Karnataka High Court

Smt Y R Manjamma vs Smt Avvaiah on 4 October, 2023

Bench: J.M.Khazi

                            1      CRL.A.NO.392 OF 2011



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 4TH DAY OF OCTOBER, 2023

                        BEFORE

           THE HON'BLE MS.JUSTICE J.M.KHAZI

          CRIMINAL APPEAL NO.392 OF 2011

BETWEEN:

SMT. Y. R. MANJAMMA,
W/O K. MANJAPPA
AGED ABOUT 60 YEARS,
RESIDENT OF SHANTHIGRAMA,
SHANTHIGRAMA HOBLI,
HASSAN TALUK.
                                            ...APPELLANT
(BY SRI. NARENDRA BABU B.K., ADVOCATE AND
     SRI. G.K.SHIVAPRAKASH, ADVOCATE)

AND:

1.   SMT. AVVAIAH,
     W/O LATE KRISHNEGOWDA,
     AGED ABOUT 50 YEARS,

2.   SRI. VISHWA @ VISHWANATHA,
     S/O KRISHEGOWDA,
     AGED ABOUT 29 YEARS,

3.   SRI. ANNAIAH @ LAKSHMEGOWDA
     S/O DODDAIAH @ DODDEGOWDA,
     AGED ABOUT 57 YEARS,

4.   SRI. PAPA @ PAPANNA,
     S/O BOREGOWDA,
     AGED ABOUT 57 YEARS,

5.   SRI. JAYARAMA,
     S/O CHENNI @ CHANNAMMA,
     AGED ABOUT 45 YEARS,
                             2         CRL.A.NO.392 OF 2011



     ALL ARE RESIDENTS OF
     MUNDALA KOPPALI VILLAGE,
     SHANTHIGRAQMA HOBLI,
     HASSAN TALUK.

6.   STATE BY DUDDA POLICE STATION,
     REPRESENTED BY ITS
     STATION HOUSE OFFICER,
     HASSAN TALUK,
     HASSAN DISTRICT.
                                      .....RESPONDENTS

(BY SRI.CHETHAN B., ADVOCATE FOR R1 TO R5,
    SRI. K.NAGESHWARAPPA, HCGP FOR R6/STATE)

   THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372 OF
CODE OF CRIMINAL PROCEDURE PRAYING TO SET-ASIDE THE
JUDGMENT DATED 3.11.2009, PASSED BY THE PRINCIPAL
SESSIONS JUDGE AT HASSAN IN CRI. APPEAL NO.80/2008
AND CONFIRM THE JUDGMENT PASSED BY THE II
ADDITIONAL CIVIL JUDGE (JR DN) AND JMFC COURT AT
HASSAN IN C.C.NO.634/2008 DATED 12.6.2008.

     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED    ON    05.07.2023, COMING   ON   FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:


                     JUDGMENT

This appeal filed under Section 372 of Cr.P.C. is by

the complainant challenging the impugned judgment and

order dated 03.11.2009, in Crl.A.No.80/2008 on the file

of Prl.District and Sessions Judge, Hassan, by which the

said appeal filed by accused came to be allowed, setting

aside the conviction and sentence imposed by the trial 3 CRL.A.NO.392 OF 2011

Court for the offences punishable under Sections 143,

323, 324, 447 r/w Section 149 I.P.C, in C.C.No.634/2000

on the file of Addl.Civil Judge and JMFC II Court, Hassan.

2. For the sake of convenience, the parties are

referred to by their rank before the trial Court.

3. Based on the complaint filed by

Smt.Manjamma, W/o K.Manjappa, the concerned police

registered the case in Cr.No.220/1999 for the offences

punishable under Sections 143, 323, 324, 447 r/w

Section 149 of I.P.C and after completing the

investigation filed charge sheet against accused Nos.1 to

5, alleging that on 06.11.1999, at 12.00 noon, while

complainant along with CW-2 Sharada and CW-3 Shiva

was in her land in Sy.No.493 and 493/4 and were

engaged in consuming tender coconut water, the accused

persons formed themselves into an unlawful assembly,

trespassed into the said land and picked up quarrel with

her saying that she has unauthorisedly cultivated the

said land. Accused No.3 assaulted the complainant with a

sickle on her head and caused bleeding injury, accused 4 CRL.A.NO.392 OF 2011

No.5 assaulted with a club on her stomach, accused No.4

assaulted on the right back portion with a coconut leaf

stick (JqÀªÉÆmÉÖ). Accused Nos.1 and 2 assaulted the

complainant with hands and thereby all the accused

persons committed the offences punishable under

Section 143, 323, 324, 447 r/w Section 149 of I.P.C.

