Karnataka High Court
State Of Karnataka vs Sri Seenappa on 29 November, 2023
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
1
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CRL.A No. 540 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF NOVEMBER, 2023
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
CRIMINAL APPEAL NO. 540 OF 2017 (A)
BETWEEN:
State of Karnataka
by Huliyar Police Station
Chikkanayakanahalli Taluk
Tumkur District
Represented by State Public Prosecutor
High Court Building
Bengaluru - 560 001.
...Appellant
(By Sri. P. Thejesh, High Court Government Pleader)
AND:
1. Sri Seenappa
Digitally signed by D
HEMA S/o Kariyappa
Location: HIGH COURT
OF KARNATAKA Aged about 39 years
2. Sri Nataraju
S/o Hanumanthaiah
Aged about 41 years
3. Sri Ramanna @ Venkataramaiah
Aged about 50 years
4. Srirangappa @ Rangappa
S/o Sanna Rangaiah
Aged about 39 years
2
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CRL.A No. 540 of 2017
All are residing at Guruvapura
Huliyar Hobli
Tumkur district - 572 101
...Respondents
(By Sri. Vinaya Keerthy M., Advocate for R1 to R4 )
This Criminal Appeal filed under Section 378(1) and (3) of
Cr.P.C. praying to grant leave to appeal against the judgment
and order of acquittal dated 19.09.2016 passed by the III
Additional District and Sessions Judge, Tumkur in
Spl.C.No.45/2013 acquitting the respondents-accused Nos.1 to
4 of the offences punishable under Sections 323, 324, 326,
504, 506 read with Section 34 of IPC and Sections 3(1)(x),
3(2)(v) of SC/ST (POA) act.
This Criminal Appeal, coming on for 'Further Arguments',
through Physical Hearing/Video Conferencing, this day,
Dr. H.B.PRABHAKARA SASTRY J., delivered the following:
JUDGMENT
The State has filed this appeal under Section 378 (1)
and (3) of the Code of Criminal Procedure, 1973
(hereinafter for brevity referred to as 'the Cr.P.C.'),
challenging the judgment of acquittal dated 19.09.2016,
passed by the learned III Additional District and Sessions
Judge at Tumakuru (hereinafter for brevity referred to as
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the 'Special Court') in Special Case No.45 of 2013,
acquitting the accused of the offences punishable under
Sections 323, 324, 326, 504, 506 read with Section 34 of the
Indian Penal Code, 1860 (hereinafter for brevity referred to
as 'the IPC') and under Sections 3(1)(x), 3(2)(v) of
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities
Act, 1989 (hereinafter for brevity referred to as SC/ST (POA) Act).
2. The summary of the case of the prosecution as stated
in the charge-sheet is that, on the date 05.12.2012 at about
8.00 p.m. while the husband of the complainant, by name,
Thimmaiah (CW-2) was in front of his house and was discussing
about building a compound wall around his house, the
respondents who were the accused and were four in numbers
went there and picked up a quarrel with CW-2, warned him
that, incase, if he erects a compound around his house, which
causes inconvenience for the movement of the vehicles coming
to their Milk Dairy, CW2 may have to face serious consequences,
assaulted him with their hands and also with two sticks
inflicting injuries upon him. The complainant, Smt.Sharadamma
(CW-1) who was an eye-witness to the incident joined by
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the other persons who rushed to the spot picked the
injured to Chikkanayakanahalli General Hospital and after
initial treatment and at the advice of the doctor there,
they shifted the injured Thimmaiah to Government
Hospital at Tumakuru where he was treated as an
inpatient. Stating that herself and her husband were
belonging to Bhovi Community, which is a Scheduled
Caste and that by their act, the accused Nos.1 to 4
attempted to commit the murder of her husband, the
complainant instituted a complaint with the complainant
police on 05.12.2012, which came to be registered in the
complainant police station in Crime No.123/2012 for the
offences punishable under Sections 323, 324, 504, 506
r/w Section 34 of IPC and under Section 3(1) (x) of the
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989.
3. After investigation, the complainant police
station filed a charge-sheet against the accused for the
offences punishable under Sections 323, 324, 326, 504,
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506 r/w Section 34 of IPC and under Section 3(1) (x) of
the SC/ST Act.
4. After perusing the materials placed before it
and on hearing both side, initially, the Special Court
framed the charges against the accused for the offences
punishable under Sections 323, 326, 504 r/w 34 of IPC
and under Section 3 Cl.(1) sub cl.(x) of SC/ST (POA) Act
r/w 34 of IPC. Subsequently, through an additional charge,
Section 3(2)(v) of SC/ST Act r/w Section 34 of IPC was
also framed against the accused. Since the accused
pleaded not guilty, the trial was held, wherein, in order to
prove the alleged guilt against the accused, the
prosecution got examined in all nine (9) witnesses as PW-
1 to PW-9, got produced and marked documents from
Exs.P1 to P6(a) and got produced Material Objects, MO-1
and MO-2. From the accused's side, neither any witness
was examined nor any documents were got marked as
exhibits.
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5. After hearing both side, the Special Court, by
its judgment dated 19.09.2016, in Special Case
No.45/2013 acquitted the accused of the offences
punishable under Sections 323, 324, 326, 504, 506 r/w
Section 34 of IPC and Section 3(1)(x) and 3(2)(v) of
SC/ST Act r/w Section 34 of IPC. Challenging the same,
the appellant-State has preferred the present appeal.
6. The appellant-State is represented by the
learned High Court Government Pleader and respondents/
accused are represented by their learned counsel. The
learned High Court Government Pleader and the learned
counsel for the respondents (accused) are physically
appearing in the Court.
7. The Special Court records were called for and
the same are placed before this Court.
8. Heard the arguments from both side. Perused
the materials placed before this Court, including the
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memorandum of appeal, impugned judgment and the
Special Court records.
9. For the sake of convenience, the parties would
be henceforth referred to as per their rankings before the
Special Court.
10. The learned High Court Government Pleader
appearing for the appellant-State in his argument submitted
that all the prosecution witnesses except two witnesses
concerned to the alleged scene of offence panchanama have
supported the case of the prosecution. The material
witnesses who are PW-1, PW-2 and PW-3 have fully
supported the case of the prosecution. Their evidence is
trustworthy, believable and has come in consonance with
each other. Further, the complainant both in her complaint
and in her evidence has clearly explained the delay for
lodging the complaint. Admittedly, when the son and
daughter-in-law of the complainant were residing separately,
it was only the complainant being the wife of the injured was
required to take care of her husband during the period of his
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hospitalisation. As such, the complainant's evidence that
since there was none other to take care of her husband
while he was in hospital, she had to attend to him, as
such, there was a delay in lodging the complaint is fully
convincing and delay has been properly explained.
However, the Trial Court opining that there is an in-
ordinate delay in lodging the complaint has disbelieved the
case of the prosecution.
The learned HCGP further contended that the fact
that PW-1 and PW-2 are belonging to Scheduled Caste is
not denied from the accused side. Since the accused have
assaulted and insulted PW-2 in front of his house,
which was in public view, the offence punishable under
the SC/ST Act for which the accused are charged also
have been proved by the prosecution. He further
submitted that the Special Court without appreciating
the evidence placed before it in its proper perspective
has itself presumed untenable doubts resulting in acquittal of
the accused under the impugned judgment. As such, the
same warrants interference at the hands of this Court.
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11. Per contra, the learned counsel for respondent
Nos.1 to 4 in his argument though did not deny that the
complainant and her husband who were examined as PW-
1 and PW-2 respectively are belonging to Scheduled Caste.
