the accused were acquitted of all the alleged

offences. Seeking setting aside of the impugned judgment

dated 30.04.2019, the State has preferred the present

appeal under sections 378(1) & (3) of the Code of Criminal

Procedure, 1973 (hereinafter for brevity referred to as

'Cr.P.C.').

2. It is the case of the prosecution that a property

dispute was going on between the informant and the

accused persons with respect to an agricultural land. On

the date 22.03.2016, the informant, his son and nephew,

after cleaning their land in dispute bearing Survey

No.14/14 measuring 6 guntas 8 annas situate at Agadi

village and were returning home, the accused raising an

objection as to why did the complainant uprooted the

plants in the land and attempted to clean land, criminally

CRL.A No. 100403 of 2019

trespassed into the land and assaulted the complainant. In

the process, accused No.2 assaulted the informant on his

head with a sickle with an intention to cause his death.

Accused No.4 assaulted the informant on his left arm with

a club, accused Nos.1 and 3 sat on the chest of the

informant and assaulted him with their hands. Thus, the

alleged act of the accused resulted in infliction of the

injury upon the informant. However, the informant was

rescued by his children and was shifted to hospital where,

in the presence of the doctor, he gave his first information

to the complainant-police which information was

registered in the appellant-police station in Crime

No.74/2016 against four accused for the offences

punishable under sections 447, 504, 307 read with section

34 of IPC. After conducting investigation, the police have

filed charge sheet against all the four accused for the

offence punishable under sections 447, 504, 307 read with

section 34 of IPC.

3. Since the accused pleaded not guilty, the trial

was held wherein in order to prove the alleged guilt

CRL.A No. 100403 of 2019

against the accused, the prosecution got examined seven

witnesses from PW1 to PW17 and got marked fourteen

documents from Ex.P.1 to P.16 and material objects

M.Os.1 to 6. Statement of all the accused under section

313 of Cr.P.C., was recorded. Neither any witnesses were

examined from the accused side nor any documents were

marked as exhibits.

4. After hearing both side, the learned Sessions

Judge by his impugned judgment dated 30.04.2019

acquitted the accused for the offences charged against

them.

5. The respondents/accused are being represented

by their counsel.

6. The Sessions Judge's Court records were called

for and the same are placed before this Court.

7. Heard the arguments from both side. Perused

the material placed before this Court including the

memorandum of appeal, impugned judgment and the

Sessions Judge's Court records.

CRL.A No. 100403 of 2019

8. For the sake of convenience, the parties would

be henceforth referred to as per their rankings before the

learned Sessions Judge's Court.

9. The point that arises for our consideration is:

i) Whether the prosecution has proved beyond all

reasonable doubt that on the date 22.03.2016 at

about 6.00 p.m., all the four accused, in

furtherance of their common intention, criminally

trespassed into the land of informant/CW1

bearing Survey No.14/14 at Agadi village and

abused the complainant in filthy language and

also assaulted him both with their hands as well

with sickle and club inflicting injuries upon him

and attempted to cause the murder of CW1 and

thereby have committed offences punishable

under section 447, 504, 307 read with section 34

of the Indian Penal Code?

ii) Whether the judgment under appeal deserves

any interference at the hands of this Court?

CRL.A No. 100403 of 2019

10. The learned Additional SPP, appearing for the

appellant, in his brief arguments, submitted that the

evidence of PW2, who is injured witness, is fully

corroborated by the evidence of PW3, who is an

eyewitness to the incident. Furthermore, the evidence of

PW6, who rushed to the spot after getting the information

about the incident and shifted the injured to the hospital,

also corroborates the evidence of PW2 and PW3. However,

on the pretext of certain minor contradictions, the

Sessions Judge's Court disbelieved their evidence, which

has resulted in the Sessions Judge's Court pronouncing the

judgment of acquittal. The learned Additional SPP further

submitted that the recovery of the weapon and its use

have all been established by the prosecution witnesses

including the medical evidence given by the doctor (PW1)

and his opinion regarding the weapon and the injury

sustained by the informant. With this, he prayed to allow

the appeal.

