Karnataka High Court
Surendra B Kambli vs The State By Sub Inspector on 18 July, 2023
Bench: K.Natarajan
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CRL.A No. 166 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
CRIMINAL APPEAL NO. 166 OF 2018
BETWEEN:
1. SURENDRA B. KAMBLI
AGED 49 YEARS
S/O LATE BHOJA KAMBLI
R/AT ADYAR GUTHU HOUSE,
ADYAR VILLAGE AND POST,
MANGALURU TALUK
2. MOHAMMAD RAMEEZ
AGED 31 YEARS
S/O ABDUL SALEEM,
R/AT NO.2-56,
ACHARI PAL, ADYAR KATTE,
ADYAR VILLAGE AND POST,
MANGALURU TALUK
3. SIRAJ
AGED 35 YEARS
S/O LATE AHAMMAD,
Digitally signed
by NANDINI B G R/AT NEAR ADYAR GUTHU,
Location: HIGH ADYAR VILLAGE AND POST,
COURT OF
KARNATAKA MANGALURU TALUK
4. ANWAR
AGED 30 YEARS
S/O LATE ABBAS,
R/AT NEAR ADYAR GUTHU,
ADYAR VILLAGE AND POST,
MANGALURU TALUK
...APPELLANTS
(BY SRI.KARUNAKARA P.,ADVOCATE)
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CRL.A No. 166 of 2018
AND:
1. THE STATE BY SUB INSPECTOR OF POLICE,
MANGALURU RURAL POLICE,
REPRESENTED BY STATE
PUBLIC PROSECUTOR,
ATTACHED TO THE
OFFICE OF ADVOCATE GENERAL,
HIGH COURT,
BANGALORE-560 001
...RESPONDENT
(BY SRI.S.VISHWAMURTHY., HCGP)
CRL.A. FILED U/S. 374(2) CR.P.C BY THE ADVOCATE FOR THE
APPELLANT PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED
TO SET ASIDE THE JUDGMENT OF CONVICTION DATED 23.11.2017
PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, D.K.,
MANGALURU IN S.C.NO.172/2016 - CONVICTING THE APPELLANT
NO.1 TO 4/ACCUSED NO.1 AND 3 TO 5 FOR THE OFFENCE P/U/S 324
OF IPC.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellants/accused under
Section 374(2) of Cr.P.C for setting aside the judgment of
conviction and sentence passed by the learned Principal
District and Sessions Judge, D.K., Mangaluru (for short,
'Trial Court') in S.C.No.172/2016 for having found the
accused guilty of the offence punishable under Section 324
of IPC and sentenced to pay a fine of Rs.10,000/- each; in
default to pay fine amount, they shall undergo simple
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imprisonment for a period of three months, vide judgment
dated 23.11.2017.
2. Heard learned counsel for the appellants and
learned HCGP for the respondent - State.
3. The parties are referred to as per their rank
before the Trial Court for the purpose of convenience.
4. The case of the prosecution is that, on the
complaint of PW1 who filed the first information before the
police on 11.02.2015 alleging that he is said to be an RTI
Activist and President of Adyaru Village Nagarika
Hitharakshana Vedike and he used to support the poor
people for getting justice in their favour. Due to this, there
was enmity between himself and accused No.1/first
appellant and the first appellant also said to be lifting the
sand unauthorizedly. Therefore, he had lodged complaint
against him in the Revenue Department. On this
background, on 11.02.2015 at 09.15 a.m., when the
complainant along with PW2 was talking in front of tea
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shop of Podiyabba at Adyar Katte area, at that time, a red
Safari car bearing No.KA-19-P-9826 came and stopped
just in front of PW1 and accused No.1 was standing behind
the car, instigating other appellants/accused persons for
assaulting him stating in Tulu language as "DAiÉÄUï ¥ÁqÉè
DAiÉÄ ¨Áj gÁ¥É" and accordingly accused Nos.3, 4 and 5
took a soda bottle, a club and an iron/steel pipe and
assaulted PW1 on his head and other parts of the body.
