Karnataka High Court

The State By Sub Inspector Of vs Sri Shekara Poojary on 5 January, 2024

Author: H.B.Prabhakara Sastry

Bench: H.B.Prabhakara Sastry

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                                     CRL.A. No.916 OF 2017



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 5TH DAY OF JANUARY, 2024

                          PRESENT

     THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY

                             AND

          THE HON'BLE MR. JUSTICE ANIL B KATTI

                CRL.A No.916 OF 2017 (A)

BETWEEN:

      THE STATE BY SUB-INSPECTOR OF POLICE
      UPPINANGADY P.S.
      PUTTUR, D.K.,
      REPRESENTED BY STATE PUBLIC
      PROSECUTOR
      HIGH COURT BUILDING
      BANGALORE-560 001
                                              ...APPELLANT
(BY SRI.B.N.JAGADEESHA, ADD. SPP)

AND:

1.    SRI SHEKARA POOJARY
      SON OF LATE HONNAPPA POOJARY
      AGED 65 YEARS
      RESIDING AT SHIBARLA HOUSE
      BAJATHOOR VILLAGE
      PUTTUR TALUK-574 201
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                                       CRL.A. No.916 OF 2017




2.   SRI.PUSHPARAJ
     SON OF SHEKARA POOJARY
     AGED ABOUT 33 YEARS
     RESIDENT AT SHIBARLA HOUSE
     BAJATHOOR VILLAGE
     PUTTUR TALUK-574 201
                                              ...RESPONDENTS
(BY SRI.SUYOG HERELE E., ADVOCATE)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378

(1) & (3) OF CR.P.C., PRAYING TO GRANT LEAVE TO APPEAL

AGAINST THE JUDGMENT AND ORDER DATED 29.11.2016

PASSED BY THE V ADDITIONAL DISTRICT AND SESSIONS

JUDGE,   D.K.,   IN   S.C.   NO.5004/2016-   ACQUITTING   THE

RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 341, 323,

324, 504, 307, 201 R/W 34 OF IPC.



      THIS CRIMINAL APPEAL HAVING BEEN HEARD THROUGH

PHYSICAL HEARING/VIDEO CONFERENCING FOR FURTHER

ARGUMENTS AND RESERVED ON 05.10.2023, COMING ON FOR

PRONOUNCEMENT OF JUDGMENT, THIS DAY ANIL B. KATTI,

J., DELIVERED THE FOLLOWING:
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                                         CRL.A. No.916 OF 2017




                          JUDGMENT

Appellant/State feeling aggrieved by the judgment of

Trial Court on the file of V Addl.District and Sessions

Judge, D.K., Mangaluru sitting at Puttur in

S.C.No.5004/2016, dated 29.11.2016 preferred this

appeal.

2. Parties to the appeal are referred with their ranks

as assigned in the Trial Court for the sake of convenience.

3. The factual matrix leading to the case of

prosecution can be stated in nutshell to the effect that

complainant and accused are the residents of Bajathoor

village. The panchayath road is in existence connecting the

house of CW.1 Jagadeesh and others in the locality from

Kanchana since time immemorial. There were trenches on

either side of the road abutting to the land of accused in

one side and Arun Christian on the other side. On

02.03.2014 accused started leveling his land extending till

the land of Arun Christian by closing the road with the help

of Hitachi. Complainant CW.1 Jagadeesh went to accused

CRL.A. No.916 OF 2017

persons and questioned as to why they started leveling the

road by closing the existing road, as there would be no

road for ingress and egress to his house. Accused No.1 did

not care for such enquiry by complainant PW.1 Jagadeesh.