11. Per contra, learned counsel for the respondents,

in his arguments, submitted that unless the prosecution

CRL.A No. 100403 of 2019

specifically mentions the spot where the alleged incident is said

to have taken place, the further evidence of the prosecution

witnesses would be of no consequence. In the instant case,

the prosecution has utterly failed to establish the exact

location of the incident. Each of the witness have given their

own version about the alleged spot of the incident. He

further submitted that there are material inconsistencies and

contradictions in the evidence of the prosecution witnesses.

Apart from the location of the alleged incident, even the

manner of the occurrence of incident and whether the

informant and his son were walking in the alleged place or

were going on a motorcycle, is also at variance.

Learned counsel also submitted that, about the

presence of PW3 the prosecution has not laid any cogent

evidence. Admittedly, PW3 was a student studying in high

school and the incident was shown to have taken place on

school working day. As such, it was very much required for

the prosecution to place before the Court the attendance

certificate of PW3 to corroborate that PW3 had remained

absent or on leave to his school on the said date. With

CRL.A No. 100403 of 2019

this, he submitted that considering all these aspects, since

the Sessions Judge's Court has rightly pronounced the

judgment of acquittal, no interference is warranted in it

by this Court.

12. Before proceeding further in analysing the

evidence laid in the matter, it is to be borne in mind that it

is an appeal against the judgment of acquittal of the

accused from the alleged offences punishable under

Sections 447, 504, 307 read with section 34 of IPC.

Therefore, the accused have primarily the double benefit.

Firstly, the presumption under law that, unless their guilt

is proved, the accused has to be treated as innocent in the

alleged crime. Secondly, the accused are already enjoying

the benefit of judgment of acquittal passed under the

impugned judgment. As such, bearing the same in mind,

the evidence placed by the prosecution in the matter is

required to be analysed. The Hon'ble Apex Court, in its

judgment in CHANDRAPPA AND OTHERS Vs. STATE OF

KARNATAKA, reported in (2007) 4 SCC 415, while laying

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CRL.A No. 100403 of 2019

down the general principles regarding powers of the

Appellate Court while dealing in an appeal against an order

of an acquittal, was pleased to observe at paragraph

42.(4) and paragraph 42.(5) as below:

"(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

In SUDERSHAN KUMAR Vs. STATE OF HIMACHAL

PRADESH reported in (2014) 15 SCC 666, while referring

to Chandrappa's case (supra) the Hon'ble Apex Court at

para 31 of its Judgment was pleased to hold that a

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CRL.A No. 100403 of 2019

cardinal principle in criminal jurisprudence that

presumption of innocence of the accused is reinforced by

an order of acquittal, the Appellate Court, in such a case,

would interfere only for very substantial and compelling

reasons.

In Jafarudheen Vs. State of Kerala reported in

(2022) 8 SCC 440 at para 25 of the judgment, the

Hon'ble Apex Court was pleased to observe as below:

"25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, the appellate Court has to consider whether the trial court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate Court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."

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CRL.A No. 100403 of 2019

The above principle laid down by it in its previous

case were reaffirmed by the Hon'ble Apex Court in Ravi

Sharma Vs. State (Government of NCT of Delhi) and

another reported in (2022) 8 SCC 536.

It is keeping in mind the above principles laid down

by the Hon'ble Apex Court, we proceed to analyse the

evidence placed in this matter.

13. Among the seven witnesses examined by the

prosecution, the material witness upon whom the

prosecution has mainly banked upon is PW2/CW1-

Rustumsab Budnanavar and PW3/CW6-Basha Rustumsab.

The PW2-Rustumsab Budnanavar, who is admittedly

the informant in this case, has stated that he knows all the

four accused in the matter. He owns the land bearing

survey No.14/14, measuring 6 guntas 8 annas, located at

Agadi village and the said land is under his cultivation. On

the date 22.03.2016 in the afternoon at about 4.30 p.m.,

joined by his son i.e., CW6 and his nephew Subhan

cleaned the field and were returning to their home on their

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motorcycle. At that time, accused No.2, all of a sudden,

came there and assaulted on his head with a sickle. The

witness has stated that by the said assault, he sustained

bleeding injury on his head. Accused No.4 assaulted him

with a club on his left arm. Accused No.1 and 4 sat on his

chest, assaulted with their hands. At that time, his son ran

away from the place to call his uncle and brought uncle

and his son to the spot. Then the accused ran away from

the place. The witness further stated that thereafter he

was shifted to the Government Hospital at Mundagod in an

ambulance and the police visited the hospital before whom

he has given a statement in the form of first information.