Then, people started gathering there and hence the
accused went away in the car stating that the time is good
for him and therefore they are leaving. Then, PW4 -
Mohan Ameen came to the spot and Police also reached
spot and shifted him to the Hospital. Accordingly, he has
given a complaint as per Ex.P1. After registering FIR, the
Police investigated the matter and filed charge sheet for
the offences punishable under Sections 143, 147, 148,
114, 324, 307 read with Section 149 of IPC. The case was
committed to the Trial Court and accordingly their
presence was secured and charges were framed by the
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Trial Court. The accused pleaded not guilty and claimed to
be tried. Accordingly, to prove its case, the prosecution
examined in all 9 witnesses as PW1 to PW9 and got
marked 12 documents as Ex.P1 to Ex.P12 and identified 3
Material Objects (MOs 1 to 3). After closing the evidence
of prosecution, the statement of the accused under
Section 313 of Cr.P.C., has been recorded. After hearing
the arguments, the Trial Court acquitted appellant/accused
No.2 in all the charges and appellants/accused Nos.1, 3 to
5 for the offences punishable under Sections 143, 147,
148, 114, 324, 307 and 149 IPC. However, the
appellants/accused Nos.1, 3 to 5 were found guilty for the
offense punishable under Section 324 of IPC and
sentenced to pay a fine of Rs.10,000/- each, as stated
above. Being aggrieved by the same, the appellants are
before this Court.
5. Learned counsel for the appellants contended
that the Trial Court committed an error in convicting the
appellants even though the prosecution failed to prove the
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case against the appellants. The injuries sustained by the
injured/PW1 were simple in nature and the injuries can be
sustained due to falling down on the hard substance due
to old age. The accused No.1 not at all assaulted PW1 with
weapon. The accused No.2, who is driver of the car, the
accused Nos.3 to 5 said to have assaulted with a soda
bottle, a club as well as iron/steel pipe, but there is no
charge for the offence punishable under Section 34 of IPC
to bring the common intention of assaulting the injured.
The accused No.1 not at all assaulted PW1. Such being the
case, convicting the appellant No.1 under Section 324 of
IPC is erroneous. There were lot of contradictions and false
implication due to enmity is not ruled out. Hence, he prays
for allowing the appeal.
6. Per contra, learned High Court Government
Pleader supported the judgment of the Trial Court and
contended that though the accused were acquitted under
Section 114 of IPC and Section 149, but Section 34
attracts which was not stated by the Trial Court but
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convicted four accused persons under Section 324 of IPC
which amounts to common intention, voluntarily causing
hurt and simple injuries to PW1. There is nothing to
disbelieve the errors and prays for dismissal of the appeal.
7. Having heard the arguments of the learned
counsel appearing for the respective parties and on
perusal of the records, the point that arises for my
consideration is;
Whether the prosecution proves beyond
all reasonable doubt that on 11.02.2015 at
about 09.15 a.m., the appellants came in the
car and voluntarily caused injuries to PW1 by
assaulting with soda bottle, club and iron/steel
pipe and caused simple injuries and thereby
committed the offence punishable under
Section 324 of IPC?
8. Upon hearing the arguments of the learned
counsel and in order to re-appreciate the evidence on
record, it is necessary to have a cursory look into the
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evidence adduced by the prosecution before the Trial
Court which are as under:
(a) The PW1 - Thyampanna Shetty deposed that he
is the President of Adyaru Arkula Village Nagarika
Hitharakshana Samithi and he used to lodge complaint
before the Deputy Commissioner and Revenue Department
and other Government Departments against the injustice
caused to the general public. He also made a complaint
against the appellant/accused No.1 for unauthorized
shifting of sand by the appellant/accused No.1 due to
which there was enmity between himself and the
appellant/accused No.1. On that background, he also
sought protection from the police on 10.02.2015 and the
police have also assured to give protection to him. On that
background, on 11.02.2015 at 09.15 a.m., when he was
talking with PW2 Sri.Robert Ferrao in front of the fish
market, at that time, a red Safari car came and stopped
just in front of him little away. Accused No.1 was standing
behind the car and told the others in Tulu language to
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finish him as he was raising voice against him. The
accused No.3, Mohammad Rameez, accused No.4-Siraj
and Accused No.5 - Anwar took soda bottle, club and
iron/steel pipe and assaulted him and they also kicked him
with shoe when he fell down. Then, accused No.1 and
accused No.5 kicked him with shoe. Then the accused told
that his time is good and hence he survived and left in the
car. Since people gathered there, the accused left him,
otherwise they would have committed murder.