However, vehemently submitted that nowhere PW-1 or
PW-2 have stated that, knowing that they belong to
Scheduled Caste and with an intention to insult them, the
accused have committed the alleged offence and insulted
them in a public view. As such, merely because PW-1 and
PW-2 were said to be belonging to Scheduled Caste, by
that itself, it cannot be presumed that the offence
punishable under Section 3(1)(x) of the SC/ST Act has
been proved. Thus, the Trial Court was justified in holding
that the prosecution has not proved the guilt against the
accused for the alleged offences alleged under the SC/ST
Act.
The learned counsel for the respondents/accused further
submitted that there is an in-ordinate delay in lodging the
complaint, which has not been convincingly explained
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by the prosecution, more particularly, by the complainant.
The contention of the complainant that she was taking
care of her husband in the hospital is not convincing. He
further submitted that in the evidence of prosecution
witnesses, there is a disparity with respect to the alleged
date of filing of the complaint. When the complaint at
Ex.P1 shows it as the same has been filed on 13.12.2012,
whereas, the evidence of some of the prosecution
witnesses including PW-1 says that the complaint was filed
on 06.12.2012, in such an event, if the complaint is filed
on 06.12.2012, then it was for the prosecution to explain
as to the fate of the alleged complaint dated 06.12.2012.
In the absence of any explanation, in that regard from the
prosecution, the very case of prosecution becomes highly
doubtful and unsafe to believe.
With respect to the alleged incident also, the learned
counsel for the respondents submitted that there are
discrepancies in the evidence of PW-1 and PW-2 with
respect to the occurrence of the alleged incident.
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Admittedly, when there were several houses as neighbours
to the place of incident, none of them have been examined
by the investigating officer. This, prima-facie creates a
doubt in the case of prosecution. He also submitted that
the alleged incident is created and imagined by PW-1 and
PW-2 according to their wish. He also submitted that the
alleged seizure of two sticks at MOs-1 and 2 is highly
doubtful, which has probably been appreciated by the
Special Court. Finally, stating that the injuries said to have
been sustained by PW-2 has not been shown to have been
caused by the accused since PW-4, the doctor in his cross-
examination has stated that those injuries can be caused
at the fall of the injured on a hard substance, the learned
counsel submitted that the prosecution case has further
weakened on its own leg, as such, the impugned judgment
of acquittal does not warrant any interference at the hands
of this Court.
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12. After hearing the learned counsels from both
side, the points that arise for our consideration in this
appeal are:
(i) Whether the prosecution has proved beyond
reasonable doubt that on the date, 05.12.2012
at about 8.00 p.m., in front of the house of
PW-2 in Guruvapura Village within the limits of
complainant police station while PW-1 (CW-1)/
Smt.Sharadamma and PW-2 (CW-2)/
Thimmaiah were sitting in front of their house
and talking about putting up of a compound
wall in front of their house, the accused Nos.1
to 4, approaching them, in furtherance of their
common intention of warning and causing
grievous injuries to Thimmaiah abused PW-2
Thimmaiah in filthy language provoking him to
cause the breach of public peace and thereby
have committed an offence punishable under
Section 504 r/w Section 34 of IPC?
(ii)Whether the prosecution has proved beyond
reasonable doubt that on the date, time and
place mentioned at Point No.1 above, the
accused Nos.1 to 4 in furtherance of their
common intention after approaching PW-1 and
PW-2 threatened them of dire consequences,
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incase, if PW-2 proceeds in execution of his
idea of putting up of a compound wall in front
of his house and thereby have committed an
offence punishable under Section 506 r/w
Section 34 of IPC?
(iii) Whether the prosecution has proved beyond
reasonable doubt that on the date, time and
place mentioned at Point No.1 above, the
accused Nos.1 to 4 in furtherance of their
common intention after approaching PW-1 and
PW-2, voluntarily assaulted PW-2 (CW-2)
Thimmaiah with their hands causing hurt to
him and thereby have committed an offence
punishable under Section 323 r/w Section 34
of IPC?
(iv) Whether the prosecution has proved beyond
reasonable doubt that on the date, time and
place mentioned at Point No.1 above, the
accused Nos.1 to 4 in furtherance of their
common intention after approaching PW-1 and
PW-2, voluntarily assaulted PW-2 (CW-2)
Thimmaiah with sticks on his left leg knee and
has caused injuries to PW-2 (CW-2)
Thimmaiah and thereby have committed an
offence punishable under Section 324 r/w
Section 34 of IPC?
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(v) Whether the prosecution has proved beyond
reasonable doubt that on the date, time and
place mentioned at Point No.1 above, the
accused Nos.1 to 4 in furtherance of their
common intention after approaching PW-1 and
PW-2, voluntarily assaulted PW-2 (CW-2)
Thimmaiah with two sticks and in a dangerous
manner resulting in PW-2 (CW-2) Thimmaiah
sustaining grievous injuries and thereby have
committed an offence punishable under
Section 326 r/w Section 34 of IPC?
(vi) Whether the prosecution has proved beyond
reasonable doubt that on the date, time and
place mentioned at Point No.1 above, the
accused Nos.1 to 4 in furtherance of their
common intention after approaching PW-1 and
PW-2, abused PW-2 (CW-2) Thimmaiah by
taking the name of his caste and insulted him
in front of his house, which was in public view
after knowing that the said Thimmaiah and his
wife were belonging to Scheduled Caste and
thereby have committed an offence punishable
under Section 3(1)(x) of SC/ST Act?
(vii) Whether the prosecution has proved beyond
reasonable doubt that on the date, time and
place mentioned at Point No.1 above, the
accused Nos.1 to 4 in furtherance of their
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common intention after approaching PW-1 and
PW-2, having committed an offence
punishable under Section 326 of IPC against
PW-2 knowing that he was belonging to
Scheduled Caste, thereby are punishable
under Section 3(2)(v) of SC/ST Act?
13. Before proceeding further in analysing the
evidence led in the matter, it is to be borne in mind that it
is an appeal against the judgment of acquittal of accused
for the offences punishable under Sections 323, 324, 326,
504, 506 r/w 34 of IPC and Section 3(1)(x) and 3(2)(v) of
SC/ST Act r/w 34 of IPC. Therefore, the accused have
primarily the double benefit. Firstly, the presumption
under law that, unless their guilt is proved, the accused
have to be treated as innocent persons in the alleged
crime. Secondly, the accused have already been 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.
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(a) Our Hon'ble Apex Court, in its judgment in the
case of Chandrappa and others -Vs- State of Karnataka,
reported in (2007) 4 Supreme Court Cases 415, while
laying down the general principles regarding powers of the
Appellate Court while dealing in an appeal against an order
of acquittal, was pleased to observe at paragraph 42(4)
and paragraph 42(5) as below:
" 42(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.
42(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."
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(b) In the case of Sudershan Kumar -Vs- State of
Himachal Pradesh reported in (2014) 15 Supreme Court
Cases 666, while referring to Chandrappa's case (supra),
the Hon'ble Apex Court at Paragraph No.31 of its
Judgment was pleased to hold that, it is the 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.
(c) In the case of Jafarudheen and others -Vs- State
of Kerala, reported in (2022) 8 Supreme Court Cases 440,
at Paragraph No.25 of its 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
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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."
The above principle laid down by it in its previous
case was reaffirmed by the Hon'ble Apex Court, in the
case of Ravi Sharma -vs- State (Government of NCT of
Delhi) and another reported in (2022) 8 Supreme Court
Cases 536 and also in the case of Roopwanti Vs. State of
Haryana and others reported in AIR 2023 SUPREME
COURT 1199.
