Karnataka High Court
State Of Karnataka vs Manjunath on 5 January, 2024
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CRL.A No. 500 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL
CRIMINAL APPEAL NO. 500 OF 2017
Between:
State of Karnataka
By Kargal Police Station
Represented by
State Public Prosecutor
High Court Building
Bengaluru - 560001.
...Appellant
(By Sri. Thejesh P, HCGP)
And:
1. Manjunath
Digitally signed by
VEERENDRA Aged about 50 years,
KUMAR K M R/o Korakodu, Idvani,
Location: HIGH Shivamogga - 577 201.
COURT OF
KARNATAKA
2. Vijay
Aged about 43 years,
R/o Korakodu, Idvani,
Shivamogga - 577 201.
3. Savithri
Aged about 40 years,
Occ: Housemaker,
R/o Korakodu, Idvani,
Shivamogga - 577 201.
...Respondents
(By Sri B.N.Shetty, Advocate for R1 to R3)
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CRL.A No. 500 of 2017
This Criminal Appeal is filed under section 378(1) and (3)
Cr.P.C. praying to grant leave to appeal against the judgment
and order of acquittal passed by the Learned V Additional
District and Sessions Judge, Shivamogga sitting at Sagar in
S.C.No.82/2012 dated 01.10.2016 thereby acquitting the
accused/respondents of the offences p/u/s 341, 326, 307, 504,
506, 323, 114 read with 34 of IPC.
This Criminal Appeal, coming on for hearing, this day,
Sreenivas Harish Kumar J., delivered the following:
JUDGMENT
The acquittal judgment in S.C.No.82/2012 on
the file of V Additional District and Sessions Judge,
Shivamogga (sitting at Sagar) has been assailed
by the State in this appeal.
2. Prosecution case is that PW-1
Chandrashekara while returning home at 09.30pm
on 16.03.2011, his two elder brothers, namely,
accused No.1 Manjunatha and accused No.2 Vijay
stopped him on his way, picked up quarrel relating
to sharing the family property and in that course
accused No.1 attempted to inflict an injury on his
head with a machete. While warding of the blow
to his head, he sustained an injury to his left ear,
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which was partially cut. Accused No.1 again
inflicted an injury on his right forearm. Accused
No.2 fisted on his chest and knocked him down.
When he screamed, his wife Padmavathi (PW3) and
nephew Eshwara (PW2) came to that place. Seeing
them, accused No.1 and 2 threw away the machete
at that place itself and put life threat to him while
leaving from that place. PW1 was taken to
hospital. On 17.03.2011 at 11.30am, a police
constable recorded his statement based on which
FIR in Crime No.13/2011 was registered for the
offences punishable under Sections 341, 323, 326,
504 and 506 read with Section 34 of IPC.
3. The investigation led to filing of charge
sheet for the offences punishable under Sections
504, 341, 506, 323, 326, 307 and 114 read with
Section 34 of IPC not only against accused No.1
and 2, but against two more accused, namely,
Savithri, the wife of accused No.1 and Yashodha,
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the wife of accused No.2, respectively. The
allegation against accused No.3 and 4 was that
they instigated accused No.1 and 2 to assault PW1.
During trial accused No.4 Yashodha died and the
case against her was abated.
4. The prosecution examined 16 witnesses
and relied upon 13 documents as per Exs.P1 to
P13, and 4 material objects as MOs1. to 4. Exs.D1
to D5 were the contradictions marked by the
defence during the cross-examination of PW1 and
PW3.
5. Assessing the evidence the trial court
acquitted accused No.1 to 3 of the charges leveled
against them. It has recorded reasons that there
is discrepancy in regard to time when the incident
occurred. The police registered a counter case
against PW1 and PW2 and they were tried in
S.C.No.206/2015. The time of incident mentioned
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in S.C.No.206/2015 was 11.00pm on 16.03.2011,
but in the present case the time of occurrence is
shown as 09.30pm. There is no explanation for
the same. Moreover, there was a long standing
property dispute between PW1, and accused No.1
and 2, and for this reason the evidence required to
be scrutinized carefully. PW3 gave rise to
contradictions as per Ex.D.2 to D5. The seizure of
the weapon has not been established inasmuch as
the panch witnesses turned hostile. PW2-Eshwara
is the nephew and PW3-Padmavathi is the wife of
PW1. In view of the property dispute, the
testimonies of PW2 and PW3 is difficult to be relied
upon. These aspects do not inspire the confidence
of the court to record conviction.
6. We have heard the arguments of Sri
Thejesh N, learned High Court Government Pleader
for the appellant/State and Sri B.N.Shetty,
Advocate appearing for respondents No.1 to 3.
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7. It is the argument of Sri Thejesh that the
incident occurred around 11.00pm on 16.03.2011
while PW1 was returning home after finishing his
work. Incident occurred near the house of accused
No.1. The reason for the incident is with regard to
sharing of the family property. If the entire
evidence of PW1 is perused, it can very well be
said that he has given a clear account of the
incident in which he was assaulted by accused
No.1 and 2. He has stated very clearly that when
accused No.1 waved a machete at him in order to
assault on his head, the blow fell on his left ear as
a result of which the ear was partially cutoff. This
is reflected in the wound certificate marked as
Ex.P9. Doctor examined as PW5 has also deposed
about the same. Moreover PW2 and PW3 rushed to
the spot while PW1 was being assaulted. Their
evidence also discloses as to how the incident
occurred. PW1 to PW3 have not been assailed in
the cross examination. The weapon used for
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assault was also recovered and it is marked as
MO1. The clothes of PW1 had been stained with
blood and they were produced as per MO2 to MO4.
