Karnataka High Court

Sri Bheeme Gowda vs State Of Karnataka on 9 January, 2024

                                                 -1-
                                                             NC: 2024:KHC:1096
                                                        CRL.RP No. 141 of 2017




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                              DATED THIS THE 9TH DAY OF JANUARY, 2024
                                               BEFORE
                               THE HON'BLE MR JUSTICE G BASAVARAJA
                            CRIMINAL REVISION PETITION NO. 141 OF 2017


                      BETWEEN:

                      1.    SRI BHEEME GOWDA
                            S/O LATE NANJEGOWDA
                            AGEDA BOUT 50 YEARS
                            R/A YALENAHALLI VILLAGE,
Digitally signed by         HIRISAVE HOBLI,
SANDHYA S
Location: High              CHANNARAYAPATNA TALUK
Court of
Karnataka                   HASSAN DISTRICT - 573103

                      2.    SRI RAGHAVENDRA
                            S/O BHEEMEGOWDA
                            AGEDA BOUT 23 YEARS
                            R/A YALENAHALLI VILLAGE
                            HIRISAVE HOBLI
                            CHANNARAYAPATNA TALUK
                            HASSAN DISTRICT - 573103

                      3.    SMT NINGAMMA
                            W/O BHEEMEGOWDA
                            AGED ABOUT 42 YEARS
                            R/A YALENAHALLI VILLAGE
                            HIRISAVE HOBLI
                            CHANNARAYAPATNA TALUK
                            HASSAN DISTRICT
                                                                ...PETITIONERS
                      (BY MISS. BHARATHI.M, ADVOCATE. FOR
                       SRI. VENKATESH R BHAGAT., ADVOCATE)
                               -2-
                                             NC: 2024:KHC:1096
                                       CRL.RP No. 141 of 2017




AND:

1.   STATE OF KARNATAKA
     BY THE SUB INSPECTOR OF POLICE
     HIRISAVE - CHANNARAYAPATNA TALUK
     HASSAN DISTRICT
     IN THE HIGH COURT BY ITS
     THE STATE PUBLIC PROSECUTOR
     HIGH COURT BUILDING,
     BANGALORE - 560001.
                                                ...RESPONDENT
(BY SRI. M.R.PATIL, HCGP.)


     THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT DATED 11.1.2017 PASSED BY
THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE,
HASSAN DISTRICT, (SIT       AT CHANNARAYAPATNA) IN
CRL.A.NO.130/2016 AT ANNEXURE-A AND RESTORE THE
JUDGMENT DATED 23.12.2015 PASSED BY THE SR. CIVIL
JUDGE AND JMFC, CHANNARAYAPATNA IN C.C.NO.350/2013 AT
ANNEXURE-B.

     THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:

                             ORDER

The revision petitioner/accused Nos.1 to 3 have

preferred this appeal against the judgment dated

11.01.2016 passed in criminal appeal No.130/2016 by the

Court of the 4th Addl. District and Sessions Judge, Hassan

District (Sit at Channarayapatna) (hereinafter referred to

as 'Appellate Court' for short.) as the Appellate Court has

NC: 2024:KHC:1096

set aside the judgment of acquittal dated 23.12.2015

passed in C.C.No.350/2013 by the Court of the Senior Civil

Judge, Channarayapatna (hereinafter referred to as 'Trial

Court' for short) and remitted the matter to the Trial Court

from the stage of framing charge.

2. For the sake of convenience, the parties in this

revision petition are referred to as per their status and

rank before the Trial Court.

3. The brief facts of the case of prosecution is that

on 17.08.2008 at about 2.00 p.m., the CW.1 was

cultivating the property bearing Survey.No.22/1 of

Yalenahalli village, by that time, the accused persons

grazing cattle in the land of CW.1. On questioning the

same, the accused persons abused him in filthy language,

caught hold and assaulted by making use of handle of

spade ('UÀÄzÀÝ° PÁªÀÅ') and dragged by holding the hair and

also threatened with dire consequences. Thus, the

accused have committed the offence punishable under

NC: 2024:KHC:1096

Section 341,323,324,326,504 and 506 read with Section

34 of Indian Penal Code.

4. After filing of the charge sheet, cognizance was

taken against the accused, the case was registered in

C.C.No.350/2013. In pursuance of the summons, the

accused appeared before the Court and enlarged on bail.

Charge framed and read over and explained to the

Accused. Having understood the same accused pleaded

not guilty and claimed to be tried.

5. To prove the guilt of the accused, 7 witnesses

were examined as PWs.1 to 7, 7 documents were got

marked as Exs.P1 to P7 and 2 material objects were

marked as M.O.s.1 and 2. On closure of prosecution

evidence, statement under Section 313 of Cr.P.C. was

recorded and the accused has totally denied the

incriminating evidence found against him but he has not

chose to adduce any defence evidence on his behalf.