It is keeping in mind the above principles laid down
by the Hon'ble Apex Court, we proceed to analyse the
evidence placed by the prosecution in this matter.
14. From a perusal of the evidence of PWs-1 to 9,
the undisputed fact remains that PW-1 (CW-1)
Smt.Sharadamma is the wife of PW-2 (CW-2) Thimmaiah.
PW-1 and PW-2 as husband and wife were residing
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together in the village, Guruvapura within
Chikkanayakanahalli Taluk. The accused Nos.1 to 4 who
are the respondent Nos.1 to 4 herein are also the
residents of the very same village and are known to the
family of PW-1 and PW-2. The evidence to this effect
which has come in the evidence of PW-1, PW-2 and PW-3
have remained undenied and undisputed. Further, the
evidence of PW-1 that among the four accused, the
accused No.1 was the Secretary, accused No.2 was the
Director and accused No.3 was the Milk Examiner in a Milk
Procuring Centre in their village, which, generally they call
as the "Local Dairy" has remained undenied and
undisputed. It is in the light of these undenied and
undisputed facts, the case of the prosecution with respect
to the alleged incident is required to be analysed.
15. The very first contention of the respondents,
which was the main contention of them even in the Special
Court also was about the alleged delay in lodging the
complaint, which makes the case of the prosecution about
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the incident highly suspicious and unbelievable. It is PW-
1, PW-2 and PW-3 who have mainly spoken about the
incident in their evidence. Among them, PW-1 has spoken
about she lodging a complaint with respect to the incident.
However, a reference about the lodging of the complaint
about the incident can be seen even in the evidence of
PW-2 and PW-3 also. About the alleged incident of accused
Nos.1 to 4 approaching PW-1 and PW-2 and assaulting
them, more particularly, PW-2 (CW-2) Thimmaiah has
been attempted to be established by the prosecution
through the evidence of PW-1, PW-2 and PW-3 (CW-3)
Manjunatha.
16. PW-1 and PW-2 in their examination-in-chief
have stated that on the evening of 05.12.2012 at about 8
O'Clock both of them were sitting in their house and
talking about erecting a compound wall near their house, it
was at that time, all the accused approaching them in that
place, initiated quarrel with them stating that they would
see how they are going to put up the compound wall and
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dragged PW-2 and started assaulting him with their hands
and sticks.
PW-1 has further stated that in the process, the
accused abused her husband (CW-2) in filthy language as
"fuck your mother" ( ನ ಾ ಾಡ, ನ ಅಮ ಾ ಡ). She also
stated that in the process of assaulting her husband,
accused Nos.1 and 2 assaulted her husband (CW-2) with
sticks; accused Nos.3 and 4 assaulted him with their
hands. Since CW-3 who is their son-in-law came to their
rescue, the accused questioning him as to who is he to
intervene also assaulted him.
PW-1 further stated that due to the assault by the
accused, her husband (CW-2) sustained bleeding injuries.
He was shifted to Chikkanayakanahalli Hospital. From
there, for higher treatment, since they were advised to
take him to the hospital at Tumakuru, he was shifted in
the same Ambulance to Tumakuru where he was treated
in Government Hospital. PW-1 has further stated that
about the alleged incident, she has lodged a complaint,
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which she has identified at Ex.P1. She stated that during
the stay of her husband in the hospital, since none were
there to take care of him, there was delay in she lodging
the complaint. Further stating the police after visiting the
place of incident have seized two sticks from the place
under a panchanama. The witness has identified the said
scene of panchanama at Ex.P2 and identified two sticks at
MO-1 and MO-2 respectively.
17. This witness was subjected to a detailed cross-
examination wherein she adhered to her original version.
However, she has given the description about the
existence of few more houses as neighbours to her house
in the village. She gave the details that accused Nos.1 to
3 were running a Dairy, which was a milk collection centre
in the village and for collection and transportation of the
milk, the vehicles would visit the said collection centre
(Dairy), which passes through in front of her house. She
denied the suggestion that her husband though was a
drunkard but was creating nuisance in the village and
there were few complaints against him in that regard.
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18. PW-2 (CW-2) has further stated that the
accused after approaching him warned him that he shall
not put up compound near his house since it causes
inconvenience for the movement of the vehicles coming to
their Dairy. Since he told them that he is erecting a
compound within his premises, the accused Nos.1 and 2
dragging him outside, started assaulting him, in which
process, accused No.1 assaulted him on his right leg below
the knee with a stick. Similarly, accused No.2 also
assaulted him with another stick on his left leg below the
knee. Accused Nos.3 and 4 also assaulted him with their
hands on the different parts of his body. He has stated
that the accused warned him of taking away his life,
incase if he lodges any complaint with the police. It was
at that time, his wife and CW-3 (Manjunatha) rushed there
and rescued him. The witness further stated that in the
process, accused Nos.1 to 4 assaulted his wife also stating
that in the incident due to the assault by the accused, his
leg was fractured. The witness added that he was shifted
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to Chikkanayakanahalli Government Hospital in an
Ambulance and at the advice of the doctor there, he was
taken to District Hospital at Tumakuru, where he took
treatment as an inpatient. The witness further stated that
while he was in hospital, his wife (CW-1) went to the
police station and lodged a complaint. The police had
visited the hospital on 14.12.2012 and had recorded his
statement. The witness identified the sticks at MO-1 and
MO-2 in the Court.
19. In his cross-examination, from the accused side, PW-
2 adhered to his original version. He denied the suggestion that
he is addicted to liquor. However, he admitted that his
daughter-in-law had lodged a complaint against him, in which
connection, the police had summoned him to the police station
and enquired. He denied the suggestion that he was
encroaching a public road and attempted to erect the
compound. This witness also admitted that there were
neighbouring house near his house including the house of
his son and daughter-in-law. He also stated that when the
incident was going on, his son and daughter-in-law had
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rushed to his rescue, however, they too were assaulted. In
his cross-examination, the witness has admitted a
suggestion that a detailed complaint was given by his wife
with respect to the incident with the complainant police on
06.12.2012. However, he denies that on the very same
day, the police had recorded his statement also. He also
denied a suggestion that by his own fall on a hard surface,
he had sustained injuries upon him.
20. PW-3 (CW-3) Manjunatha who stated that PW-1
(CW-1) and PW-2 (CW-2) are his relatives in the parlance
of Uncle and Aunt has stated that he had been to their
house on 05.12.2012 at about 8.00 p.m. and at that time,
PW-2 was screaming and accused Nos.1 and 2 were
assaulting him with sticks, when himself joined by PW-1
rushed to his rescue, the accused questioned him as to
why he is intervening and supporting PW-2. The accused
also abused him as son of Scheduled Caste "vadda nanna
magane" (ವಡ ನನ ಮಗ ೆ.) The witness stated since the
accused came to quarrel with him, he left the place. Next
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day, he came to know about PW-2 having been admitted
to Government Hospital at Tumakuru and that he helped
him in getting treatment to him in the said hospital. The
witness has identified the sticks at MO-1 and MO-2 in the
Court.
In his cross-examination, the witness has stated that
by the time he visited the spot, the quarrel had already
begun. However, he did not rush to the police station to
give a complaint in that regard. He further stated that he
had been to the police station on 06.12.2012 along with
PW-1. The police received the complaint given by PW-1 at
about 6.30 to 7.00 p.m. He expressed his ignorance that
after enquiry, the police came to an opinion that it was a
frivolous complaint. The denial suggestion made in his
cross-examination from the accused side was not admitted
as true by the witness.