Stating so, the witness has identified the same at Ex.P4.

Further stating that he would identify the sickle and club

used by the accused in the commission of the crime, the

witness has identified them at M.Os.1 and 2, respectively.

Further stating that the clothes worn by him at the time of

the incident which were stained with blood were seized by

the police under a panchanama, the witness has identified

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CRL.A No. 100403 of 2019

a shirt, a towel and a Dhoti at M.Os.3, 4 and 5,

respectively, and a panchanama at Ex.P5.

This witness was subjected to detailed cross-

examination from the accused side where some more

details about the alleged incident were attempted to be

brought out from his evidence. The witness has stated that

the spot of the alleged incident was about 20-30 ft., away

from his land. He also stated that till his son returned after

the incident, he was lying in his land. He further stated

before the police as well the doctor that he was assaulted

with an axe by the accused. However, regarding the

incident of assault upon him by the accused, he adhered

to his original version.

14. PW3/CW6-Mohammad Basha, who is admittedly

son of PW2, also has corroborated the evidence of his

father by stating that he too joined his father in cleaning

their land on the date of the incident which was

22.03.2016. He stated that while they were coming back

to their home by walk, the accused approached them and

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assaulted them. The witness stated that accused No.2

assaulted his father with a sickle and accused No.4 with a

club and accused No.1 and 3 sat on the chest of his father

and assaulted him with their hands. He further stated that

having seen his father sustaining bleeding injuries in the

incident, he ran away from there to bring CW8 and CW9.

It was at that time, the accused left the place. The witness

further stated that CW8 and CW9 having come to the spot,

shifted his father in an ambulance to Government Hospital,

Mundagod and there, police have recorded the statement

of his father. Stating so, this witness also has identified

the M.Os.1 to 5. Further stating that the police while

drawing the scene of offence panchanama on 23.03.2016

had seized the handle of a sickle which was lying in their

land has identified the said handle of the sickle at M.O.6

and the seizure panchanama at Ex.P6. He has identified

the photographs also stating that in the photographs taken

at the time of the panchanama, he too can be seen.

15. In his cross-examination, an attempt was made

to show that he being a student he could not have been

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present at the time of the incident in the spot as he had to

attend the school on the said day. However, the witness

though stated that he was studying in the 9th standard,

but also added that on the date of the incident, he had not

been to the school and as such was present in the spot.

16. After the above said material witness to the

incident, the prosecution has relied upon the evidence of

PW6/CW8-Abdul Sab, who in his evidence has stated that

CW1 was his cousin brother. On the date of the incident,

while he was at home in the evening, CW6, who is son of

CW1 came to his house running and told that CW1 was

assaulted with a sickle. Immediately, joined by CW9, he

went to the lands of CW1 (informant) where they saw the

CW1 had sustained bleeding injuries. These people shifted

the injured to the Government hospital at Mundagod in an

ambulance. This witness, in his cross-examination, though

adhered to his original version but stated that he did not

see any axe in the spot of the offence.

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17. The prosecution examined PW1/CW11-

Dr.Prasanna, the medical officer at General Hospital,

Mundagod, who in his evidence has stated that on the date

22.03.2016 at about 8.15 p.m., as a duty doctor, he has

examined the injured-Rustumsab, who was brought by

Mehaboob Sab with the history of assault. The witness has

stated that by examining the injured, he noticed a deep

cut injury on his scalp measuring 20cm x 1cm x 1.5cm. He

has opined that the said injury could have been possible to

be caused by the use of a sharp weapon and opined that

the said injury was simple in nature.

