Karnataka High Court
Ramesh vs The State Of Karnataka on 9 February, 2024
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CRL.A No. 2160 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 9TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 2160 OF 2016 (C-)
BETWEEN:
1. RAMESH S/O. SHIVANAGOUDA PATIL
AGE: 36 YEARS, OCC: AGRICULTURE.
2. VEERANAGOUDA
S/O. VENKANAGOUDA PATIL,
AGE: 35 YEARS, OCC: AGRICULTURE,
BOTH ARE R/O. BADANUR, TQ: MUDHOL,
DISTRICT: BAGALKOT-587313.
...APPELLANTS
(BY SRI.S.RAJASHEKAR, ADVOCATE FOR
SRI.S.S.SAJJAN, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH LOKAPUR PS,
TQ: MUDHOL, DIST: BAGALKOT,
Digitally signed REP. BY STATE PUBLIC PROSECUTOR,
by HIGH COURT OF KARNATAKA,
SHIVAKUMAR
HIREMATH BENGALURU-560001.
Date:
2024.02.13 ...RESPONDENT
10:50:59 +0530
(BY SRI.M.B.GUNDAWADE, ADDL. STATE PUBLIC PROSECUTOR)
THIS CRIMINAL APPEAL IS FILED U/S.374(2) CR.P.C BY THE
ADV'T FOR THE APPELLANTS PRAYING THAT THIS HON'BLE
COURT MAY BE PLEASED TO SET ASIDE THE JUDGMENT AND
ORDER DATED 21.11.2016 PASSED BY THE I ADDL. DIST. AND
S.J., BAGALKOT TO SIT AT JAMAKHANDI, JAMAKHANDI IN
S.C.NO.69/2012 - CONVICTING THE APPELLANT/ACCUSED NO.1
AND 2 FOR THE OFFENCE P/U/S 323,324 AND 307 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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CRL.A No. 2160 of 2016
JUDGMENT
This appeal is by the convicted accused, directed
against the judgment of conviction and order of sentence
passed in S.C.No.69/2012 dated 21.11.2016 by the I
Additional District and Sessions Judge, Bagalkot (sitting at
Jamakhandi). Wherein, the learned Sessions Judge
convicted accused Nos.1 and 2 for the offences punishable
under Section 323, 324, 307 r/w Section 34 of IPC and
sentenced accused No.1 to undergo simple imprisonment
for a period of 1 year and shall pay fine of Rs.1,000/- and
in default of payment of fine to further undergo simple
imprisonment for a period of 3 months for the offence
punishable under Section 323 of IPC. Further, accused
No.2 sentenced to undergo simple imprisonment for a
period of 2 years and to pay fine of Rs.3,000/- and in
default of payment of fine, he shall further undergo simple
imprisonment for 6 months for the offence punishable
under Section 324 of IPC. Further, accused Nos.1 and 2
are sentenced to undergo imprisonment for a period of 10
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years and they shall pay fine of Rs.10,000/- and in
default, they shall further undergo imprisonment for 1
year for the offence punishable under Section 307 of IPC.
Further, both the accused are directed to pay jointly, a
compensation of Rs.25,000/- to P.W.3-injured. However, it
is directed that all the sentence shall run concurrently. The
learned Sessions Judge acquitted accused Nos.1 and 2 for
the offence punishable under Section 504 of IPC.
2. The factual matrix of the prosecution case-in-
brief are that-
The Complainant-PW.1 and his brother Suresh are
residing at Badanur village and are engaged in Agricultural
work. The Accused No.1-Ramesh is residing adjacent to
their house. Few days prior to the date of incident, the
accused No.1 being a drunkard used cause nuisance in the
public by abusing them. As such, the Complainant advised
the accused No.1 not to indulge in such practices. For the
same he quarreled with the complainant. Subsequently, on
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12.09.2011, PW.3-Brother of PW.1, along with PW.4 and 7
had been to "Krishi Mela" held that Dharwad and while
returning at about 1.00 a.m. near Lalsab Masjid of
Badanur village, under the jurisdiction of Lokapur Police
Station, accused NOs.1 and 2 assaulted the P.W.3 near
Lalsabgudi with the axe M.O.1 on his head and hip.