21. From the above evidence of PW-1, PW-2 and
PW-3, it can be seen that though at one place, PW-1 has
stated that there was some delay in lodging the complaint
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about the incident by her with the complainant police and
has attempted to explain the delay, however, in the cross-
examination of the very same witness including in the
cross-examination of PW-2 and PW-3, some suggestions
were made from the accused side showing that the
complaint with respect to the incident was also shown to
have been lodged on 06.12.2012 itself. It is considering
the evidence that has come out regarding the lodging of
the complaint and including the suggestions made to PWs-
1 to 3 in their cross-examination and the response of
those witnesses to the suggestions made, the alleged
delay, if any, in lodging the complaint is required to be
looked into.
22. According to the prosecution, the date of the
commission of the offence is 05.12.2012 at about 8.00
p.m. According to the prosecution, the date of lodging the
complaint is 13.12.2012 at about 11.10 a.m. PW-1, the
complainant in her cross-examination at page No.5 has
stated that she lodged the complaint on 06.12.2012. On
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that afternoon, she had been to the police station to lodge
the complaint. Though she had in her cross-examination
stated that on 13.12.2012, CW-4 had taken her to the
complainant police station, however, merely because she
is said to have been taken to police station on 13.12.2012,
by that itself, it cannot be concluded that the complaint
was lodged on 13.12.2012 only.
PW-2, the alleged injured in the incident and also the
husband of PW-1, in his cross-examination at page No.3
has admitted a suggestion as true that on 06.12.2012, his
wife, i.e., PW-1 lodged a detailed complaint with
complainant police station. It was also suggested to PW-2
in his cross-examination, in the very same page, that the
police visited the hospital on the date, i.e., 06.12.2012.
Thus, by making these suggestions to PW-2, the accused
has taken a stand that a week before the alleged date of
lodging the complaint, which according to prosecution is
13.12.2012, the complainant police had already visited the
hospital and recorded the statement of the injured. Thus,
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by making the said suggestion, the accused himself has
admitted that the complaint was given on 06.12.2012 but
not on the date 13.12.2012, though PW-7 (CW-9)
T.V.Raju, the Police Sub-Inspector of complainant police
station has stated that the complaint was received by him
on 13.12.2012.
Further, PW-2 has admitted a suggestion made to
him in his cross-examination from the accused side as
true, that, along with his wife, i.e., PW-1 (CW-1)
Smt.Sharadamma, even PW-3 (CW-3) Manjunatha had
also been to the police station to lodge the complaint.
The said PW-3 (CW-3) Manjunatha in his cross-
examination from the accused side has stated that along
with the complainant, he had been to the police station on
06.12.2012. This undenied statement elicited by none else
than the accused further corroborates the say of PW-1 and
PW-2 that the complainant had been to the police station
on 06.12.2012 to lodge the complaint and that PW-3 (CW-
3) accompanied her.
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It was suggested to PW-3 in his cross-examination
from the accused side that PW-3 along with CW-4 and
others threatened the Deputy Superintendent of Police at
his office that incase if they do not register the complaint,
they would go on strike. Though the witness has not
admitted the said suggestion as true, that they threatened
the Deputy Superintendent of Police, however, by making
the said suggestion, the accused have shown that the
complainant with CW-3 and CW-4 had approached the
police at the earliest point of time, however, they were not
prepared to register the crime.
This inference is further supported by one more
suggestion made to PW-3 in his cross-examination from
the accused side, that, it was at their pressure, complaint
at Ex.P1 was registered on 13.12.2012. Thus, the
suggestion was made from the accused side that it is only
after the pressure, the complaint was registered, which
means otherwise, it would not have been registered.
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Added to the above, it is suggested that complaint
was registered on 13.12.2012, but not that the complaint
was given on 13.12.2012. It is also for the reason that
even though PW-7 has stated that the complainant
appeared before him on 13.12.2012 and lodged a
complaint as per Ex.P1, however, on the very front page
of the complaint at Ex.P1, there is an endorsement made
on the left side margin of the complaint mentioning:
"received on 12.12.2012 at 8.00 p.m.
Sd/- 12.12.2012"
It means the complaint was not given on 13.12.2012
but it was on some earlier date.
23. PW-4 (CW-7) Dr.Sachin, the Medical Officer at
Government General Hospital, Chikkanayakanahalli in his
evidence has stated that the injured Thimmaiah (PW-2/
CW-2) was brought to their hospital on the dated,
05.12.2012 at 10.45 p.m. with the history of assault, by
Huliyuru Police (complainant police). The said statement
of the witness has not been denied from the accused side.
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Thus, even according to the Doctor, the injured was
brought on 05.12.2012 by none else than the complainant
police that too with the history of assault. As such, before
10.45 p.m. on 05.12.2012, when the complainant police
are shown to have brought the injured (PW-2) to the
hospital, they knew about the alleged incident. It is
because of the same, they could bring the injured (PW-2)
to the hospital with the history of assault.
Further, the very same Doctor (PW-4) in his cross-
examination has stated that they have sent MLC intimation
to the police station about the appearance of the injured
with the history of assault. Thus, even an MLC was also
given by the Doctor, immediately after injured was
brought to his hospital by the complainant police on
05.12.2012. The said statement about the Doctor giving
MLC was elicited from the accused side itself and the said
suggestion to PW-4 has also remained undenied and
undisputed.
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24. Lastly, even though PW-7 who claims to have
registered the crime, in his cross-examination has stated
that prior to the date, 13.12.2012, their station had not
received any information about the present incident,
however, the undenied evidence of PW-4, the doctor that
on 05.12.2012 at about 10.45 p.m. itself, the injured was
brought to his hospital by none else than the complainant
police shows that the complainant police had the
information and knowledge about the alleged incident
much much prior to the date, 13.12.2012.
25. Added to this, in the very cross-examination of
PW-7 from the accused side, a suggestion was made to
the witness suggesting that the complainant had given a
complaint earlier to (emphasis supplied) 13.12.2012,
however, by making an enquiry, finding no proof in it, it
was not registered. Later, at the pressure of Dalitha
Sangarsha Samithi, a case came to be registered. Though
the witness has not admitted the same to be true, still by
making the said suggestion repeatedly, the accused have
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themselves shows that the complainant police were
informed and they were aware about the incident and the
complaint was also given to them much prior to
13.12.2012. As such, the evidence of PW-7, the case
registering police officer go to show that, is not believable
as true regarding the date of receipt of complaint and also
about the alleged non-receipt of information by his police
station earlier.
26. Added to the above, thought the complaint at
Ex.P1 is shown to have been given and registered on
13.12.2012 and even after taking the same as true, still,
the complainant in the very complaint itself has explained
the reason for delay stating that since there were nobody
to take care of her husband in the hospital, there was
delay in lodging the complaint. She has reiterated the
same even in her evidence also. The Wound Certificate at
Ex.P4 also go to show that injured PW-2 was treated as an
inpatient in the District Hospital at Tumakuru, which was
not the place of residence of PW-1 or PW-2. The evidence
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of PW-1 and PW-2 that they two alone reside in their house
and though they have a son and daughter-in-law, but they
are residing separately since having remaining undenied and
undisputed, the evidence of PW-1 that there was none to
take care of her husband while he was under treatment in
the hospital appears to be more truthful and believable.