18. It is based upon the above evidence, the

learned Additional SPP has vehemently submitted that

when the injured witness himself has specifically and

categorically stated that he was assaulted by the accused,

which is further corroborated by the evidence of PW3, the

eyewitness, the learned Sessions Judge was in error in

pronouncing the judgment of acquittal.

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CRL.A No. 100403 of 2019

19. As observed above, the accused in the case

have been charged with the offences punishable under

section 447, 504, 307 read with section 34 of IPC. In order

to show that the accused have committed the offence

punishable under section 447 of IPC, the prosecution is

required to establish that the incident which is said to have

been taken place was in the property not belonging to the

accused but to somebody else and the accused entered

the said property without any consent or permission of the

owner or possessor of the property and they entered the

said property with some criminal intention to cause some

criminal act or commit some action in the said property.

20. The allegation in the charge sheet was that, the

accused criminally trespassed in the property of the

complainant bearing survey No.14/14 at Agadi village. No

doubt PW2, who claims himself to be the owner in

possession of the said land which was corroborated by the

evidence of his son PW3 would go to show that they are

the owners in possession of the landed property bearing

survey No.14/14 of Agadi village. Regarding the alleged

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ownership and possession of the property, the accused

have not taken any specific defence nor denied the

statements of PW2 and PW3. However, neither PW2 nor

PW3 have stated that the alleged incident has taken place

in the said land bearing survey No.14/14.

21. PW2, in his complaint at Ex.P4, has stated that

the incident has taken place while he was returning from

his land. The same witness in his deposition has stated

that the incident has taken place while he was returning

home on his motorcycle after attending the cleaning work

in his field. Thus, the very evidence of none else than the

alleged injured witness itself would go to show that the

alleged incident has not taken place in the land belonging

to PW2 but it is outside his land, which may be the

property of somebody else or a public property.

Added to the above, the scene of offence

panchanama at Ex.P6 also mentions the place of offence

as near to the land bearing Survey No.14/14 at Agadi

village. As such, even the scene of offence panchanama

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also does not mention that the property where the offence

has taken place was belonging to the complainant or his

family.

Added to the above, PW2 in his cross-examination

has given more clarity regarding the place of offence

stating that the incident has taken place at a distance of

20-30 ft away from his land. Thus, it is very clear from the

evidence of none else than the prosecution witness that

the alleged incident if at all taken place is not in the

property of the informant (PW2), but it is in a different

place. As such, the question of criminal trespass into the

property of PW2 would not arise.

22. About the incident of the alleged assault,

though PW2 in his complaint at Ex.P4 has made allegation

against all the four accused, however, in his evidence, he

has not whispered anything about the role of accused

No.3. He has stated that the assailants were accused

Nos.2, 4 and 1. On the other hand, PW3, who also claims

to be an eyewitness to the incident and a person who

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claims that he knows all the accused, has stated that there

were four accused including accused No.3. He has

attributed a specific role as against accused No.3 alleging

that he sat on the chest of his father and assaulted him

with his hands. Had it been the case that the accused No.3

sat on his chest, then definitely PW2 in his evidence in the

examination-in-chief could have stated that accused No.3

also assaulted him by sitting on his chest.

23. Secondly, the case of the prosecution, as

observed above regarding the spot of the incident was the

land at Survey No.14/14 in Agadi village, however as

analysed above, both PW2 and PW3 have made it very

clear that the incident has not taken place in the land

bearing survey No.14/14 but at a shorter distance away

from the said land. As such, regarding the alleged spot of

the offence also there is some discrepancy. However,

surprisingly, the alleged scene of offence panchanama

which is at Ex.P6 is shown to have been drawn near the

alleged land of PW2, but it does not mention exactly that

the alleged spot of the offence was the land at Survey

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No.14/14. Therefore, there is no clarity as to what exactly

was the location of the alleged place of offence.