NC: 2024:KHC:1096

6. On hearing the arguments on both sides, the

Trial Court has acquitted the accused for the commission

of offence punishable under Section 341,323,324,326,504

and 506 read with Section 34 of Indian Penal Code. Being

aggrieved by this judgment of acquittal, the State has

preferred the appeal before Appellate Court in criminal

appeal No.130/2016 and the same came to be allowed on

11.01.2016 and the judgment of acquittal dated

23.12.2015 passed in C.C.No.350/2013 by the Trial Court

was set aside and the case was remitted to the Trial Court

with a direction for fresh disposal in accordance with law

and from the stage of framing charge. Being aggrieved by

the judgment passed by the Appellate Court, the revision

petitioner/accused Nos.1 to 3 have preferred this revision

petition.

7. Learned counsel for the revision petitioner

submits that the Appellate Court has erred in expanding

the scope of enquiry beyond the grounds raised by the

prosecution in its appeal memo. The finding given by the

NC: 2024:KHC:1096

Appellate Court is extraneous and neither canvassed by

either of the parties. Under such circumstances,

remanding the matter on the ground that the charges are

not properly framed is erroneous understanding of law

and, therefore, the impugned order passed by the

Appellate Court is liable to be interfered with. Further, the

Appellate Court has erred in holding that the statement

recorded under Section 313 of the Cr.P.C. is not proper

which is neither challenged by the prosecution nor by the

accused. Under such circumstances, remanding on that

ground is erroneous and liable to be interfered with. The

Appellate Court has also find the fault with the Trial Judge

as to format of judgment even though the such grounds

are not raised by the prosecution is of violation of Section

374 of Cr.P.C. The Appellate Court has exceeded its

jurisdiction and ignored the duty of the Appellate Court

and thereby proceeded to frame point for consideration as

to framing of charges, examination of the accused under

Section 313 of Cr.P.C. and recalling of Trial Court which is

against to the tone and tenor of the criminal procedure

NC: 2024:KHC:1096

and law relating to appeal as contemplated under Section

378 of Cr.P.C. On all these grounds, he sought to allow

this revision petition.

8. As against this, learned High Court Government

Pleader submits that the Appellate Court has properly

appreciated the evidence on record in accordance with law

and facts and remanded the matter to the Trial Court and

that there are no grounds to interfere with the impugned

judgment passed by the Appellate Court. On all these

grounds, he sought to dismiss the revision petition.

9. Having heard the arguments on both sides, the

following points would arise for my consideration:

i. Whether the revision petitioner/accused Nos.1 to 3 have made out grounds to interfere with the judgment passed by the Appellate Court is illegal, perverse and not sustainable under law?

ii. What order?

10. My answer to the above points are as under:

Point No.1: in affirmative

NC: 2024:KHC:1096

Point No.2: as per final order.

Regarding point No.1:

11. I have carefully examined the material placed

before this Court.

To substantiate the case of prosecution, 7

witnesses were examined as PWs.1 to 7, 7 documents

were got marked as Exs.P1 to P7 and 2 material objects

were got marked as M.O.s 1 and 2. It is the case of

prosecution that on 17.08.2008 when PW.1 - Ravikumar

was cultivating the land bearing Survey.No.22/1 of

Yalenahalli village, the accused was grazing their cattle in

the said land. On questioning the same, the accused

abused him in filthy language and wrongfully restrained

him and assaulted him with handle of spade ('UÀÄzÀÝ° PÁªÀÅ)'

and also all the accused gave criminal intimidation to the

life of PW.1. The Trial Court has acquitted the accused for

the alleged commission of offence. The Appellate Court

has remanded the matter to the Trial Court with a

direction for fresh disposal in accordance with law and

NC: 2024:KHC:1096

from the stage of framing charge in accordance with law

and thereafter the Trial Court has to examine the accused

under Section 313 of Cr.P.C. and dispose of the case in

accordance with law. The Prosecution has not raised any

objection before the Appellate Court as to framing of

charge against the accused and also recording of

statement under Section 313 of Cr.P.C. Further, the

Appellate Court suo motu has pointed out that the Trial

Court has not properly framed the charges and recorded

the statement of accused under Section 313 of Cr.P.C.

12. At this stage, it is appropriate to mention here

as to the provision of Section 464 of Cr.P.C. which reads as

under:

"464. Effect of omission to frame, or absence of, or error in, charge - (1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.

- 10 -

NC: 2024:KHC:1096

(2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may -

(a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the charge.

(b)in the case of an error, omission or irregularity in the charge, direct a new trail to be had upon a charge framed in whatever manner it thinks fit:

Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction."

The Appellate Court has not assigned any reasons as to

the failure of justice due to error, omission and irregularity

in the charge including any misjoinder of charge. A

perusal of the framing of charge, I do not find any legal

infirmity/illegality. Even though there is any omission, it

will not vitiate the proceedings as contemplated under

Section 461 of Cr.P.C. The accused have not raised any

objection before the Trial Court or the Appellate Court that

the Trial Court has not properly framed the charges

against the accused. Therefore, the opinion expressed by

the Appellate Court regarding framing of charge is not in

- 11 -

NC: 2024:KHC:1096

consonance with the provisions of Sections 461 and 464 of

Cr.P.C. Hence, the same is not sustainable under law.