27. For all these reasons, argument of the learned
counsel for the accused that there is inordinate delay in
lodging the complaint, as such, the very incident is
doubtful is not acceptable. However, even though the
analysis made above would go to show that the
complainant had approached the complainant police at the
earliest point of time, not later than 06.12.2012 and that the
complainant police were aware of the incident since they
themselves had taken the injured (PW-2) to
Chikkanayakanahalli Government Hospital on 05.12.2012 at
10.45 p.m., as such, the burden would be on the prosecution
to explain as to why did not the complainant police took up
appropriate action immediately after coming to know
about the incident on 05.12.2012 itself but the same
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would not take away the evidentiary value of the evidence
of PW-1, PW-2 and PW-3 with respect to the incident.
Needless to say, the latches, if any, on the part of the
investigating officer or the case registering authority
cannot be allowed to cause injustice to the true victim in
the case. As such, a mere alleged delay, if any, would not
go to the root of the case of the prosecution in suspecting
the case of prosecution.
About the incident of alleged assault upon PW-2, as
observed above, it is PW-1, PW-2 and PW-3 who have
uniformly stated about the occurrence of the incident.
28. The learned counsel for the respondents in his
argument vehemently submitted that the evidence of PW-
3 (CW-3) Manjunatha is not believable for the reason that
none else than his Aunt, i.e., PW-1 herself has stated that
the said Manjunatha visited them only on the next day
after the incident. As such, the evidence of PW-3 that he
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was an eye-witness to the incident creates a serious doubt
making his evidence unsafe to believe.
Per contra, the learned HCGP in his argument
submitted that the materials placed before the Court,
more particularly, the evidence lead by the prosecution
shows that there were two persons with the same name,
Manjunatha and incidentally, both were shown to be son of
Thimmaiah.
29. PW-1 in her cross-examination has stated that
the name of her son is also Manjunatha. Admittedly, the
father is Thimmaiah who is PW-2 injured in the case. PW-
3 (CW-3) is also Manjunatha, Son of Thimmaiah. However,
as rightly submitted by the learned counsel for the
respondents, the person Thammaiah whom PW-1 has
referred as the one who visited them with respect to the
incident and said to have visited them on the next day of
the incident is not their son, Manjunatha, but it is PW-3
(CW-3) Manjunatha since at one place, in her evidence at
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page No.5, she has given the name of the said Manjunatha
along with his rank in the charge-sheet as PW-3.
30. No doubt, the very same PW-1 in her
examination-in-chief in the beginning itself has stated that
the said Manjunatha (CW-3) had been to their house on
05.12.2012 to talk to them, however, she could not
adhere to her original version in her cross-examination.
On the other hand, she herself stated that the said
Manjunatha visited their village on the next day and he
was doing stone contract work. Had really PW-3 (CW-3)
Manjunatha visited the village of PW-1 and PW-2 on
05.12.2012 itself, PW-1 would have necessarily adhered to
her original version and would not have stated in her
cross-examination that it was on the next day of the
incident, the said Manjunatha visited their place.
Therefore, when PW-1 who is none else than the alleged
eye-witness and the complainant in the case herself has
stated that the said Manjunatha (CW-3) came to their
village only on the next day of the incident, it is not safe to
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believe that PW-3 (CW-3) Manjunatha was an eye-witness
to the alleged incident. As such, it is unsafe to believe his
evidence that he witnessed the incident and has seen the
alleged overt-act of accused Nos.1 to 4.
31. Since the evidence of PW-3 Manjunatha has
proven to be not safe to believe, the only other witnesses
who claims to have given a direct account about the
alleged incident are PW-1 and PW-2. The evidence of both
PW-1 and PW-2 that accused Nos.1 to 4 approached them
while these two witnesses were sitting near their house in
the late evening on 05.12.2012, initiating a quarrel with
PW-2 and objecting for him to put up a compound wall in
front of his house gains support from the further un-denied
evidence of PW-1 in her cross-examination that accused No.1
was the Secretary, accused No.2 was the Director and
accused No.3 was the Examiner of the Milk in the local Dairy
(Milk Collection Centre). It is further corroborated by the
explanation given by her that every evening, the vehicles
from KMF visits the local Dairy and carries the
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milk Can to their place. The said undenied evidence was
further corroborated from the suggestions made to PW-1
in her cross-examination and elicited her response from
none else than the accused side. The same is clear in the
cross-examination of PW-1 at page No.4 where it was
suggested to the witness that PW-1 and PW-2 with an
intention to obstruct the movement of the vehicles to the
local Dairy were encroaching a public road in front of their
house and attempting to erect a compound wall. It was
also suggested to PW-1 in her cross-examination that the
Secretary of the Dairy and Director had approached them
(PW-1 and PW-2) and requested them not to encroach the
road since it causes inconvenience for the movement of
the vehicles. Further, it was also suggested to PW-1 from
the accused side that it was in connection with the same,
there was rivalry between them. Though the witness has
not admitted these suggestions as true, however, by
making these suggestions and also taking those
suggestions as one of their defence, the accused have
admitted about the existence of the local Dairy in the
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village and any vehicle going to that local Dairy has to be
necessarily passed in front of the house of PW-1 and PW-2
and more importantly, the accused Nos.1, 2 and 3 being
the Secretary, Director and the Milk Examiner of the Dairy
previously also approaching PW-2 and asking him not to
put up compound wall.
32. This elicitation of the statement in the cross-
examination of PW-1 by none else than from the accused
side would corroborate the evidence of PW-1 and PW-2.
That accused Nos.1, 2 and 3 as the office bearers of the
Dairy joined by accused No.4 approached them on the
evening of the date of incident and initiated a quarrel in
connection with PW-2's idea of erecting a compound wall in
front of his house and objecting for the same stating that the
same would obstruct the movement of the vehicles to their
Dairy. Thus, in the speed of shaking the evidence of PW-1,
which has come in full support of the case of prosecution,
the accused themselves have led to admit several things,
which was helpful to the prosecution in proving the motive
beyond the commission of the crime without much effort.
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33. The evidence of PW-1 that among the four
accused who approached them on the evening of the
incident, it was accused Nos.1 and 2 who assaulted her
husband with sticks and remaining two accused assaulted
her husband with their hands and legs is further
corroborated in the evidence of none else than PW-2, the
injured. He too has given the very similar picture of the
alleged incident and has specifically and clearly stated that
it was accused Nos.1 and 2 who apart from dragging him
outside his house also assaulted with sticks on his both
legs below the knee. He has even described the overt-act
of the accused Nos.1 and 2 individually stating that
accused No.1 assaulted him with a stick below his right
knee, whereas, accused No.2 assaulted him with a stick
below his left knee, the remaining accused Nos.3 and 4
were assaulting him with their hands on several parts of
his body. The said evidence of none else than PW-2 which
has stood corroborated from the evidence of PW-1 who
also shown her to be an eye-witness to the incident finds
no reason to disbelieve them. Inspite of the same, as
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submitted by the learned HCGP in his argument by relying
upon a case of the judgment of the Hon'ble Apex Court in
LAKSHMAN SINGH Vs. STATE OF BIHAR (NOW
JHARKHAND) and connected matters reported in (2021) 9
Supreme Court Cases 191 when the evidence of an
injured witness is reliable and trustworthy, the sole
evidence of the injured witness can be the basis for
conviction. In the said case, our Hon'ble Apex Court has
observed that the evidence of the injured eye witnesses
cannot be ignored and requires to be believed.
The principle laid down by the Hon'ble Apex Court in
LAKSHMAN SINGH'S case (supra) was reiterated in its
subsequent judgment ASHOK KUMAR Vs. STATE OF
UTTAR PRADESH AND CONNECTED MATTERS in (2022
SCC OnLine SC 1525) in para Nos.134 and 183 was
pleased to reiterate its observation regarding the
evidentiary value of the injured eye-witnesses. By
referring to its several of the previous cases, it has
reiterated the principle laid down by it that the evidence of
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the injured witness cannot be discarded with and can be
the sole basis for conviction, provided, the evidence of
such an injured eye-witness imbibes confidence in the
Court to believe the same.