Thereafter, some unknown person informed the same to
PW.1 and he being the brother of PW.3, rushed to the spot
and witnessed that PW.3 had sustained grievous injuries
on his head and other parts of the body. Thereafter, he
came to know that accused Nos.1 and 2 had caused those
injuries to his brother with M.O.1 and fled away from the
spot. Subsequently, P.W.1 along with P.Ws.4 and 7 shifted
the injured to the Hospital. Thereafter, he lodged the
complaint before the respondent-police as per Ex.P1 and
the same is registered in Crime No.103/2011 dated
12.09.2011, against accused Nos.1 and 2 for the offences
punishable under Sections 323, 324, 307, 504 r/w Section
34 of IPC. Subsequently, P.W.10-Investigating Officer
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completed the investigation and laid charge sheet against
the accused for the aforementioned offences.
3. On committal, the learned Sessions Judge
framed charges against the accused for the
aforementioned offences and read over the same to the
accused. However, the accused denied the charges and
claimed to be tried.
4. In order to prove the charges leveled against
the accused, the prosecution in total examined 11
witnesses as P.Ws.1 to 11 so also got marked 8
documents as Exs.P1 to P8 and got identified 3 material
objects as M.Os.1 to 3.
5. After completion of the prosecution evidence,
the learned Sessions Judge read over the incriminating
evidences of material witnesses to the accused as
contemplated under the provisions of Section 313 of
Cr.P.C. However, the accused denied the same. Be that as
it may, the accused neither chose to examine any witness
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on their behalf nor got marked any documents. The
defense of the accused is of total denial and that of false
implication.
6. Thenceforth, post assessment of oral and
documentary evidence placed before the learned Sessions
Judge, the learned Sessions Judge convicted the accused
for the aforementioned mentioned offences and sentenced
them as stated supra. The correctness of the said
judgment is challenged under this appeal by accused
Nos.1 and 2.
7. Heard learned counsel Sri.S.Rajashekar for the
appellants/accused so also the learned Additional SPP for
the State.
8. Learned counsel for the appellants would
vehemently contend that the judgment under this appeal
suffers from perversity and illegality, the learned Sessions
Judge convicted the accused based on surmises and
conjectures. According to the learned counsel, the
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evidence of P.W.3-injured and P.Ws.4 and 7, eye-
witnesses to the incident suffers from infirmities and as
such, the same cannot be relied to convict the accused for
the charges leveled against them. He would contend that,
on perusal of Ex.P1-complaint lodged by P.W.1, who
categorically deposed that on the date of incident, when
he was in his house, some unknown person informed him
about the incident. Subsequently, he rushed to the spot.
At that time, he came to know through the injured and
P.Ws.4 and 7 that accused assaulted P.W.3 with axe and
thereafter, they shifted him to the Hospital. On careful
perusal of Ex.P2-Spot Mahazar, drawn by the Investigating
Officer, column No.4(8) and (5) of the same, clearly
depicts that incident was caused due to the road accident
as a result of rash and negligent riding. In the said Spot
Mahazar, the name of the PW.3-injured is forthcoming in
the victim column. Further, P.W.8-doctor, who examined
P.W.3-injured categorically, admitted that, injuries found
on the body of the injured could have been caused by a
road accident if a person falls from the motorcycle.
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9. On the above evidences, he would contend that
incident was caused in the midnight and P.W.1 being the
hearsay witness and P.W.4 also admitted in his cross-
examination that he had not witnessed the actual assault
made by the accused on P.W.3 with axe. Such being the
case, there is clear doubt arising in the case of the
prosecution. Hence, according to him, the sole evidence of
P.W.3-injured cannot be relied to prove the charges
leveled against the accused. He would also contend that,
the prosecution failed to prove the recovery of M.O.1-axe,
the weapon which is said to have been used for
commission of the crime by the accused. Since, PW.1
categorically admitted in his cross-examination that he by
himself has handed over the axe and bloodstained clothes
of the injured to the police, while drawing Spot Mahazar-
Ex.P2. Hence, in the opinion of learned counsel, accused
has been falsely implicated in the case on hand and the
defense put forth by the accused is quite probable one.
Accordingly, he prays to set aside the impugned judgment
passed by the Trial court and prays to allow the appeal.