4. Accused entered appearance and contested

the matter. They pleaded not guilty to the charges

leveled against them and claimed trial.

5. In support of prosecution case, 8 witnesses

are examined as PWs-1 to 8 and Ex.P1 to 9, and MOs-1

to 3 are marked for the prosecution.

6. During the course of their statement, accused

have denied the incriminating evidence.

7. In fact accused No.5 has entered into the

witness box and examined himself as DW-1. Ex.D1 is

marked for the accused.

                              5        CRL.A.NO.392 OF 2011



     8.      Vide   the   judgment    and   order   dated

12.06.2007, the trial Court found accused guilty of the

offences alleged and convicted and sentenced them as

detailed in the judgment and order.

9. However, accused challenged the same before

the Sessions Court and vide the impugned judgment and

order, the judgment and the order of the trial Court was

set aside.

10. Being aggrieved by the same, the complainant

is before this Court contending that the Sessions Court

has erroneously allowed the appeal filed by the accused

persons and the same is against facts and circumstances

of the case. The Sessions Court has failed to appreciate

that on the basis of oral and documentary evidence

placed on record, the trial Court has come to a correct

conclusion that the charges leveled against accused are

proved beyond reasonable doubt. The Sessions Court has

also failed to appreciate the contents of the wound

certificate and erred in comparing with the oral evidence.

The Sessions Court has carried away by the fact that 6 CRL.A.NO.392 OF 2011

there is civil dispute between the parties and for that

reason disbelieving the evidence of prosecution

witnesses. The Sessions Court has also erred in not

relying upon the attendance register which clearly state

that on 06.11.1999, complainant was on leave. The

Sessions Court has also erred in not relying upon the

evidence of PWs-3 and 4 which corroborate the

testimony of complainant. Viewed from any angle, the

impugned judgment and order is not sustainable and

prays to allow the appeal, set aside the impugned

judgment and order of the Sessions Court and restore

the judgment and order of the trial Court.

11. On the other hand, learned counsel appearing

for the accused has supported the impugned judgment

and order contending that on re-appreciation of oral and

documentary evidence, the Sessions Court has come to a

correct conclusion in acquitting the accused and prays to

dismiss the appeal.

12. Heard elaborate arguments of both sides and

perused the record.

7 CRL.A.NO.392 OF 2011

13. Thus, it is the definite case of the prosecution

that there was dispute between complainant and accused

with regard to alleged right of way passing through the

land of complainant and she was objecting for the same

and in this background the incident took place i.e., on

06.11.1999 at 12-00 noon, when complainant along with

PW-3, Sharada and PW-4, Shiva were having tender

coconut, accused persons assaulted complainant with the

sickle, club and a coconut leaf stick and caused bleeding

injury. PW-3 and 4 shifted the complainant to the

hospital and on intimation the MLC report, the concerned

police visited the hospital and recorded the statement of

complainant and based on it registered the case. On the

point of jurisdiction, it was transferred to the Dudda

Police station after concluding investigation, charge sheet

was filed.

14. The fact that there was dispute between

complainant and the accused persons with respect to

accused persons and other villagers claiming right of way

in the land of complainant is not in dispute. In fact, 8 CRL.A.NO.392 OF 2011

during the course of her evidence, complainant who is

examined as PW-1 has deposed to this effect. A

suggestion is made to these witnesses i.e., PW 1 to 4

with regard to the said dispute, and they have admitted

the said fact. In fact, the complainant has admitted that

a civil suit is pending between her husband and the

accused persons with regard to the said land i.e, the

accused persons claiming right of way in the said land.

Thus, the prosecution has proved that the relationship

between complainant and accused persons was stained

on account of dispute with regard to right of way and

that was the motive for the accused persons to assault

the complainant on 06.11.1999.

15. It is pertinent to note that the complainant is

an Anganawadi teacher. 06.11.1999 was a Saturday and

a working day. The accused have taken up a specific

defence that on that day complainant worked at

Anganwadi and as such she was not at all present at the

place of incident. In this regard, the accused have relied

upon Ex.D1 - a certificate issued by PW-8 - H.C. Ambika, 9 CRL.A.NO.392 OF 2011

Assistant Child Development Officer, Hassan. In Ex.D1

which is dated 19.09.2005, it is stated that on

06.11.1999 complainant has worked in the Anganawadi

from 9:30 a.m to 1:30 p.m.