Therefore, he went to Uppinangadi Police Station and filed

the complaint. The police called accused persons to the

Police Station and directed them not to give room for any

dispute, till their arrival to the spot. In spite of that

accused persons started their work again at 7.30 p.m. and

complainant CW.1 Jagadeesh objected for the same. The

accused have wrongfully restraining from moving further,

accused No.1 by holding him tightly came to assault with

sickle and in the process CW.1 Jagadeesh escaping, the

sickle hit to the left forearm and he sustained bleeding

injury. Accused No.2 slapped him to the left cheek and

also abused in filthy language, further tried to push him

beneath the Hitachi with an intention to commit his

murder. However, complainant CW.1 escaped from their

hands and ran towards his house. The brother-in-law of

complainant Purushotham took complainant CW.1 to

CRL.A. No.916 OF 2017

Puttur hospital where he was admitted as inpatient. It is

further alleged in the complaint that there is dispute

between complainant CW.1 Jagadeesh and accused

regarding land. On these allegations made in the

complaint, the Investigating Officer after completion of

investigation filed charge sheet for the offences punishable

under Section 341, 323, 324, 504, and 201 r/w Section 34

Indian Penal Code, 1860 (hereinafter for brevity referred

to as `the IPC').

3(a). On the basis of charge sheet submitted before

Addl.Civil Judge and JMFC, Puttur, D.K. in

CC.No.924/2014. The trial was commenced for the

offences mentioned in the charge sheet. It is only after

recording the evidence of PW.1 Jagadeesh, the learned

APP filed application under Section 323 of Cr.P.C., the said

application came to be allowed and the offence punishable

under Section 307 of IPC was invoked. Hence, the

Magistrate Court has committed the case to the Sessions

Court, since the offence punishable under Section 304 of

IPC is exclusively to be tried before the Sessions Court.

CRL.A. No.916 OF 2017

4. In response to the summons both accused

appeared before Trial Court through their counsel. The

trial Court on being Prima facie satisfied of charge sheet

material framed charge against accused for the offences

alleged against them. Accused pleaded not guilty and

claimed to be tried. Prosecution to prove the allegation

made against the accused relied on the oral testimony of

PWs.1 to 10 and the documents at Exs.P.1 to P.4.

5. On closure of the prosecution evidence, the

statement of accused under Section 313 of Code of

Criminal Procedure, 1973 (hereinafter for brevity referred

to as `the Cr.P.C.') came to be recorded. Accused Nos.1

and 2 have denied all the incriminating material evidence

appearing against them and claimed that false case is

filed. The Trial Court after appreciation of evidence

acquitted both the accused from the charges levelled

against them.

6. Appellant/State challenging the judgment of

acquittal passed by Trial Court contended that the Trial

Court has not properly appreciated the evidence of PWs.1

CRL.A. No.916 OF 2017

to 5 who have supported the case of prosecution with

regard to the incident that took place on 02.03.2014 and

the evidence of PW.6 Dr.Asha Jyothi with the wound

certificate Ex.P.3 demonstrate the fact that complainant

CW.1 has sustained the injuries as noted in wound

certificate Ex.P.3 in the incident. The evidence of PW.7

Balakrishna would go to show that on the direction of his

officer visited to Puttur Government hospital and recorded

the oral statement of PW.1 Jagadeesh and the same was

treated as complaint Ex.P.1 on the basis of it case is

registered in Uppinangadi Police Station Crime

No.71/2014. The evidence of PW.8 Deepak K and PW.9

K R Shivakumar speaks about the investigation carried out

by them after criminal law was set into motion. The Trial

Court without appreciating the said material evidence on

record has recorded contrary finding in acquitting the

accused and the said findings cannot be legally sustained.

Therefore, prayed for allowing the appeal and to set aside

the judgment of Trial Court, consequently to convict the

accused for the offences alleged against them.

CRL.A. No.916 OF 2017

have appeared through their counsel. The Trial Court

records have been secured.

8. Heard the arguments of both sides.

9. After hearing the arguments of both sides and on

perusal of Trial Court records with the impugned judgment

under appeal, the following points arise for consideration:

1) Whether the prosecution has proved beyond all reasonable doubt that on 02.03.2014 at 7.30 p.m. in Bajathoor village when complainant Jagadeesh came to the said place where the accused were closing the panchayath road which is in existence to connect the house of complainant CW.1 from Kanchana, the accused persons in furtherance of their common intention accused No.1 by holding sickle in his hand wrongfully restrained CW.1 complainant from moving further by holding him tightly, thereby committed an offence punishable under Section 341 r/w Section 34 of IPC?