Immediately, within a short span of time, PW4 - Mohan
Ameen and Police came to the spot and shifted him to the
Father Mullers Hospital in the auto rickshaw. Then, Police
came to the hospital and recorded his statement as per
Ex.P1. Subsequently, on 26.03.2015, the police took him
to the police station and showed a red Safari car, he has
identified the said car in the photographs as per Ex.P2 to
Ex.P5 and Police prepared the Panchanama. Thereafter,
Police also recorded further statement and also identified
MOs 1 to 3 weapons used by the accused. PW.1 has also
identified all the five accused persons. The accused was
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cross-examined at length by the learned counsel for the
accused, but the witness categorically stated that all the
accused came in a car and assaulted him. Though the
enmity as per elicited in the cross-examination and there
is blood stain on the cloth but the cloth was not seized by
the police. Such being the case, question of bleeding
injuries does not arise.
(b) PW2/Robert Ferrao also supported the case of
the prosecution. He has given evidence on par with PW1.
He also stated that when they were talking together on
11.02.2015, the accused persons came in the car and
three persons got down from the car, they were holding
soda bottle, club and iron/steel pipe and accused No.1 also
present on the spot. The accused No.1 was instigating
others to assault PW1 and accordingly they assaulted
PW1, due to which, PW1 sustained injuries. Thereafter,
police came and the injured was shifted to the hospital. He
also identified Ex.P6 - spot mahazar prepared by the
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police and seizures MOs 1 to 3. He also identified the car
in the photographs as per Ex.P2 to P5.
(c) The PW3 - Chandappa who is said to be an
eyewitness to the incident has stated that he came to the
tea-shop at 09.00 or 09.30 a.m., on 11.02.2015. By that
time, PW1 and accused No.1 were quarrelling. Then, a car
came there and three persons got down and assaulted
PW1. He has identified MOs 1 to 3 seized by the police on
the spot.
(d) The PW4 - Mohan Ameen who is a secretary to
the said association working with the PW1 and according
to his evidence, on 11.02.2015 after receiving the
information through police that accused persons were
assaulting PW1 he went to the spot. By that time, the
injured was to the Father Muller Hospital and on enquiry,
PW1 told that the accused persons assaulted him.
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(e) PW5 - Sri.Santhosh Alva, who is a witness to
the seizure of the car under Ex.P7, he has turned hostile
and not supported the case.
(f) The PW6 - Dr.Varun Pai who treated the PW1
and issued wound certificate as per Ex.P8. According to
his evidence, the injuries sustained by the PW1 are simple
in nature and in his cross-examination, he has stated that
the said injuries may caused to a person who falls on the
hard object.
(g) The PW7 - Dr.Geethalaxmi, a Scientific Officer
who conducted chemical analysis on MOs 1 to 3. As per
her evidence, there is no blood stains on MOs 1 to 3. She
has issued RFSL report and sample seal as per Ex.P9 and
Ex.P10 and she has identified MOs 1 to 3.
(h) The PW8 - Preetham, who is a driver of the car
identified the Ex.P7, seizure mahazar and he has turned
hostile.
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(j) The PW9 - M.D.Maddy, who is a Police Sub-
inspector, as per his evidence, on 11.02.2015 at 09.20
a.m., he received the information from the public that PW1
sustained injuries. Immediately, he went to the spot and
PW1 was there with injuries. By that time, PW2 was also
there and he has informed that accused Nos.1, 3 and 4
assaulted PW1. Then, he has sent the injured to the
hospital with PW4 and went to the hospital, recorded
statement as per Ex.P1 and registered FIR as per Ex.P11.
Thereafter, he visited the spot, prepared Panchanama as
per Ex.P6 and seized MOs 1 to 3 on the spot and also
prepared the sketch as per Ex.P12 and then recorded
statement of witnesses. He further says that he received
the wound certificate from the hospital as per Ex.P8. The
accused surrendered before the Magistrate Court and got
anticipatory bail and he released them on bail. He has
seized the car under the Panchanama as per Ex.P7. Then
he released the car, as per the order of Court by taking
photographs, he has identified the Ex.P2 to Ex.P5. He has
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identified the accused and also received FSL report and
filed the charge.
9. On considering the entire evidence on record,
PW1 and PW2 says that on 11.02.2015 at 09.15 a.m.,
when they were talking together in front of a fish market,
a red Safari car came and stopped in front of them and
accused No.1 was behind the car and instigated the other
accused to assault him. Accordingly, accused Nos.3, 4
and 5 got down with soda bottle, club and iron/steel pipe
and assaulted on his head and other parts of the body and
hence, he fell down and accused No.1 along with accused
No.5 kicked him with shoes and thereafter left him stating
that his time is good, as the people gathered there.
