Karnataka High Court
Represented By The Police Sub Inspector ... vs Ghanshyam S/O Kamu Argekar Aged About 48 ... on 1 February, 2024
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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NC: 2024:KHC-D:2262
CRL.A No. 100298 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 1ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY
CRIMINAL APPEAL NO. 100298 OF 2023 (A)
BETWEEN:
THE STATE OF KARNATAKA,
R/BY THE POLICE SUB INSPECTOR,
KARWAR RURAL POLICE STATION,
DISTRICT: UTTAR KANNADA.
THROUGH THE ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH-580001.
...APPELLANT
(BY SRI RANGASWAMY R., HCGP)
AND:
1. GHANSHYAM S/O. KAMU ARGEKAR,
AGED ABOUT 40 YEARS,
OCC. FISHING, R/O. SEA BIRD COLONY,
MUDUGA, POST: AMADALLI
KARWAR TALUK,
Digitally signed DIST. UTTAR KANNADA-581324.
by SUJATA
SUBHASH
PAMMAR 2. SMT. BABY KOM GHANASHYAM ARGEKAR,
Date: AGED ABOUT 33 YEARS,
2024.02.14 R/O. SEA BIRD COLONY, MUDUGA,
13:16:44 POST: AMADALLI KARWAR TALUK ,
+0530 DIST. UTTAR KANNADA-581324.
...RESPONDENTS
THIS CRIMINAL APPEAL IS FILED U/S 378(1)AND (3) OF
CR.PC., SEEKING TO GRANT TO LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 01.09.2022
PASSED BY THE II ADDL. DIST. AND SESSIONS JUDGE, UTTAR
KANNADA, KARWAR IN CRIMINAL APPEAL NO. 18/2011 AND TO
SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED
01.09.2022 PASSED BY THE II ADDL. DIST. AND SESSIONS
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NC: 2024:KHC-D:2262
CRL.A No. 100298 of 2023
JUDGE, UTTAR KANNADA, KARWAR IN CRIMINAL APPEAL NO.
18/2011 AND TO CONFIRM THE JUDGMENT AND ORDER OF
CONVICTION AND SENTENCE PASSED BY THE CHIEF JUDGE
MAGISTRATE, KARWAR IN CC NO. 22/2011 DATED 22.01.2011
CONVICTED AND SENTENCED FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 354, 323, 504 AND 506(2) R/W 34 OF IPC
THAT ACCUSED NO.1 WAS CONVICTED FOR THE OFFENCE
P/U/SEC. 354 AND 324 OF IPC AND BOTH THE ACCUSED
CONVICTED FOR THE OFFENCES P/U/SEC. 323, 504 AND 506(2)
R/W 34 OF IPC.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed under Section 378(1) and (3) of
the Cr.P.C. by the State challenging the Judgment and
order of acquittal dated 01.09.2022 passed in Criminal
Appeal No.18/2011 by the Court of II Additional District
and Sessions Judge, Uttara Kannada, Karwar, wherein the
respondents herein have acquitted for the offences
punishable under Sections 354, 323, 504 and 506(2) read
with Section 34 of IPC.
2. Heard the learned counsel for the parties.
3. Respondents herein were tried before the Court
of Chief Judicial Magistrate, Karwar in Criminal Case
No.22/2011 for the offences punishable under Sections
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354, 323, 504 and 506(2) read with Section 34 of IPC. It
is the case of prosecution that on 27.11.2007 at about
5.00 pm., in Mudga colony of Amdalli village near the
Government Well beside the house of Smt. Gangi Divakar
Bobrakar, when the complainant went to fetch the water
from the said well, at that time accused No.1 came there
and scolded her with filthy language. He allegedly stated
that he would be raping her infront of the people and
accordingly dragged her hair and pushed her down and
tore her nighty, pressed her breasts and outraged her
modesty. When the husband of complainant tried to
rescue her, accused No.1 assaulted him with club on his
right shoulder and also bit on his left shoulder and caused
injuries. Accused No.2 allegedly assaulted the complainant
with hands and caused simple injuries, thereafter, accused
Nos.1 and 2 left the spot after criminally intimidating the
complainant and her husband. In the said case, the
accused persons after entering appearance before the Trial
Court pleaded not guilty and claimed to be tried.