2) Whether the prosecution has further proved beyond all reasonable doubt that on the above said date, time and place accused persons after wrongfully restraining CW.1 complainant, voluntarily caused bleeding injury to him left forearm by assaulting with

CRL.A. No.916 OF 2017

sickle and thereby committed an offence punishable under Section 324 r/w Section 34 of IPC?

3) Whether the prosecution has further proved beyond all reasonable doubt that on the above said date, time and place accused persons in furtherance of their common intention, accused No.2 slapped CW.1 complainant on his left cheek and voluntarily caused hurt to him thereby committed an offence punishable under Section 323 r/w Section 34 of IPC?

4) Whether the prosecution has further proved beyond all reasonable doubt that on the above said date, time and place accused persons in furtherance of their common intention intentionally insulted CW.1 complainant by abusing him in filthy language with intent to provoke him to commit breach of public peace and thereby committed an offence punishable under Section 504 r/w Section 34 of IPC?

5) Whether the prosecution has further proved beyond all reasonable doubt that on the above said date, time and place accused persons in furtherance of their common intention pushed complainant CW.1 under the Hitachi with such intention or knowledge that their such act will cause his death they would have been guilty of murder and thereby committed an offence punishable under Section 307 r/w 34 of IPC?

6) Whether the prosecution has further proved beyond all reasonable doubt that on the above said date, time and place accused persons in furtherance of

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CRL.A. No.916 OF 2017

their common intention accused No.1 hidden the sickle which he used to assault CW.1 and tried to disappear the evidence of commission of offence thereby committed an offence punishable under Section 201 r/w Section 34 of IPC?

7) Whether the judgment of the Trial Court requires any interference by this Court?

10. On careful perusal of oral and documentary

evidence placed on record, the prosecution alleges that

panchayath road is in existence connecting the house of

PW.1 Jagadeesh and others in the locality from Kanchana

since time immemorial. There were trenches on either side

of the road abducting to the land in one side and Anun

Christian on other side. On 02.03.2014 accused started

leveling his land extending till the land of Arun Christian

by closing the road with the help of Hitachi. When the

complainant PW.1 Jagadeesh questioned the said act of

accused in leveling the road extending till the land of Arun

Christian by closing the road accused No.1, by means of

sickle came to assault him. In the said process PW.1

Jagadeesh escaped from such assault, but sickle hit to the

left arm and due to which he sustained bleeding injuries.

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CRL.A. No.916 OF 2017

Accused No.2 slapped on left cheek of complainant PW.1

Jagadeesh and pushed him under Hitachi with an intention

to commit his murder.

11. The prosecution to prove the incident that

occurred on 02.03.2014, wherein PW.1 Jagadeesh

sustained injuries relies on the oral testimony of PW.1

Jagadeesh, PW.2 Purushotham, PW.3 Sadanand, PW.4

Tulasi and PW.5 Chandrakala. PW.5 Chandrakala has

shown the place of incident and spot panchanama was

prepared in presence of PW.10 Koragappa Salion. The

prosecution further to prove that PW.1 Jagadeesh

sustained injuries in the said incident relies on the oral

testimony of PW.6 Dr.Asha Jyothi who examined him in

the Government Hospital Puttur on 02.03.2014 at 11 p.m.

and issued wound certificate Ex.P.3. The evidence of PW.2

Purushotham would go to show that he has shifted the

injured PW.1 complainant to the Government Hospital. The

said evidence is sought to be corroborated by the evidence

of PW.7 Balakrishna who visited the Government Hospital

Puttur and recorded the oral complaint of injured PW.1

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CRL.A. No.916 OF 2017

Jagadeesh Ex.P.1. The prosecution further relied on the

evidence of Investigating Officer Deepak K and PW.9

K R Shivakumar to corroborate the evidence of PWs.1 to 5

with regard to PW.1 Jagadeesh sustaining bleeding injury

in the incident of assault that occurred on 02.03.2014.