These are all the aspects that corroborate the
version of PW1. This being the evidence, the trial
court should not have acquitted the accused and
hence this appeal deserves to be allowed and the
accused convicted for the said offences and
punished appropriately.
8. On the other hand, Sri B.N.Shetty
submits that PW1 and PW2 went to the house of
accused No.1 in the evening hours on 16.03.2011,
and abused him in vulgar language for cutting the
tender mangoes. On the same day at 11.00pm,
PW1 and PW2 came near their house with a
machete and club, forcibly opened the door of their
house and tried to assault accused No.1. When
PW2 tried to assault accused No.1 with a machete,
the blow fell on the ear of PW1 and in that course
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his ear was partially cut. In this regard FIR was
registered at the police station. Continuing his
arguments, he submits that though the counter
case ended in acquittal, it can be very much
gathered that PW1 and PW2 suppressed the
material facts. Actually PW1 did not sustain injury
on his left ear because of alleged assault made by
accused No.1. Both PW1 and PW2 are inimical
towards accused No.1 and 2 in relation to sharing
the family property and because of this
interestedness, their testimony cannot be believed
and rightly the trial court has come to this
conclusion. He also pointed out that the wound
certificate does not disclose the history. If really
PW1 had been assaulted by accused No.1, he could
have stated before the doctor as to how he
sustained injury. Because of these doubtful
circumstances in evidence, the trial court has
rightly acquitted the accused and therefore the
appeal deserves to be dismissed.
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9. We have perused the entire evidence.
PW1 to PW3 are the main witnesses. Because of
registration of a criminal case against PW1 and
PW2, it can be very well said that the incident
might have occurred on 16.03.2011 in he
background of some property dispute. On
assessing the evidence of PW1 to PW3 what we
find is that though PW1 sustained an injury to his
left ear and right forearm, merely for that reason
it cannot be said that they were inflicted by
accused No.1. According to PW1 the incident
occurred at 09.30pm on 16.03.2011 when he was
returning home. PW1 has stated that accused
No.1 made an attempt on his life by trying to
assault with a machete. While cross examining
PW1, suggestions were given to him in such way
that accused did not inflict injury either on the left
ear or on the forearm rather they were self
inflicted. Ofcourse PW1 denied the suggestion.
PW2 and PW3 have also supported the prosecution
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case. Merely for this reason, it cannot be said that
conviction can be recorded based on the
testimonies of PW1 to PW3. Though PW5, the
doctor who examined PW1, has given evidence that
he noticed three injuries including the injury on
the left ear sustained by PW1, it is to be stated
that if according to PW1 it was accused No.1 who
inflicted those injuries, nothing prevented him
from disclosing the name of the first accused
before PW5 in the hospital. He just stated that he
was assaulted and did not disclose the name of the
assailant. Even in Ex.P9 the wound certificate
name of the assailant is not recorded. If PW1 had
disclosed the name of the assailant, certainly the
doctor would have entered the name of the
assailant in the MLC register. If the evidence of
PW1 to PW3 is assessed in the light of the
evidence given by PW5, certainly a doubt arises in
their narration of the incident.
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10. Secondly in Ex.P1, the statement of PW1
based on which FIR was registered, there is no
implication of accused No.3 and 4. It was only at
the time when charge sheet was filed, their names
were added. If accused No.3 and 4 were also
present and instigated accused No.1 and 2 to make
an attempt on the life of PW1, he could have taken
the names of those two accused, who were none
other than his sisters-in-law, at the time when he
lodged FIR. No explanation is forthcoming as to
on what basis accused No.3 and 4 came to
implicated in the charge sheet. If during
investigation PW1 took the names of accused No.3
and 4, it only shows his attempt to falsely
implicate them.
11. The third aspect is that in relation to the
same incident PW1 and PW2 were also tried in
S.C.No.206/2015. In that case, the time of
incident is shown as 11.00pm. Allegation is that
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PW1 and PW2 entered the house of accused No.1
and 2 and picked up quarrel with them. It is
relevant to note that when the FIR was registered
against PW1 and PW2, it was stated that PW1
sustained injury to his left ear when PW2 tried to
assault his uncle i.e., accused No.1 in the present
case. The machete marked MO1 was produced by
PW2 before the police. According to PW1 the
accused threw away the machete while leaving
that place. PW1 says that the machete was given
to the police by PW2. PW2 also says so. But the
anomaly is that in the examination-in-chief he
stated that he himself kept the machete near the
house of PW1. It has been elicited from him in the
cross examination that he had kept the machete at
the bottom of mango tree trunk. The mahazar
also shows that it was handed over by PW2 to the
police. Though the machete might have been
seized from PW2, the question is not that; if
according to prosecution the accused had thrown
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away the machete at the place where the incident
actually occurred, they should have recovered the
machete at that place. If PW2 would produce the
machete, it provides probability to the defence
version that both PW1 and PW2 might have gone
to the house of accused No.1 to quarrel with them
and in that course they might have used the
machete. Thus seen a doubt definitely arises as to
how PW1 sustained an injury to his left ear-was it
due to assault by accused No.1 or accidental fall of
blow on his left ear while PW2 tried to assault
accused No.1.
12. As per the version of PW1, PW3 is not an
eye witness, but she has given evidence as if she
is an eye witness. She has denied to have given
statements as per Ex.D2 to D5. These are
material contradictions which shake the
prosecution case at its root and thereby makes the
version of PW3 untrustworthy.
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13. Reappreciation of evidence by us takes to
concur with conclusions drawn by the trial court
for acquitting the accused. We do not find any
merit in this appeal. Therefore appeal is
dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
KMV