As such, even though the evidence of PW-2 as an
injured which has successfully withstood the thorough and
searching cross-examination from the accused side itself is
sufficient to believe that accused Nos.1 and 4 have
inflicted injuries upon him by assaulting him with stick and
by their hands, still, the evidence of PW-1 also
corroborates the same, thus, further strengthening the
case of prosecution for proving the alleged guilt against
the accused.
34. The medical evidences lead by PW-4 (CW-7)
Dr.Sachin further corroborates the case of the prosecution.
The said witness has stated that while working as a
Medical Officer at Government General Hospital,
Chikkanayakanahalli, the complainant police brought a
person by name, Thimmaiah as an injured with the history
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of assault. He examined the said injured patient on
05.12.2012 at 10.45 p.m. and noticed:
(i) tenderness and swelling over the right leg;
(ii) tenderness and swelling over the left leg.
The witness has stated that he referred the patient to
District Hospital, Tumakuru for higher treatment. The said
injured was treated as an inpatient in the said Government
Hospital at Tumakuru and had given their report, it is
based on the report of the said Hospital, he noticed that
the injured had sustained a fracture injury also, which was
injury No.2 observed by him as above. Since it was a
fracture injury, he concluded that the said injury was
grievous in nature and the other one was simple in nature.
Accordingly, he has issued a Wound Certificate at Ex.P4.
After seeing the two sticks at MOs-1 and 2, the witness
has stated that the injuries noticed with the injured are
possible to be caused when assaulted with MOs-1 and 2.
The very same witness (PW-4) in his cross-
examination in the very beginning sentence has also
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stated that the injuries found on the injured are also
possible to be caused when a person falls on a hard
surfaced earth. The other suggestions that he has not
mentioned on which particular portion of the leg, the
injury was found on the injured was admitted by this
witness as true. He also has stated that the investigating
officer had not produced before him the sticks at MO-1
and MO-2 and obtained his opinion.
35. It is based upon the said statement of PW-4,
the Doctor in his cross-examination that the injuries found
on the injured are also possible to be caused when a
person falls on a hard surfaced earth, the learned counsel
for the respondents in his argument vehemently submitted
that when those injuries are possible to be caused by a fall
of a person on a hard surface, it cannot be believed that
PW-2 sustained those injuries only at the assault alleged
to have been inflicted upon him by the accused.
36. No doubt, the evidence of PW-4 would go to
show an alternate possibility of the occurrence of the
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injuries which were found on the person of PW-2. But
when the trustworthy and believable evidence of PW-2
who is none else than the injured himself clearly shows
that he sustained injuries only at the assault made to him
by none else than accused Nos.1 to 4 against him, and
also when PW-1 as an eye-witness has corroborated the
evidence of PW-2 by stating that she has seen the accused
Nos.1 and assaulting her husband (PW-2) among whom,
accused Nos.1 and 2 assaulting her husband (PW-2) with
sticks at MOs-1 and 2, the possibility of occurrence of
similar injury by alternate means cannot be taken as the
one which makes the case of prosecution suspicious or
unbelievable. On the other hand, the alternate possibility
of occurrence of the injury requires to be not given
importance than what it deserves but the evidence of
PWs-1 and 2, which is also corroborated by the evidence
of the very same Doctor (PW-4) that the injuries
found on PW-2 are possible to be caused when assaulted
with MO-1 and MO-2 requires to be accepted and believed.
As such also, the argument of the learned
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counsel for the respondents (accused Nos.1 to 4) on the
said point is not acceptable. On the other hand, the
medical evidence also stands in support of the case of the
prosecution and corroborates the evidence of PW-1 and
PW-2.
37. The weapons used in the commission of the
crime according to the prosecution are the two sticks at
MO-1 and MO-2. According to the prosecution, those two
sticks were found in the place of the incident and the same
were seized at the time of drawing scene of offence
panchanama by the investigating officer, i.e., PW-9 (CW-
10) Vamshi Krishna on 14.12.2012. According to PW-9,
the investigating officer on 14.12.2012, he visited the
place of the incident as shown to him by PW-1 and drew a
scene of offence panchanama as per Ex.P2 in presence of
PW-5 (CW-5) M.Ganesha and PW-8 (CW-4) E.Nagarajau
and during the drawing of scene of offence panchanama,
he also saw the two sticks shown by the complainant as
the one used in commission of the crime by the accused
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and seized them, which the witness has identified at MO-1
and MO-2.
38. The said panchas to the scene of offence
panchanama, i.e., PW-5 and PW-8 have not supported the
case of prosecution. They have stated that they do not
know what is written in the panchanama except putting
their signature to the said document at the request of the
police. Even after treating them hostile, the prosecution
could not get any support from them by cross-examining
them. Taking the absence of support of PW-5 and PW-8 to
the case of the prosecution, in his favour, the learned
counsel for the respondents contended that the absence of
the support by PW-5 and PW-8 further makes the case of
prosecution highly suspicious to believe.
39. No doubt, the evidence of panch witnesses in
an alleged incident of crime is also important material, but
in the case like the one on hand, when the very material
witnesses including the injured witness and one of the
important eye-witness have supported the case of
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prosecution about the incident, the place of incident and
also the weapon used, further when the Doctor in his
evidence has also opined that the weapons at MOs-1 and 2
can cause the injuries found on the injured (PW-1 and PW-
2) and in the circumstance, when from the accused side
itself, by making suggestion to PW-1, it was admitted that
the accused were not happy with PW-2 having an idea of
putting up a compound wall in front of his house and had
approached him previously also with a request not to put
up such a compound wall, the total inference that can be
drawn would be only one that the incident has taken place
at the very same spot as contended by PW-1, which was in
front of their house and there is all the possibility of the
sticks being used in the commission of the crime and
making its availability to the investigating officer during
the time of panchanama in the said place of offence after
the incident.
The Special Court while analysing the evidence on
the said aspect of the alleged seizure of the sticks at MO-1
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and MO-2 expressed its suspicion about the presence of
the sticks in the place of the offence for such a long time
after the incident. However, in the process, it failed to
notice that the sticks were not laying in the spot when the
scene of panchanama was drawn on 14.12.2012 but,
those sticks were produced before the investigating officer
by none else than the complainant stating that it was with
the very same sticks, accused-Seenappa (accused No.1)
and accused-Nataraju (accused No.2) assaulted her
husband and had thrown the same in the spot and that
she had kept them safely. The very scene of offence
panchanama mentions that those sticks were not found
lying in the spot, however, after the incident, PW-1 had
kept them safely and had handed it over to the
investigating officer at the time of drawing the scene of
offence of panchanama at Ex.P2. As such, the said
reasoning given by the Special Court to further disbelieve
the case of prosecution stating that the alleged seizure of
MO-1 and MO-2 creates doubt in the case of the
prosecution is also not tenable.
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40. In the light of the above, the evidence of the
rest of the witnesses, who mainly, are PW-7 and PW-9
would not be of much importance. PW-7 (CW-9) T.V.Raju,
the then-Police Sub-Inspector of complainant police station
has stated about he receiving the complaint at Ex.P1 on
13.12.2012 and also registering it in their station as a
crime, preparing an FIR as per Ex.P6 and submitting the
same to the Court. However, the veracity of his evidence
and to the extent, how far that can be believed has been
analysed in the earlier part of this judgment. As such, his
evidence whether taken into consideration or not would
not shaken or dilute the case of prosecution.