12. Learned Addl.State Public Prosecutor has argued

that injured complainant PW.1 Jagadeesh has spoken

about the incident in consonance with the complaint

allegations Ex.P.1 regarding the manner in which the

incident took place and due to assault of accused No.1 by

means of sickle suffered injuries over his left forearm. The

said evidence has been further corroborated by the

evidence of PWs.2 to 5 and the medical evidence in the

form of PW.6 Dr.Asha Jyothi and the wound certificate

Ex.P.3 substantiate the oral testimony of PW.1 injured

Jagadeesh that he sustained injuries in the incident due to

assault of accused by means of sickle. The evidence of

PW.7 Balakrishna would go to show that he has recorded

the complaint of injured complainant in the hospital Ex.P.1

and on the basis of it case was registered in Uppinangadi

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CRL.A. No.916 OF 2017

Police Station crime No.71/2014. The evidence of

Investigating Officer PW.8 Deepak K and PW.9

K R Shivakumar substantiate the oral testimony of PWs.1

to 5. However, the Trial Court without there being any

basis doubted the presence of PWs.2 to 5 at the place of

incident and recorded improper reasoning in acquitting the

accused. The findings recorded by the Trial Court cannot

be legally sustained and the same needs to be interfered

by this Court.

13. Per contra, learned counsel for the accused has

argued that the evidence of PWs.1 to 5 cannot be relied as

they are interested witnesses, since they are related to

each other. On account of enmity between accused and

complainant PW.1 Jagadeesh over land dispute this false

case has been filed. The sickle alleged weapon said to

have been used by accused No.1 in assaulting PW.1

Jagadeesh causing bleeding injury has not been seized by

the Investigating Officer. The Investigating Officer has not

enquired the operator and attendant of Hitachi vehicle and

none of the houses at the place of incident have been

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CRL.A. No.916 OF 2017

examined to prove the alleged incident wherein PW.1

Jagadeesh sustained bleeding injury. Under these

circumstances, the evidence of PWs.1 to 5 in view of

admitted dispute between accused and PW.1 complainant

Jagadeesh over land dispute cannot be relied. The family

members of PW.1 Jagadeesh have been projected as if

they are the eye witnesses, though none of them were

present at the place of incident according to the complaint

allegations at Ex.P.1 and the evidence of PW.1 Jagadeesh.

The Trial Court has rightly appreciated the oral and

documentary evidence placed on record and justified in

acquitting the accused and the said finding recorded by

the Trial Court is based on material evidence on record

and the same does not warrant any interference by this

Court.

14. 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 the

accused from the alleged offence punishable under

Sections 341, 323, 324, 504, 307 and 201 r/w Section 34

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CRL.A. No.916 OF 2017

of IPC. Therefore, the accused has primarily the double

benefit. Firstly, the presumption under law that, unless the

guilt is proved, the accused has to be treated as innocent

in the alleged crime. Secondly, the accused is already

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.

(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

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CRL.A. No.916 OF 2017

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."

(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 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.

of Kerala, reported in (2022) 8 Supreme Court Cases 440,

at Paragraph 25 of its judgment, the Hon'ble Apex Court

was pleased to observe as below:

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CRL.A. No.916 OF 2017

" 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 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.

The Hon'ble Apex Court in another latest judgment in

Roopwanti Vs. State of Haryana and others reported

in 2023 SCC online 179, wherein it has been observed

and held in paragraph No.7 that:

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CRL.A. No.916 OF 2017

"In cases where a reversal of acquittal is sought, the Courts must keep in mind the presumption of innocence in favour of the accused, on grounds of it surviving to rigorous of full trial is strengthened and stands forfeited. The prosecution then while still working under the same burden of proof, is required to discharge a more onerous responsibility to annual and reverse the forfeited presumption of innocence. This fortification of the presumption of innocence has been held in a catena of judgment by this Court".

It is keeping in mind the above principles laid down

by the Hon'ble Apex Court, we proceed to analyse the

evidence placed in this matter.