However, PW3 who is an eyewitness to the incident, has
stated that there was a quarrel between accused No.1 and
PW1 on the spot. Subsequently, a car came and three
persons got down from the car and assaulted PW1.
This witness i.e., the PW3 gives a different version from
the evidence of PW1 and PW2.
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10. Learned counsel for the appellant has stated
that presence of accused No.1 was not properly proved by
the prosecution. Whether accused No.1 came in the said
car or he was stood on the spot is not clarified by the
prosecution. That apart, though the evidence of the
prosecution witnesses stated that accused No.1 instigated
accused Nos.3 to 5 to assault PW1, but the accused No.1
was not at all assaulted PW1. The Trial Court acquitted
accused No.1 for the offence punishable under Section 114
of IPC for abetment and the counsel also argued that the
presence of the accused No.1 was doubtful and he could
have implicated by PW1 due to previous enmity.
11. On careful reading of evidence of PW1 to PW3,
neither PW1 nor PW2 have stated that accused No.1 came
in the car and got down from the car, but as per their
evidence, the car was came and accused Nos.3 to 5 got
down from the car. The accused No.2 was driving the car.
But, the accused No.1 was behind the car, hiding himself
and instigating the other accused persons to assault him
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or finish him. Whereas the PW3, an independent
eyewitness to the spot stated that there was quarrel
between accused No.1 and PW1. Later, a car came and
three persons got down and assaulted the PW1. If at all
PW1 and PW2 were present on the spot, the PW2 could
have stated that accused No.1 came in the car or he ran
behind the car and instigated the other accused persons to
assault PW1. But the facts remains that accused Nos.3
to 5 actually assaulted PW1 with soda bottle, club and
iron/steel pipe. The presence of accused No.1 was doubtful
on the spot as whether he got down from the car or he
was already present on the spot and quarreling with PW1
even prior to the arrival of the car. There is an
inconsistency in the evidence of the PW1 to PW3 in respect
of presence of accused No.1.
12. The injuries sustained by the PW1 has been
proved by the prosecution by the evidence of PW6-Doctor
who treated PW1 and Investigating Officer-PW9 who came
to the spot and found that the PW1 was sustained injuries
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and shifted him to the hospital by PW4. On enquiry, the
PW1 told that the accused Nos.1 and others were came
and assaulted him. But as stated above, the presence of
the accused No.1 was doubtful on the spot, as he was
present or not and it is not proved beyond reasonable
doubt from the evidence of the other independent
witnesses. The shop owner was also not examined by the
prosecution to prove the incident which was took place in
front of the shop, he could have better witness than PW2
and PW3. Therefore, considering the facts and
circumstances of the case, I am of the view that though
the injuries sustained by the PW1 caused by accused
Nos.3 to 5 and treated by the PW6 and MOs 1 to 3 have
been proved by prosecution, but failed to prove the
presence of accused No.1 beyond reasonable doubt.
Considering the same, the Trial Court though rightly found
that accused No.1 not guilty under Section 114 of IPC the
question of convicting under Section 324 of IPC does not
arises. The Accused No.1 present or instigating other
accused persons to commit offence is nothing but
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abetment punishable under Section 114 read with Section
324 of IPC. But, once the Trial Court doubted the presence
of the accused No.1 and acquitting the offence under
Section 114 of IPC, but convicting the accused No.1 for
the offence under Section 324 of IPC is not correct.
However, the prosecution successfully proved the guilt of
the accused Nos.3 to 5 for the offences punishable under
Section 324 read with Section 34 of IPC. It appears that
PW1 could have also implicated accused No.1 due to
previous enmity and could have presumed that he could
have sent him to assault him. Therefore, the judgment of
the Trial Court though partly correct, but partly committed
error in convicting the accused No.1. The judgment of the
trial Court calls for interference. Hence, I proceed to pass
the following:
ORDER
1) Appeal filed by the appellants is allowed in
part.
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2) The judgment of conviction and sentence
dated 23.11.2017 passed by the Principal
District and Sessions Judge, D.K.,
Mangaluru in S.C.No.172/2016 as against
the appellant/accused No.1 is hereby set
aside and he has been acquitted of the
offence punishable under Section 324
of IPC.
3) However, the conviction and sentence
passed by the Trial Court as against
accused Nos.3 to 5 is upheld and appeal
filed by accused Nos.3 to 5 is hereby
dismissed.
Sd/-
JUDGE
NC