16. It is relevant to note that in the charge sheet

PW-8 - Ambika was not cited as a witness. However,

after the examination of accused No.5 as DW-1 and

marking of Ex.D1, the prosecution filed application under

Section 311 Cr.P.C. to summon her as witness. In fact,

accused have filed objections to the said application.

After considering the objections filed by the accused, by

a considered order dated 20.07.2007, the trial Court has

allowed the said application. Accordingly, Ambika,

Assistant Child Development Officer, Hassan was

summoned and examined as PW-8. During the course of

her evidence she has clarified that when Ex.D1 was

issued, she was in-charge, and on the basis of

information furnished to her telephonically, she issued

Ex.D1.

10 CRL.A.NO.392 OF 2011

17. PW8 has further deposed that later on she

came to know that on 06.11.1999, complainant was on

leave. Though she has been cross-examined at length

suggesting that only to help the complainant she is giving

false evidence, she has withstood the rigour of cross-

examination. In fact in the light of unequivocal testimony

of PW-2 and 3 regarding the presence of complainant at

the place of incident and the fact of she being assaulted

by the accused persons and in the light of MLC report at

Ex.P3 and her injury certificate at Ex.P6, the prosecution

has proved that at the time of incident, the complainant

was present in the land and she was assaulted by the

accused and consequently she did not work at the

Anganawadi on that day. Not even a single suggestion is

made by the accused to the complainant as to how she

suffered the injuries in question, if they were not caused

due to assault by the accused. The trial Court in detail

has discussed these aspects and come to a correct

conclusion that on the date of incident complainant was

on leave and she was present at the place of incident and

PW-3, Sharada and PW-4 Shiva were present with her.

11 CRL.A.NO.392 OF 2011

18. It has come in the evidence that when the

incident took place, number of workers were working in

the land in question and in fact PW-1, 3 and 4 went to

the land to give food to the workers and other villagers

were also present in the land when the incident took

place. However, except PW-3 and 4, no other person is

cited as eye witness. During the cross-examination, it is

elicited through PW-1, 3 and 4 that none of the villagers

and workers came to the rescue of complainant. It is also

elicited that the villagers were also claiming right of way

in the land of the complainant.

19. This speaks the reason for none of the

villagers coming to the rescue of complainant. Since the

workers who are engaged by the complainant probably

from among the villagers and therefore they might have

also not come forward to speak about the incident or

may be apprehending that accused persons and other

villagers may not utilising their services, they might have

not come forward to speak about the incident. For the

above reason, the Investigating Officer has not cited any 12 CRL.A.NO.392 OF 2011

of them as witnesses. Anyhow, it is for the Court to

examine the evidence of PW-1, 3 and 4 and to determine

whether they are reliable and trustworthy witnesses. If

so, their evidence could be very well taken into

consideration to decide whether the allegations against

accused are proved or not.

20. The evidence of PW-1, 3 and 4 prove that on

06.11.1999, when they were in the land of complainant,

accused persons quarreled with complainant saying that

she is there cultivating the road and assaulted her with a

sickle, club and hands. Though many villagers and some

workers were present, they did not come to the rescue of

complainant. PW-3 and 4 intervened and rescued her.

They took her to the hospital and got her treatment.

Though the accused have cross examined PW-1, 3 and 4

at length, they were not able to dislodge their testimony.

The major portion of cross-examination of this witness is

with regard to complainant being an Anganawadi teacher

and at the time of incident she was in the school. Of

course they have denied the said suggestion.

13 CRL.A.NO.392 OF 2011

21. These witnesses are also examined on the

point that in Shanthigrama both Government Hospital

and police station are available. However, their evidence

proves the fact that since the complainant was injured

and suffered bleeding injury, their primary concern was

to get her treatment. Looking to the nature of the injury

suffered by the complainant, they might have thought it

appropriate to get treatment at Government Hospital,

Hassan. When the complainant was in the hospital, on

the intimation given by the Hospital Authorities, the

Hassan town police has recorded her statement and

based on it registered the case. Thereafter, on point of

jurisdiction, it has been transferred to the Hassan Rural

Police Station. As noted earlier, despite lengthy cross-

examination, the defence has failed to point out any

discrepancy in the evidence of PW-1, 3 and 4, so as to

disbelieve their evidence.