15. On careful perusal of oral evidence placed on

record by the prosecution, it would go to show that the

genesis of incident is the accused having tried to close the

existence trench on either side of the road adjacent to the

land of accused in one side and Arun Christian on another

side with the help of Hitachi leading from Kanchana to the

house of complainant PW.1 Jagadeesh. The prosecution to

prove the place of incident relies on the oral testimony of

PW.10 Koragappa Salion shown by PW.5 Chandrakala and

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CRL.A. No.916 OF 2017

accordingly spot panchanama Ex.P.2 was drawn by PW.8

Deepak K, the Investigating Officer of the case. The

prosecution to prove the incident relies on the oral

testimony of PW.1 Jagadeesh, PW.2 Purushotham, PW.3

Sadanand, PW.4 Tulasi w/o PW.1 Jagadeesh, PW.5

Chandrakala elder sister of PW.1 and PW.7 Balakrishna.

The prosecution to prove the complainant having

sustained injuries in the incident due to assault of accused

relies on the medical evidence of PW.6 Dr.Asha Jyothi who

examined injured complainant on 02.03.2014 and issued

wound certificate Ex.P.3. Accused have failed produced the

sickle used for committing the assault of complainant PW.1

Jagadeesh relies on the oral testimony of PW.9 K R

Shivakumar. The said material evidence placed on record

by the prosecution will have to be appreciated in the light

of case made out by the prosecution.

16. PW.1 Jagadeesh has deposed to the effect that

on 02.03.2014 due to holiday he was in the house there is

a panchayath road to reach his house since from time

immemorial having trenches on either side of the road. On

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CRL.A. No.916 OF 2017

one side there was house of accused is situated and on

another side there was house of Arun Christian. On

02.03.2014 accused by Hitachi vehicle was closing the

trenches extending to the road and leveling the same. At

that time he questioned accused as to why they are

closing the road leading to his house. However, accused

No.1 carelessly replied. Therefore, he went to the

Uppinangadi Police Station and filed the complaint. The

accused was secured to the Police Station and they were

instructed not to do any work till they visit the spot.

However, in spite of that at about 7.30 p.m. accused

continued to work in leveling the road and he went to

accused to question the same. However, accused No.1 by

means of sickle came to assault on him and he brought

the left hand across, due to which sustained bleeding

injury over left forearm. Accused No.2 slapped on his

cheek. Thereafter, they pushed him beneath Hitachi with

an intention to commit his murder. PW.1 Jagadeesh

escaped from the said place and came to the house, where

he was feeling giddiness and due to which his co-brother

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CRL.A. No.916 OF 2017

Purushotham shifted him to Puttur government hospital.

On arrival of police to the hospital he has filed the

complaint Ex.P.1.

17. PW.2 Purushotham has deposed to the effect that

he is working in chicken shop at Uppinangadi. On

02.03.2014 after completing his work, he was coming

towards the house of his mother-in-law and found accused

No.1 was closing the road by Hitachi vehicle. PW.1

Jagadeesh went to the said place and stopped the accused

from closing the road. The accused No.1 by means of

sickle came to assault him, but he has brought his left

hand across, due to which he suffered bleeding injury over

his left forearm. Accused No.2 slapped on PW.1 over his

cheek and threatened to kill him. Accused have also

pushed PW.1 beneath Hitachi vehicle and attempted to

commit his murder. PW.1 Jagadeesh escaped from the

said place and came towards the house and he saw the

incident in the light of Hitachi vehicle.

18. PW.3 Sadanand has deposed to the effect that on

02.03.2014 he was returning to his house after coolie

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CRL.A. No.916 OF 2017

work at that time he found accused were closing the road

leading to the house of PW.1 Jagadeesh. When PW.1 went

to the said place to stop the accused, accused No.1 by

means of sickle went to assault him, but he brought his

left hand across, due to which he suffered bleeding injuries

over left hand and also abused in filthy language. Accused

No.2 slapped on the left cheek of PW.1 Jagadeesh and

PW.1 Jagadeesh escaped from the said place and went

towards his house. Thereafter, PW.2 Purushotham has

shifted the injured PW.1 Jagadeesh to the hospital and he

has seen the incident in the light of Hitachi vehicle.