24. Thirdly, according to prosecution, in the spot,

the handle of a sickle which weapon was alleged to have

been used in the commission of crime had fallen. The

prosecution through PW4/CW2-Moulasab Muktumsab

Somapur has attempted to show that the said M.O.6 was

recovered under Ex.P6 in his presence. Though the said

witness stated that the said panchanama which was a

scene of offence cum seizure panchanama was drawn in

his presence but stated that the handle of the sickle had

fallen in the lands of PW2. If that were to be the case,

there is no explanation from the prosecution side as to

how come the said handle of the sickle found fallen in the

alleged land of PW2 when infact the alleged place of

offence is said to be not the land of PW2 but some other

place near to his land. Thus, the same adds some more

doubt in the case of the prosecution not only about the

alleged spot of the offence but also about alleged recovery

of M.O.6.

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25. Fourthly, the informant as PW2 in his complaint

has stated that the weapon used in assaulting him was

apart from the alleged club was an axe. Even in his

deposition also he has categorically stated that the

weapon used to assault him by accused No.2 was an axe.

However, in the very same evidence, he has stated that

the weapon was sickle. Further, he admitted in his cross-

examination that he has stated before the doctor that the

weapon used was an axe. Thus, even regarding the nature

of the weapon alleged to have been used in the

commission of offence also there is greater discrepancy.

The prosecution did not bother in subjecting the witness

for re-examination and to ascertain the correct nature of

the weapon used in the commission of offence. When the

informant, at the first instance, has stated that he has

noticed the weapon and identified it as an axe, then how

come he substitute the nature of the weapon to a sickle is

not known and no reasons are forthcoming in that regard.

Thus, even though PW2 and PW3 have corroborated each

other in their evidence about the occurrence of the alleged

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incident but there is no consistency in their narration of

the details of the incident, more importantly, the role of

accused No.3 in the alleged incident and the nature of the

weapon alleged to have been used in the commission of

the crime. In such circumstance, it is not safe to believe

the version of PW2 about the alleged incident, more

particularly, the alleged role of accused though in fact he

is projected as an injured witness in the incident.

26. Alleging that the weapon actually used in the

commission of the crime was a sickle, the prosecution

examined PW5/CW4-Safi Ahmed M Budnanavar to show

that the said sickle and a club used in the commission of

the crime were recovered at the instance of accused No.2.

The said witness, in his evidence, has stated that the

police had taken him and co-pancha to the house of

accused No.2 where the accused from garbage took up a

sickle and a club and produced them before these people

and they were seized by drawing a panchanama as per

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Ex.P8. Stating so, the witness has identified the sickle and

the club at M.Os.1 and 2, respectively.

27. A careful examination of the evidence of this

witness would go to show that it is not accused No.2 or

any other accused, who led these panchas and police to

the house of accused No.2, but it is the police themselves

who had taken the alleged panchas to the house of

accused No.2. Though PW7 being an investigating officer

in the matter attempted to patch up the said lacuna by

stating that accused No.2 had given a voluntarily

statement before him as per Ex.P12 and led him and the

panchas to his house, however when the independent

pancha himself has stated that it was the police, who

summoned him and co-pancha to the police station and

had taken them to the house of the accused No.2 where

the accused No.2 was present, the evidence of PW7 that it

was the accused who led them to his house is not safe to

believe. Consequently, when it can be inferred that the

police knew about the presence of M.Os.1 and 2 in the

house of accused No.2 as such, they could be able to take

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the panchas to the house of accused No.2 without being

led by any of the accused, the very trustworthiness of the

recovery panchanama at Ex.P8 becomes highly suspicious.

Therefore, the alleged recovery of M.Os.1 and 2 at the

alleged instance of accused No.2 also remains as not

proved.

In the light of the above inconsistencies and

uncertainties and considerable lacunas in the case of the

prosecution, the defence of the accused that the informant

(PW2) must have fallen down from a tree and that he had

lodged a false complaint since he was asked not to cut the

plants and shrubs in the land, would go to background

that even in the absence of any specific defence from the

accused, the prosecution's case since could not stand on

its own leg, the Sessions Judge's Court has by properly

analyzing the evidence placed before it, has rightly

pronounced the judgment of acquittal in which we find no

reason for interference. Accordingly, we proceed to pass

the following:

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ORDER

The criminal appeal stands dismissed as

devoid of merits.

Registry to transmit a copy of this

judgment along with Sessions Court Records to

the said Court immediately.

Sd/-

JUDGE

Sd/-

JUDGE

YAN