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10. Refuting the above submission made by the
learned counsel for the appellants/accused, learned
Additional SPP would vehemently contend that, learned
Sessions Judge convicted the accused after meticulously
examining the evidence available on record, more
particularly, the evidence of P.W.3-injured so also the eye-
witnesses i.e., P.Ws.4 and 7. According to him, all these
witnesses have profoundly deposed about the assault
made by the accused with M.O.1 to P.W.3. Admittedly,
PW.3 was shifted to the hospital by P.Ws.1, 4 and 7 and
P.W.8 treated the injured and issued Wound Certificate as
per Ex.P5. Hence, as per the settled principles of this court
and the Hon'ble Apex Court, the evidence of injured
witness has to be weighed on a higher degree and much
credence can be attached to it unless contrary is proved
by the accused. Nevertheless, the evidence of eye-
witnesses are also corroborating with the testimony of
P.W.3 and as such there are no reason to discard the
evidence of P.Ws.3, 4 and 7. Accordingly, he prays to
dismiss the appeal.
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11. Having heard the learned counsel for the
appellants/accused so also the learned Additional SPP, the
points that arise for my consideration are:
"1. Whether the judgment under this appeal
suffers from perversity and illegality?
2. Whether the learned Sessions Judge is
justified in convicting accused Nos.1 and 2 for
the offences punishable under Sections 323,
324 and 307 of IPC?"
12. As both the points are inter-linked to each
other, same are taken together for consideration.
Accordingly, this court being the appellate court, on
particularized glance and on re-appreciation of the
evidence placed by the prosecution before the trial court, I
find;
P.W.1-Mallikarjun, complainant, brother of P.W.3-
injured, re-iterated the contents of his complaint Ex.P1
and deposed that, five years ago, himself and his brother
advised the accused not to cause any nuisance under the
influence of alcohol and on that background, on
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11.09.2011, P.W.3 had been to 'Krishi Mela' with P.Ws.4
and 7 at Dharwad and while returning, post midnight at
about 1.00 a.m. the accused assaulted his brother P.W.3
with M.O.1, on his head and other parts of the body. The
same was informed to him by some unknown person. Then
he rushed to the spot and shifted the injured to the
hospital with the help of P.Ws.4 and 7.
P.W.2-Basappa, witness to the Spot and seizure
Mahazar-Ex.P2 wherein M.Os.1 to 3 were rcoverd.
P.W.3-Suresh Jeeragal, injured in this case.
According to him, he advised the accused not to cause any
nuisance under the effect of alcohol and enraged by the
same, after 15 days, himself and P.W.4 to P.W.7 went to
'Krishi Mela' at Dharwad and while returning, at about
1.00 a.m., the accused assaulted him on his head and hip
with axe. Subsequently, he was shifted to the Hospital and
was treated by the Doctor-P.W.8.
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P.W.4-Sanju Jeeragal, eyewitness, deposed, on the
date of the incident himself, P.W.3 and P.W.7 had been to
'Krishi Mela' at Dharwad and while returning, at about
1.00 a.m. the accused assaulted P.W.3 on his head with
M.O.1.
P.W.5-R.R.Kadakol, the then ASI, arrested the
accused person and released them on bail.
P.W.6-S.S.Badakmani, the then ASI, registered FIR
at Ex.P.3, based on the complaint-Ex.P1, lodged by P.W.1.
Subsequently, he has drawn Spot Mahazar as per Ex.P.2
and seized M.Os.1 to 3.
P.W.7-Laxmanna Goudappa Gangannawar, eye-
witness to the incident who accompanied P.W.3 to 'Krishi
Mela'. According to him, while himself, P.W.4 and P.W.7
were returning from 'Krishi Mela' at about 1.00 a.m., the
accused assaulted P.W.3 with M.O.1 at his head and hip
near Lalsabgudi.
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P.W.8 Dr. Uday Nayak, Medical Officer, treated the
PW.3 and issued Wound Certificate -Ex.P.5.
P.W.9-Y.M.Naduvinamani, the then ASI, carried
articles to the FSL.
P.W.10-D.Hulagappa, the then Police Inspector,
conducted partial investigation and after receipt of FSL
report as per Ex.P.8 submitted chargesheet against the
accused for the aforementioned offences.
P.W.11-R.S.Choudhari, the then PSI, conducted
partial investigation and thereafter, handed over the
investigation to P.W.10.
13. On careful perusal of the above evidences, in
order to prove the guilt of the accused, the prosecution
mainly relied on the evidence of P.W.3 -injured, P.Ws.4
and.7, who are the eye-witnesses to the incident. Before
examining the evidence of these three witnesses, it is
relevant to primarily examine the contents of Ex.P.1-
complaint lodged by P.W.1. On perusal of Ex.P.1, the same
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depicts that the accused being a drunkard, used to create
nuisance in the locality where the injured and P.W.1
resides. As such, P.Ws.1 and 3 advised him not to indulge
in such activity and enraged by the same, the accused
assaulted P.W.3 on 11.09.2011 at about 1.00 a.m. while
he was returning from the 'Krishi Mela' at Dharwad.