19. PW.4 Tulasi w/o PW.1 Jagadeesh has deposed to

the effect that on 02.03.2014 accused were closing the

road leading to their house, her husband PW.1 Jagadeesh

went to the said place to stop accused from closing the

road, accused No.1 by means of sickle came to assault her

husband PW.1 Jagadeesh and he brought the left hand

across due to which he suffered bleeding injury over left

forearm. Accused No.2 slapped on the left cheek of PW.1

Jagadeesh further accused have pushed PW.1 Jagadeesh

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CRL.A. No.916 OF 2017

beneath Hitachi vehicle with an intention to commit his

murder.

20. PW.5 Chandrakala the elder sister of PW.1

Jagadeesh has deposed to the effect that on 02.03.2014

she had came to her parental house and accused were

closing the road leading to their house. Her brother PW.1

Jagadeesh went to accused to stop them from closing

road, accused No.1 by means of sickle came to assault

PW.1 Jagadeesh but he brought his left arm across, due to

which he suffered bleeding injuries over left forearm.

Accused No.2 slapped on the left cheek of PW.1

Jagadeesh. Accused have pushed PW.1 Jagadeesh with an

intention to commit his murder and PW.1 Jagadeesh

escaped from the said place and came towards the house

and she has seen the incident in the light of the Hitachi

vehicle.

21. The medical evidence of PW.6 Dr.Asha Jyothi

would go to show that on 02.03.2014 at 11 p.m. she has

examined PW.1 Jagadeesh with history of assault and on

examining, she found abrasion on the left forearm and the

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CRL.A. No.916 OF 2017

said injuries is opined to be simple in nature. Accordingly

she has issued wound certificate Ex.P.3 and she has

opined that if a person by holding anybody tightly went to

assault with sickle, in that process, if he escaped and then

hit from sickle injury mentioned in Ex.P.3 can be caused.

22. If the above referred evidence of PWs.1 to 6 is

appreciated in the light of complaint allegations Ex.P.1

then it would go to show that there is enmity between

accused and complainant PW.1 Jagadeesh with his family

regarding the land dispute. The evidence of PW.6 Dr.Asha

Jyothi would go to show that she has examined the injured

PW.1 Jagadeesh on 02.03.2014 at 11 p.m. with the history

of assault taken place at 7.30 p.m. of the said day. On

examination she found abrasion on the left forearm and

the said injury is opined to be simple in nature. The mere

presence of injury on the left forearm of PW.1 Jagadeesh

alone cannot be said as sufficient evidence to hold that

PW.1 Jagadeesh has sustained such injury due to assault

of accused No.1 by means of sickle. The alleged overt act

of accused No.1 in causing injury by means of sickle on

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CRL.A. No.916 OF 2017

PW.1 questioning accused regarding the closure of the

road leading to his house has to be proved by the

prosecution.

23. According to the case of prosecution accused

were alleged to have filled the existing trench on either

side of the road abutting to the land of accused on one

side and the land of Arun Christian on the other side.

Panchayath road was in existence connecting to the house

of PW.1 Jagadeesh from Kanchana since time immemorial.

It is alleged by the prosecution that accused started

leveling his land extending till the land of Arun Christian

by closing the road with the help of Hitachi. The

prosecution has not produced any documents to show the

existence of Panchayath road leading from Kanchana to

the house of PW.1 Jagadeesh. The Investigating Officer

has not examined any of the responsible officer of

panchayath and collected documents to show the

existence of road leading from Kanchana to the house of

PW.1 Jagadeesh. Therefore, it is evident that other than

the oral testimony of PWs.1 to 5 who are interested with

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CRL.A. No.916 OF 2017

each other, there is no evidence on record to show the

existence of panchayath road leading from Kanchana to

the house of PW.1 Jagadeesh.