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4. In order to prove its case, prosecution had totally
examined 10 witnesses as P.W.1 to P.W.10 and got
marked 08 documents as Ex.P.1 to Ex.P.8. Five material
objects were got marked as M.O.1 to M.O.5. After hearing
the arguments addressed by both sides, the Trial Court
vide its Judgment and order dated 22.01.2011 had
convicted the accused No.1 for the offences punishable
under Sections 354 and 324 of IPC and convicted both
accused for the offences punishable under Sections 323,
504 and 506(2) read with Section 34 of IPC. The said
Judgment and order of conviction and sentence passed by
the Trial Court was set aside by the appellate Court in
Criminal Appeal No.18/2011 vide its impugned Judgment
and order dated 01.09.2022 and respondents/accused
were acquitted. Being aggrieved by the same, the State is
before this Court.
5. Learned HCGP appearing on behalf of appellant-
State submits that the first appellate Court was not
justified in interfering with the well reasoned Judgment
and order passed by the Trial Court. He submits that the
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first appellate Court has erroneously come to the
conclusion that the prosecution had failed to prove the
charges against the accused beyond reasonable doubt.
6. The prosecution in order to prove its charges
against the accused had examined 10 witnesses before the
Trial Court as P.W.1 to P.W.10. P.W.1 is the complainant
in the present case. Ex.P.1 is the complaint given by her
and Ex.P.1a is her signature. During the course of her
examination before the Court, PW.1 has given a go by to
the averments made by her in the complaint. The first
appellate Court has noticed that there were lot of
improvements made by this witness during the course of
her deposition before the Trial Court. She has stated that
on the next date of complaint, Police came and seized
M.O.1-club used to assault her and her husband. The
nighty worn by her and the banyan worn by her husband
were also seized by the Police on the same day, under
Ex.P.2 and the banyan, club and nighty are produced
before the Court and marked at M.O.1, 2 and 3
respectively.
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7. P.W.4 is the husband of complainant who was
allegedly assaulted in the incident in question. This witness
was partly treated as hostile and he was cross-examined
by the Public Prosecutor. The version of P.W.4 does not
corroborate with the evidence of P.W.1. Therefore, the
evidence of P.W.1 which is not consistent with the
complaint averments has remained un-corroborated.
P.W.6 is another eyewitness, who has been examined by
the prosecution. The said witness also had turned hostile
to the case of prosecution. Though, P.W.1 and P.W.4 had
stated that there were many people of the locality present
at the time of incident, the prosecution has not made any
attempt to examine any one of them before the Trial
Court.
8. P.W.2 and 3 are the panchas for recovery mahazar
and they have turned hostile. Therefore, the seizure of
club, nighty and banian has not been proved by the
prosecution. P.W.5 is the Police Constable and P.W.9 and
10 are the Investigating Officers. Their evidence is not
helpful for the prosecution to prove the allegation against
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accused persons that they had abused and assaulted the
complainant and her husband and also had criminally
intimidated them and outraged modesty of the
complainant/P.W.1. PW.7 and 8 are the Doctors, who have
spoken about treating the complainant and her husband
who had received simple injuries in the incident in
question.
9. The lower appellate Court after fully appreciating
the oral and documentary evidence placed on record by
the prosecution in support of its case, has observed that
evidence of P.W.1 and 4 do not corroborate with each
other and evidence of P.W.1 is full of inconsistency. It has
also taken note of the fact that P.W.4 was treated as
partly hostile witness by the prosecution and P.W.6 who is
another eyewitness to the incident in question, had
completely turned hostile to the case of prosecution. P.W.2
and 3 who are pancha witnesses to the seizure mahazar
have also turned hostile to the case of prosecution.
10. The lower appellate Court after appreciating the
oral and documentary evidence available on record has
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recorded a finding that the prosecution has failed to prove
its charges against the accused persons beyond
reasonable doubt and accordingly, it has extended the
benefit of doubt to the accused and has acquitted them for
the alleged offences. I do not find any illegality or
irregularity in the said Judgment and order of acquittal
passed by the Trial court. The view taken by the first
appellate Court cannot be said to be either illegal or
perverse and therefore, I do not find any good ground to
interfere with the same. Accordingly, appeal is dismissed.
In view of dismissal of appeal, pending applications,
if any are also dismissed.
Sd/-
JUDGE
CKK