22. In this case, the Doctor who issued the injury

certificate has not been examined. The summons sent to

him is returned with endorsement that he is no more.

14 CRL.A.NO.392 OF 2011

Consequently, the prosecution could not examine him.

The injury certificate is marked through the Investigating

Officer. It corroborate with the testimony of PW-1, 3 and

4. The history of injury is stated to be assault. The

incident took place at around 12-00 noon and the injured

was examined by the Doctor at 2-00 p.m. The evidence

of PW-1, 3 and 4 prove that after the assault, PW-1 was

taken to the hospital by PW-3 and 4. After the incident,

they have decided to go to the Government Hospital,

Hassan and consequently, it will not affect the

prosecution case because the injured did not choose to

take treatment at Shanthigrama Government Hospital

and also lodge complaint at the said place. In fact, during

his cross-examination, PW-4 has deposed that

Shanthigrama Hospital was closed which part of his

testimony is not disputed by the defence. Thus, the

injury certificate at Ex.P6 corroborate and support the

case of the prosecution and testimony of PW-1, 3 and 4.

23. It is the definite case of the prosecution that

after the incident, the accused left the weapons used for 15 CRL.A.NO.392 OF 2011

assaulting the complainant at the spot and the same is

recovered through Mahazar Ex.P2. PW-2 K Manjappa is a

witness to the spot Mahazar who has spoken to about it

and stated that the police visited the spot and through

Mahazar Ex.P2 seized MOs-1 to 3. Though he has been

cross-examined at length, nothing material is elicited to

demonstrate that he is not a truthful witness. Except the

fact that this witness has filed a civil suit against accused

No.1 - Annaiah and Accused No.5 - Jayaram, this court

finds no reason to disbelieve his evidence.

24. It is pertinent to note that during her cross-

examination complainant has deposed that it is she who

took the MOs-1 to 3 to the police station and handed

over to the police. On account of the assault on her,

complainant had sustained bleeding injury. She was

taken to the hospital by PW-3 and 4. From the place of

incident, they have traveled to Government Hospital,

Hassan and took treatment. After the Hospital Authorities

sent MLC report, the concerned police have visited the

hospital and recorded her statement and the law was set 16 CRL.A.NO.392 OF 2011

into motion. Such being the case at any stretch of

imagination it could be accepted that complainant took a

MOs-1 to 3 to the police station and handed them over to

the Investigating Officer. It appears by mistake

complainant has deposed to that effect. In fact, the

evidence of PW-2 coupled with the testimony of the

Investigating Officer PW-6, the prosecution has proved

the spot-cum-seizure mahazar.

25. The evidence of PWs-5 to 7 prove the

Investigation. Though the defence has cross-examined all

the prosecution witnesses at length, it has failed to prove

that accused persons are falsely implicated. On the other

hand, the accused were having a civil dispute with the

complainant and her husband with regard to the right of

way on the property, which was claimed by them as their

absolute property. The prosecution has proved the

allegations against accused in this background. Taking

into consideration the oral and documentary evidence

placed on record, the trial Court has come to a correct

conclusion that prosecution has proved the allegations 17 CRL.A.NO.392 OF 2011

against accused Nos.1 to 5 for the offence punishable

under Section 143 and accused Nos.3 and 5 for the

offence punishable under Section 324 I.P.C.

26. It has acquitted the accused for the remaining

offences. Since the State has not challenged the

judgment and order of the trial Court with regard to

remaining offences, nothing could be done at this stage.

However, the Sessions Court while setting aside the well

reasoned judgment and order of the trial Court has given

a finding contrary to the oral and documentary evidence

placed on record and as such it is perverse. There are no

justifiable grounds for the Sessions Court to upset the

judgment and orders of the trial court. In the result, the

appeal filed by complainant deserves to be allowed and

judgment and order of the trial Court is required to be

restored and accordingly the following:

ORDER

(1) Appeal filed by the complainant under Section

372 Cr.P.C is allowed.

18 CRL.A.NO.392 OF 2011

(2) The impugned judgment and order dated

03.11.2009 in Crl.A.No.80/2008 on the file of

Principal District and Sessions Judge, Hassan,

is hereby set aside.