41. The evidence of PW-9 (CW-10) Vamshi Krishna, the
investigating officer about he conducting the investigation
in the matter including recording the statement of the
witnesses including the injured and collecting the Wound
Certificate as per Ex.P4 stands corroborated by the
evidence of the witnesses as discussed above. His
evidence that he collected the Caste Certificate of the
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accused and PW-1 and PW-2 from the Tahsildar as per
Ex.P3 has not been seriously disputed. Thus, it stands
proved beyond doubt by the prosecution that on the date,
05.12.2012 at about 8.00 p.m., the accused Nos.1 to 4 in
furtherance of their common intention approached PW-2
and assaulted him with their hands and legs and also with
two sticks at MOs-1 and 2. Consequently, PW-2 sustained
simple and grievous injuries. The prosecution has alleged
that the accused, thus, by their acts have committed the
offences punishable under Sections 323, 324, 326 r/w
Section 34 of IPC.
42. No doubt, the prosecution could able to prove that
the act of the accused in assaulting PW-2 was voluntary
and without any provocation from the injured side.
Further, the prosecution could also able to establish that
the weapon used in the commission of the crime were the
two sticks at MO-1 and MO-2. The prosecution could also
able to prove that due to the assault by the accused, PW-2
sustained two injuries; one among which was grievous in
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its nature. However, to attract Section 326 of IPC, it is not
just sufficient that the accused have voluntarily caused
grievous injuries upon the injured but it is also required
that such a voluntary act of the accused in causing
grievous hurt to the injured must be by dangerous
weapons or by some dangerous means. In the instant
case, the weapons used by the accused which are two
sticks at MOs-1 and 2 are described as two bamboo sticks
in the scene of offence panchanama, which bamboo sticks
can be held by hand; one is measuring 3½ feet in length
and another is measuring 2½ feet in length. Thus, these
two bamboo sticks of this length, which can be held easily
with hand cannot be considered as a heavy club or a
dangerous weapon. According to PW-1 and PW-2, the
accused have assaulted PW-2 on the lower part of his
lower limb, i.e., below the knee. As such, the part
and the place of the organ to which the injuries
were inflicted is also not vital organ of the body. As such,
the means of assault cannot be termed as
dangerous. Thus, one of the essential ingredients falls
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short in the case of prosecution to prove the alleged guilt
of the accused punishable under Sections 326 of IPC.
However, the proven act of accused as against PW-2
in voluntarily causing grievous hurt to him with sticks
would squarely falls within the ambit of Section 325 of
IPC.
43. It is also the evidence of PW-1 and PW-2 that
accused apart from inflicting injuries upon PW-2 by
assaulting him with two sticks at MO-1 and MO-2 have
assaulted him with hands and legs. Both PW-1 and PW-2
have stated that accused Nos.3 and 4 have assaulted PW-
2 with their hands on various parts of his body. The
medical evidence given by PW-4 coupled with the Wound
Certificate at Ex.P4 also shows that the injured (PW-2) had
sustained a simple injury also has a tenderness and
swelling over the left leg. Thus, the acts of the accused
who had come together, in furtherance of their common
intention to question PW-2 and to assault him have
voluntarily caused hurt to PW-2, thereby, attracting
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Section 323 of IPC. As such, the prosecution could able to
prove the guilt against the accused punishable under
Section 323 r/w Section 34 of IPC also.
However, the Trial Court failed to notice the same
and in a hurried manner proceeded to hold that the
prosecution could not able to prove the alleged guilt
against the accused for the offences punishable under
Sections 323, 324 and 326 of IPC.
44. The accused are also charged for the offences
punishable under Sections 504 and 506 r/w Section 34 of
IPC. No doubt, PW-1 in her evidence has stated that the
accused after approaching her husband abused him in
filthy language ( ನ ಾ ಾಡ, ನ ಅಮ ಾ ಡ). Had really the
accused had abused PW-2 in filthy language, then
definitely, PW-2 against whom such use of language is
alleged to have been made, necessarily stated in his
evidence that accused had abused him in a
particular manner and had provoked him in any way.
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However, the evidence of PW-2, who is none else than the
affected person in the incident is totally silent in this
regard. As such, it is not safe to believe that the accused
have committed an offence punishable under Section 504
r/w Section 34 of IPC.
Similarly, with respect to the other offence of the
accused threatening PW-2 of dire consequences has been
spoken only by PW-2 in his evidence. Had really the
accused had threatened PW-2 of dire consequences
including taking away his life, then, PW-1 who was an eye-
witness to the alleged incident should have observed the
same and without fail would have stated in her evidence
about the accused putting threat to her husband.
However, PW-1 though has stated that PW-2 (CW-2) was
also assaulted in the incident, has not whispered that the
accused had threatened her husband of dire
consequences. Under such circumstance, it is not safe to
hold that the prosecution could able to prove the guilt
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against the accused punishable under Section 506 r/w
Section 34 of IPC.
45. The accused are also charged with the offence
punishable under Section 3(1)(x) and 3(2)(v) of SC/ST Act.
In order to attract Section 3(1)(x) of SC/ST Act, it is not just
sufficient, if it is proved that the affected or injured person
were belonging to either Scheduled Caste or Scheduled
Tribe. But it is also necessary that the accused knowing fully
well that the persons against whom they are committing
crime belong to either Scheduled Caste or Scheduled Tribe
should have intentionally insulted or intimidated them with
an intent to humiliate them in any place within public view.
In the instant case, no doubt, the incident has taken
place outside the house of PW-2, which according to the
accused was also was a part of the public road, as such, it
was in public view. However, neither PW-1 nor PW-2 have
in clear terms stated as to how they were insulted at the
act of the accused or about the intention of the
accused to insult them or to humiliate them. Neither of
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these two witnesses anywhere in the evidence have stated
that any of the accused at the time of the incident have
abused them by taking the name of their caste. As such,
even though the Caste Certificate at Ex.P3 shows that PW-
1 and PW-2 were belonging to a caste called 'Bhovi', which
according to prosecution falls under the Scheduled Caste
and Ex.P3 also shows that accused Nos.1 to 4 does not
belong to either Scheduled Caste or Scheduled Tribe, by
that itself, it cannot be held that the accused have
committed the offence punishable under Section 3(1)(x) of
the SC/ST Act. As such, the finding of the Special Court on
the said aspect does not warrant any interference at the
hands of this Court.
Lastly, Section 3(2)(v) of the SC/ST Act would come
into operation only when the offence proved is punishable
with imprisonment for a term of ten (10) years or more
committed against a person knowing that such person is a
member of the Scheduled Caste or Scheduled Tribe. In the
instant case, though PW-1 and PW-2 were belonging to Scheduled
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Caste and the knowledge to that effect can be imputed to
the accused, however, the offence proved against the
accused is not punishable with imprisonment for a term of
ten (10) years or more. As such, Section 3(2)(v) of the
SC/ST Act is also not attracted in the instant case.
46. The motive behind the commission of the crime
has already been discussed above in detail while analising
the evidence regarding the incident. However, at the cost
of repetition, it is observed that the prosecution could able
to establish that the plan of PW-2 to erect a compound in
front of his house was seriously objected to by the accused
who on the earlier occasion also had approached PW-2 and
asked him not to put up the compound since erecting any
such compound, according to the accused, would cause
obstruction to the movement of the vehicles approaching
their Dairy. PWs-1 and 2 in their evidence have reiterated
the said motive behind the commission of the crime.
Infact in the cross-examination of PW-9 the investigating
officer, suggestions were made from none else than the
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accused side about the existence of the Dairy near the
house of PW-2 and necessity of any vehicle going to the
said Dairy to be passed in front of the house of PW-2.