24. The prosecution claims that accused were trying

to close the panchayath road leading from Kanchana to

the house of PW.1 Jagadeesh by means of Hitachi vehicle

and the first such attempt was noticed by PW.1 Jagadeesh

during the day time. However, no any particulars

regarding the Hitachi vehicle used by accused Nos.1 and 2

for closing the road has been either given by complainant

PW.1 in his complaint nor the same is furnished during the

course of evidence of PWs.1 to 5. It may be true that the

seizure of Hitachi vehicle and examination of owner of the

vehicle may not be absolutely necessary. However, at the

least the operator of the Hitachi vehicle and attender

should have been examined by the Investigating Officer

PW.8 Deepak K to ascertain the truthfulness of the version

of PW.1 Jagadeesh and his family members. It is true that

mere fact of PWs.1 to 5 are the family members

and interested with each other may not

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be a ground to reject their evidence in entirety. However,

when there is scope for doubting their evidence with

regard to the incident and the manner in which it has been

taken place, the examination of operator of the Hitachi

vehicle and the attender to ascertain the truthfulness of

the incident claimed by PW.1 Jagadeesh was necessary.

25. If the evidence of PW.1 Jagadeesh and the

complaint allegations Ex.P.1 are perused, then it is evident

that even according to the complainant PW.1 Jagadeesh

nobody accompanied him when he went to the place of

accused to stop them from closing the road. However,

PW.2 Purushotham, PW.3 Sadanand, PW.4 Tulasi w/o

PW.1 Jagadeesh, PW.5 Chandrakala elder sister of PW.1

Jagadeesh have given their evidence as if they are the eye

witnesses to the incident. In fact none of them were

present at the time of incident even according to the

evidence of complainant PW.1 Jagadeesh and the

complaint allegations Ex.P.1. PW.1 Jagadeesh admitted in

his cross-examination that he has not stated in the

complaint Ex.P.1 that he has seen the accused in the light

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of JCB and he is deposing to that effect for the first time

before the Court. PW.1 Jagadeesh further admitted that

place of incident is at a distance of half kilometer from his

house. He further admits that the place of incident cannot

be seen if anybody stands in front of his house. If the said

admission of PW.1 Jagadeesh taken into consideration, the

incident in question was being witnessed by PWs.2 to 5

is highly improbable and their presence at the place of

incident and having witnessed the incident itself is very

much doubtful. They have given stereotype evidence as

deposed by PW.1 in his evidence before the Court.

Therefore, the possibility of they giving evidence in

support of the evidence of PW.1 Jagadeesh in a

mechanical way cannot be ruled out.

26. It has been brought on record in the cross-

examination of PW.6 Dr.Asha Jyothi that history of assault

has not been given in the wound certificate Ex.P.3.

However, in her examination-in-chief, she has deposed to

the effect that PW.1 Jagadeesh was brought to the

hospital with the history of assault incident on 02.03.2014

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at 7.30 p.m. On what basis such evidence has been given

without there being any reference to that effect in wound

certificate Ex.P.3 has not been explained by the

prosecution. PW.6 has admitted in her cross-examination

that in Ex.P.3 wound certificate injury caused to posterior

aspect or anterior aspect of left forearm has not been

mentioned, so also the age of injury is also not examined,

she further admits that if the sharp edge weapon came in

contact incised, avulsion or fracture could be caused. She

further admits that, if bill-hooked sickle is used,

corresponding injury could be caused. It has been further

elicited in the cross-examination that if the person while

repairing the vehicle touched any portion of the vehicle

and came in contact with hard portion of the vehicle

injury noted in Ex.P.3 could be caused.

27. Accused Nos.1 and 2 during the course of their

recording statement under Section 313 of Cr.P.C. have

produced six documents. The said documents would go to

show that accused No.1 filed the complaint before

Tahsildar, Puttur dated 27.03.2014 alleging that PW.1

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Jagadeesh and his brother constructed iron gate across

Neerakatte of Shibarla road for restricting the vehicle

movement before his house. The panchanama to that

effect was drawn by village accountant, Bajathoor dated

24.08.2014 and the said iron gate was fixed three years

prior to filing the application and the proceedings have

taken place before Tahsildar, Puttur. Wherein, revenue

inspector of Uppina Angadi was instructed to remove the

gate put up by PW.1 Jagadeesh and his brothers in survey

No.109/01 which is government mud road leading from

Neerakatte to Shibarla situated at Bajathoor village and to

take action as per Section 102 of Karnataka Land Revenue

Act, 1964. PW.1 Jagadeesh in his evidence admits that

there was dispute between him and accused regarding the

space, however claimed that the said dispute does not

pertains to road. It is also pertinent to note that PW.1

Jagadeesh himself filed an application dated 19.08.2015

seeking time to compromise the matter and one month

time was sought for compromising the matter, otherwise

we will proceed with the matter. Under such circumstance

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there is every reason to believe that accused did not agree

for the terms, therefore, he has chosen to proceed with

the case.