According to PW.1, on the date of incident, when he was
residing in his house, post the midnight, some unknown
persons informed him about the incident and
consequently, he rushed to the spot. But, the person who
has informed him, is neither cited as a chargesheet
witness nor examined by the prosecution before the trial
Court. Admittedly, the incident has alleged to be occurred
post midnight at about 1.00 a.m. According to P.W.1,
himself and PWs 4 and 7 shifted PW.3-injured, in a motor
cycle to the Hospital. On perusal of Ex.P2- Spot Mahazar,
drawn by the Investigation Officer-PW.11, the same
depicts in Column No. 4(8) and 5 that, the injuries are
sustained by PW.3 due to motor vehicle accident which
occurred from rash and negligent riding. Further, this
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aspect corroborated with the evidence of PW.8-Doctor that
the injuries could be caused by the reason stated supra.
Nevertheless, no such proper explanation by the
prosecution about the existence of motor bike in which the
injured was shifted to Hospital, as stated by PWs.1,3,4
and 7. It is the specific case of these witnesses that they
went to 'Krishi Mela' in a cruizer vehicle and while
returning got down in Badanur Village, near their House.
Admittedly, the said cruise driver has neither cited in the
charge-sheet nor examined by the prosecution.
14. Admittedly, PW.1 is hear say witness to the
incident. PW.4-the person who accompanied the injure-
PW.3 has deposed that he has witnesses the assault made
by accused No.1 through M.O.1. Further, according to
PW.3, after getting down from the cruiser, PWs.4 and 7
had walked ahead of him and were at a distance of nearly
15-16 loop's (approximately 50-60 feet's) and when he
had been to pee adjacently to the road, accused No.1 and
2 assaulted him. In such circumstance, it cannot be said
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that, PW.4 and 7 witnessed the incident. Moreover, as
admitted by PW.1, M.O.1 and blood stained clothes of the
injured were handed over to the police by himself, during
the course of drawing Ex.P2. Such being the case, in the
absence of corroboration, an inference cannot be drawn as
to the very alleged incident itself. Even otherwise, motive
for the commission portrayed by the prosecution is that,
15 days prior to the date of alleged incident, PW.1 and 3
had advised the accused as to his untoward drunken
behavior in the locality which was causing nuisance to the
public. It is on this premise, prosecution claims that the
accused No.1/appellant No.1 along with accused No.2
assaulted PW.3. In order to enunciate the position,
admittedly, there are no such public nuisances are being
reported to the police by either PW.1 and 3 or any other
publics of their vicinity. On the other hand, the defense
put-forth by the accused for his false implication is that,
the landed property of both accused /appellant and PWs.1
and 3 are situated adjacently. As such, there was a
dispute existing between the PW.1 &3 and
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accused/appellant in respect of water pipe, which has been
taken under the land of accused without his permission.
This defense of the accused has also been partially
admitted by PW.3 in his cross examination. This evidence
when collectively read with the evidence of PW.8-Doctor,
the defense put forth by the accused seems to be probable
one and inspire this Court.
15. Hence, on overall perusal of the evidence
adduced by the prosecution witnesses, I am of the
considered view that, the prosecution has failed to prove
the guilt of the accused Nos.1 and 2 beyond all reasonable
doubt. In such circumstance, the learned Sessions Judge
has erred in convicting the accused for the offences they
are charged. Hence, in my opinion, interference in the
Judgment passed by the Sessions Court is necessitated.
Accordingly, I answer the point No.1 raised above in the
affirmative and point No.2 in the negative and proceed
to pass the following:
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ORDER
(i) The appeal is allowed;
(ii) The Judgment of conviction and order of
sentence passed in S.C.No.69/2012 dated
21.11.2016 by the I Additional District and
Sessions Judge, Bagalkote, sitting at
Jamakhandi is set-aside.
(iii) The accused Nos.1 and 2 are acquitted for
the charges leveled against them for the
offences punishable under Sections 323,
324, 307 read with Section 34 of IPC;
(iv) The bail bonds executed by the accused
persons stand cancelled;
(v) The fine amount if any paid by the accused
persons shall be refunded to them on
proper identification.
Sd/-
JUDGE
MBS, SVH
