Karnataka High Court
Devanand S/O Tatyerao Shinde And ... vs The State Of Karnataka on 12 June, 2023
Bench: Hemant Chandangoudar
-1-
NC: 2023:KHC-K:885
CRL.A No. 200232 of 2022
IN THE HIGH COURT OF KARNATAKA,KALABURAGI BENCH
DATED THIS THE 12TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL APPEAL NO. 200232 OF 2022 (U/S 14 (A)-)
BETWEEN:
1. DEVANAND S/O TATYERAO SHINDE
AGE. 50 YEARS, OCC. COOLIE WORK,
R/O. KOTMAL VILLAGE, TQ. BASAVAKALYAN,
DIST. BIDAR-585327.
2. DATTA S/O BHIMARAO SHINDE
AGE. 45 YEARS, OCC. LABOURER,
R/O. KOTMAL VILLAGE, TQ. BASAVAKALYAN,
DIST. BIDAR-585327.
...APPELLANTS
(BY SRI. SANJAY A PATIL,ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
THROUGH, POLICE HULSOOR POLICE STATION,
Digitally signed BASAVAKALYAN CIRCLE, TQ. BASAVAKALYAN,
by LUCYGRACE DIST. BIDAR-585327. R/BY ADDL. SPP,
Location: HIGH
COURT OF HIGH COURT OF KARNATAKA,
KARNATAKA KALABURAGI BENCH-585107.
2. RAHUL S/O RANJEET GAIKWAD,
AGE 32 YEARS, OCC:LABOURER
R/0 KOTMAT VILAGE, TQ BASAVAKALYAN
DIST: BIDAR
(AMENDED VIDE ORDER DTD:14.2.2023)
...RESPONDENT
(BY SRI GURURAJ V HASILKAR, HCGP,
SRI GANESH N NAIK & SRI A S RAWOOR, ADVOCATES FOR R2)
-2-
NC: 2023:KHC-K:885
CRL.A No. 200232 of 2022
THIS CRL.A FILED U/SEC. 14-A (3) OF SC/ST (PA) ACT,
BY THE ADVOCATE FOR THE APPELLANT PRAYING THAT THIS
HONOURABLE COURT MAY BE PLEASED TO A) SET ASIDE THE
IMPUGNED ORDER DATED 31.10.2022 PASSED BY II ADDL.
DISTRICT AND SESSIONS JUDGE, SITTING AT BASAVAKALYAN
IN SPL. CASE NO.14/2017 ON APPLICATION U/SEC. 319 OF
CR.PC. ON ITS FILE THEREBY ALLOWING AND ARRAIGNING
THE APPELLANTS AS PROPOSED ACCUSED NO.4 AND 5 SPL.
CASE NO. 14/2017 PENDING TRIAL. B) PASS ANY OTHER
APPROPRIATE ORDER OR DIRECTION AS DEEMED FIT BY THIS
HONOURABLE COURT UNDER THE FACTS AND
CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
FIR was registered for the offences punishable under
Sections 506, 504, 143, 147, 148, 149, 324, 323 and Sections
3(1)(X) of SC and ST (Prevention of Atrocities) Act, 1989.
2. In the FIR, it was alleged that, the appellants herein
assaulted CW1 and CW5. The police, during the course of
investigation, recorded the statement of CW5 and other
witnesses. Based on the statements of the said witnesses, who
had stated that, they did not see the presence of the appellants
herein as on the date of incident, the police dropped the
appellants from the charge sheet. However, during the trial,
CW1 was examined on behalf of the prosecution, and he stated
the presence of the appellants-herein, and their overt acts
caused to CW5. The learned Sessions Judge based on the
statement of CW1, on the application filed by the prosecution
under Section 319 of Cr.PC, arraigned the appellants-herein as
accused Nos.4 and 5. Hence, this petition.
NC: 2023:KHC-K:885
CRL.A No. 200232 of 2022
3. The learned counsel for the appellants submits that,
the injured - CW5 has not categorically whispered the
presence, and overt act of the appellants. Hence, the
impugned order passed by the learned Sessions Judge based
on the statement of CW1 is not sustainable.
4. The learned High Court Government Pleader for the
respondent No.1 - State and the learned counsel for the
respondent No.2 submit that, the averments made in the FIR
and also the statement of CW1 clearly establishes the overt act
against CW5. Hence, the impugned order passed by the
Sessions Court does not warrant any interference.
5. Considered the submissions of the learned counsel
for the parties.
6. In the FIR, it was specifically alleged that, the
appellants herein assaulted CW5. In the further statement
under Section 161 of Cr.PC, CW5 has not whispered the
presence and overt act of the appellants - accused. Based on
the said statement, the police dropped the name of the
appellants herein from the charge sheet, however, CW1 in his
examination-in-chief has stated the presence of the accused
herein and the overt act against CW5. Hence, in the absence
of evidence of CW5, who is the injured and material witness,
the impugned order passed by the learned Sessions Judge only
on the basis of statement of CW1 against whom, there is no
specific overt act by the appellants herein is not sustainable in
law. Accordingly, I pass the following:
NC: 2023:KHC-K:885
CRL.A No. 200232 of 2022
ORDER
i) Criminal appeal is allowed.
ii) The impugned order dated 31.10.2022 passed by
the II Addl. District and Sessions Judge, sitting at Basavakalyan
in Spl.Case No.14/2017 on the application filed under Section
319 of Cr.PC is hereby set aside and consequently, the
application stands dismissed.
iii) Liberty is reserved with the prosecution to file an
appropriate application under Section 319 of Cr.PC after the
evidence of CW5 is concluded.
In view of the disposal of the appeal, the pending I.A. if
any, does not survive for consideration.
Sd/-
JUDGE
BKM