28. The another circumstances is that Arun Christian,

Ramakka, Devadas and Rukmaiah are also the persons

who would be affected by closure of the road, but none of

them have been examined by the Investigating Officer to

prove the existence of road and further the incident having

taken place as claimed by PW.1 Jagadeesh. The presence

of PWs.2 to 5 at the place of incident itself is very much

doubtful and their stereotype of evidence as if they have

witnessed the incident further adds to the suspicion of

they being tutored to give evidence as deposed by PW.1.

It is only family members of PW.1 have been chosen to

give evidence regarding the alleged incident which appears

to be unnatural in the given set of facts and circumstances

of the case.

29. The prosecution has alleged that accused have

pushed him beneath the Hitachi vehicle with an intention

to commit his murder. The prosecution by evidence on

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record must demonstrate that necessary inference can be

drawn from the proved facts of the case that accused has

such intention to commit the murder of PW.1 Jagadeesh.

In this context of the matter it is useful to refer the

judgment of Hon'ble Supreme Court in Sanjay Kumar

and Another Vs. State of MP reported in 1994

Supreme Court Cases (cri) 586 wherein it has been

observed and held that:

"Section 307 and 324 IPC- Attempt to murder- Necessary ingredients- Held, in order to bring the case within the ambit of Section 307 it must be shown that the accused acted with such intention or knowledge and under such circumstances that if he by that act caused death, he would be guilty of murder-That is, intention or knowledge to commit murder must exist".

In view of the principles enunciated in this decision, if the

evidence of PWs.1 to 5 are perused and appreciated in the

light of complaint allegations Ex.P.1, no any inference can

be drawn regarding the intention of accused in alleged

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pulling of PW.1 Jagadeesh beneath the Hitachi vehicle

with an intention to commit his murder.

30. The prosecution alleges that accused have

abused PW.1 Jagadeesh with an intention to cause insult

to him. The entire examination-in-chief of PW.1

Jagadeesh is totally silent regarding the alleged abusive

words said to have been used by accused with intend to

cause alarm to PW.1, or to cause him to do any act which

he is legally not bound to do or to omit to do any act

which he was legally entitled to do, as a means of

avoiding execution of such threat or to cause injury to

PW.1 then only it can be said that accused have

committed criminal intimidation. In the complaint

allegations Ex.P.1 it is only alleged that accused have

abused and there is no evidence on record to show that

same was with an intention to commit criminal

intimidation. In this context of the matter it is useful to

refer the judgment of Hon'ble Apex Court in Fiona

Shrikhande Vs. State of Maharashtra reported in AIR

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2014, SC 957, wherein it has been observed and held

that:

"Section 504 comprises of the following ingredients, viz., (a) intentional insult, (b) the insult must be such as to give provocation to the person insulted, and (c) the accused must intend or know that such provocation would cause another to break the public peace or to commit any other offence. The intentional insult must be of such a degree that should provoke a person to break the public peace or to commit any other offence. The person who intentionally insults intending or knowing it to be likely that it will give provocation to any other person and such provocation will cause to break public peace or to commit any other offence, in such a situation the ingredients of Section 504 are satisfied. One of the essential elements constituting the offence is that there should be an act of conduct amounting to intentional insult and the mere fact that accused abused the complainant, as such, is not sufficient by itself to warrant a conviction under section 504."

The evidence of PWs.1 to 5 placed on record by the

prosecution is insufficient to prove the legal requirement

for the offence punishable under Section 504 of IPC.

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31. The prosecution also alleges that accused have

caused disappearance of commission of evidence of

assaulting PW.1 Jagadeesh, it is only the evidence of PW.9

K R Shivakumar who took further investigation and filed

the charge sheet has stated that since accused have not

produced the sickle, he has incorporated the offence

punishable under Section 201 of IPC. The mere non