Thus, it is established that the accused never wanted the
erection of any compound or structure by PW-2, which
according to them would cause obstruction for the
movement of the vehicle coming to their Dairy. It is in
that regard the accused who had previously asked PW-2
not to put up such compound have on the date of the
incident, which was on 05.12.2012 took a drastic step of
assaulting PW-2 with MOs-1 and 2. Thus, motive behind
the alleged commission of the crime also stands
established.
47. The defence of the accused throughout the case
was that PW-2 was a drunkard, addicted to liquor and had
earned a bad name in the village. As such, he on his own
had fallen on a hard substance and sustained injuries
found on his body. Suggestions to that effect were made
in the cross-examination of PW-1 and PW-2. However,
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both the witnesses have denied the said suggestion as
true. No doubt, PW-4, the Doctor has stated that the
injuries found on the injured (PW-2) can also possible to
be caused when a person falls on a hard and rough
surface. However, as analysed above, the evidence of
prosecution, more particularly of PW-1 and PW-2 has
proved beyond reasonable doubt that the injury sustained
by PW-2 was not by accidental fall but it was at the
specific intentional act of the accused voluntarily causing
grievous hurt to him both by hands and by using the sticks
at MOs-1 and 2. As such, the written statements of the
accused also does not stand to suspect the prosecution
case. Consequently, the impugned judgment, which had
given a clean chit to all the four accused from all the
alleged offences warrants interference at the hands of this
Court and the impugned judgment warrants modification
on the lines observed above.
Accordingly, we proceed to pass the following:
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ORDER
(i) The Criminal Appeal stands allowed in part.
(ii) The impugned judgment of acquittal dated
19.09.2016 passed by the learned III
Additional District and Sessions Judge,
Tumakuru in Special Case No.45/2013
stands modified to the effect that the
judgment of acquittal acquitting accused
No.1-Sri.Seenappa, Son of Kariyappa,
accused No.2-Sri.Nataraju, Son of
Hanumanthaiah, accused No.3-
Sri.Ramanna @ Venkataramaiah and
accused No.4-Srirangappa @ Rangappa,
Son of Sanna Rangaiah, all are residing at
Guruvapura, Huliyar Hobli, Tumkur District
-572101 for the offence punishable under
Section 323 of IPC stands set aside.
(iii) The accused Nos.1 to 4 stands convicted for
the offence punishable under Section 323
r/w Section 34 of IPC.
(iv) The acquittal of accused Nos.1 to 4 for the
offence punishable under Section 326 r/w
34 of IPC stands modified.
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(v) The accused Nos.1 to 4 are held guilty of
having committed the offence punishable
under Section 325 r/w Section 34 of IPC.
(vi) The rest of the portion of the judgment of
acquittal of accused Nos.1 to 4 for the
offences punishable under Sections 324,
504, 506 r/w Section 34 of IPC and under
Section 3(1)(x) and 3(2)(v) of SC/ST Act
r/w Section 34 of IPC stands confirmed.
To hear on sentence the matter stands passed over.
Sd/-
JUDGE
Sd/-
JUDGE
DH
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DR.HBPSJ & UMBAJ:
29.11.2023
(VIDEO CONFERENCING / PHYSICAL HEARING)
HEARING ON SENTENCE
Called again.
Heard the submissions of the learned counsel for the
accused/respondent Nos.1 to 4 and the learned High Court
Government Pleader on the sentence.
(accused Nos.1 to 4) submitted that even according to the
prosecution, it was accused Nos.1 and 2 who were said to
have assaulted PW-2 with weapon, whereas, accused
Nos.3 and 4 have only assaulted with their hands.
Further, the weapon used is also not a dangerous weapon,
which is only a bamboo stick. Furthermore, the injury
inflicted is not on any vital part of the body but below the
knees of lower limbs. He also submits that all the four
accused are the only bread winner in their family, having
large number of dependants and none of them have any
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criminal antecedents, as such, a lenient view be taken into
consideration.
Per contra, the learned HCGP submitted that the four
persons in furtherance of their common intention have
attacked and assaulted PW-2 and made use of the
weapons in assaulting him. They have caused fracture
injury upon the injured. As such, in the circumstances of
the case, the maximum punishment, which can be
ordered, be ordered in the instant case.
It is the sentencing policy that the sentence ordered
must be proportionate to the gravity of the proven guilt.
It shall be neither exorbitant nor for the name-sake.
In the instant case, the accused Nos.1 to 3 claims to
be the Secretary, Director and employee of the Milk Dairy.
The prosecution case go to show that the said Milk Dairy is
located near the house of PW-2. As such, all the vehicles
required to go to Milk Dairy should necessarily go in front
of the house of PW-2. Therefore, so long the Milk Dairy
would be there in the said location and it would be
necessary for the vehicles going to the Milk Dairy to pass
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through in front of the house of PW-2, the said PW-2 can
apprehend any caution or warning or objection from the
accused. As proved, PW-2 has sustained a grievous injury
to one of the important limb of the body. Though the
weapon used is not dangerous in nature, however, the
injury inflicted cannot be ignored. Further, all the accused
have committed the alleged offence in furtherance of their
common intention. As such, common intention, which is
proved by the prosecution also cannot be ignored. Under
the said circumstance, we are of the opinion that none of
the accused deserves the benefit under the Probation of
Offenders Act, 1958. However, considering the mitigating
factors submitted by the learned counsel for the accused
that the accused are the sole bread earners in their family
having large number of dependants upon them and also
considering the facts and circumstances of the case, we
proceed to pass the following:
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ORDER ON SENTENCE
(i) The accused No.1-Sri.Seenappa, Son of
Kariyappa, accused No.2-Sri.Nataraju
Son of Hanumanthaiah, accused No.3-
Sri.Ramanna @ Venkataramaiah and
accused No.4-Srirangappa @ Rangappa,
Son of Sanna Rangaiah, all are residing at
Guruvapura, Huliyar Hobli, Tumkur District
-572101 are sentenced to undergo simple
imprisonment for a period of four (4) years
and to pay a fine of `3,000/- (Rupees
Three Thousand Only) each and in case of
default of payment of fine, to undergo
simple imprisonment for a further period of
three months, for the offence punishable
under Section 325 of the Indian Penal
Code, 1860.
(ii) For the offence punishable under
Section 323 of the Indian Penal Code,
1860, accused Nos.1 to 4 shall undergo
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simple imprisonment for a period of six
months.
(iii) Both the sentences shall run concurrently.
(iv) The accused Nos.1 to 4 are entitled for the
benefit of set-off under Section 428 of the
Code of Criminal Procedure, 1973.
(v) Out of the total fine amount of `12,000/-
(Rupees Twelve Thousand Only) paid by
the accused, if any, a sum of `10,000/-
(Rupees Ten Thousand Only) be paid to
PW-2/Thimmaiah as compensation.
(vi) The remaining sum of `2,000/- (Rupees
Two Thousand Only) shall go to the State.
(vii) Rest of the order of the Special Court with
respect to the disposal of the properties at
MO-1 and MO-2 remains unaltered.
(viii) The accused shall surrender before the
Special Court within forty five (45) days
from today and serve the sentence as
ordered above by this Court.
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(ix) A free copy of this judgment be furnished
to the accused immediately by the
Registry.
Registry to transmit a copy of this judgment along
with Sessions Judge's Court records to the concerned
Sessions Judge's Court immediately, for doing needful in
the matter.
Sd/-
JUDGE
Sd/-
JUDGE
DH