13. The another reason for remanding the matter to

the Trial Court from Appellate Court is that the Trial Court

has not properly recorded the statement under Section

313 of Cr.P.C. A perusal of the statement under Section

313 of Cr.P.C. recorded by the Trial Court, the Trial Court

has recorded the statement of the accused in one

statement and recorded the answer of the accused

separately. The accused have totally denied the entire

evidence of prosecution and no prejudice would be caused

to the accused in recording the statement under Section

313 of Cr.P.C and the Trial Court ought to have recorded

the statement under Section 313 of Cr.P.C. separately

instead of that it has recorded another statement under

Section 313 of Cr.P.C. However, recorded the answer of

the accused separately which is not illegal and it is purely

irregularity and also it will not vitiate the proceedings as

contemplated under Section 461 of Cr.P.C. This

- 12 -

NC: 2024:KHC:1096

irregularity in recording the statement under Section 313

of Cr.P.C. has not occasioned the failure of justice as

contemplated under Section 465(2) of Cr.P.C., 1973.

Therefore, the reasons assigned by the Trial Court is not

sustainable under law.

14. With regard to the merits of the case is

concerned, it is the case of the prosecution that PW.1 -

Ravikumar has questioned the accused as they were

grazing cattle in his land, the alleged incident took place.

To substantiate this, the prosecution has produced RTC

extracts pertaining to land bearing Survey.No.22/1 of

Yalenahalli village. This land is standing in the name of

Javaregowda, S/o.Kalegowda measuring 3 acres 30

guntas. In Ex.P1, it is stated that the complainant PW.1 -

Ravikumar has taken this land on lease basis from one

Shivalingegowda, S/o.Thathegowda is not examined

before the Court. The complainant Ravikumar is examined

as PW.1 (The name of Ravikumar is typed as

Ramuswamy). In this regard, the name of PW.1-

- 13 -

NC: 2024:KHC:1096

Ravikumar is also known as Ramuswamy S/o.

Y.N.Rangaswamy has deposed that he has taken the land

from Shivalingegowda, S/o. Thathegowda on lease basis

but the prosecution has not produced the said lease deed

before the Court. The investigating officer has not

explained anything in his evidence as to the non-

production of the said lease deed. The prosecution

witnesses including the investigating officer has not

explained anything as to how Ex.P5- Phani extract

pertaining to the land bearing Survey No.22/1 of

Yalenahalli village which is standing in the name of

Javaregowda S/o. Kalegowda is belongs to one

Shivalingegowda, S/o. Thathegowda. Accordingly, the

prosecution has failed to prove to show that the accused

cattle were grazing in the land of PW.1-Ravikumar.

15. With regard to the insult, wrongful restraint,

assault and criminal intimidation are concerned, it is the

case of prosecution as averred in the complaint at Ex.P1

that when PW.1-Ravikumar has questioned the accused as

- 14 -

NC: 2024:KHC:1096

to the grazing of cattle in his land, the accused picked up

quarrel and all the three accused caught hold him and

made him to fall down and then accused No.1-Bheeme

Gowda assaulted him with chopper below right knee and

left knee and caused bleeding injury. Accused No.2-

Raghavendra hit on the left shoulder and right forearm

with handle of spade ('UÀÄzÀÝ° PÁªÀÅ)' and caused bleeding

injuries and accused No.3 - Ningamma has caught hold of

his hair and dragged and gave punch all over the body.

Then, one Raju, S/o. Ningegowda and PW.2 -

Shivalingegowda, S/o. Jawaregowda intervened and

pacified the incident and then the accused gave life threat

and went away. Thereafter, PW.2-Shivalingegowda shifted

PW.1-Ravikumar to the hospital. The police have recorded

the statement of PW.1-Ravikumar reducing the statement

in writing as per Ex.P1-complaint and on that basis, the

police have registered the case in crime No.91/2008

against the accused persons for the commission of offence

punishable under Section 341,323,324,326,504 and 506

- 15 -

NC: 2024:KHC:1096

read with Section 34 of Indian Penal Code. Thereafter, the

police have visited the spot and conducted spot

panchanama as per Ex.P2. At the time of conducting spot

panchanama, police have recovered material objects i.e.

M.O.s. 1 and 2.

16. PW.2-Shivalingegowda, S/o.Javaregowda has

deposed in his evidence that on 17.08.2008 betweem 1.30

p.m. to 2.00 p.m., on his way back to the village from his

land, near land in Survey.No.22/1, PW.1-Ravikumar was

cultivating the land and the cattle belonging to the

accused were grazing in Survey.No.22/1. On questioning

the same, the accused caught hold him and made him to

fall down and then accused No.1-Bheeme Gowda assaulted

him with chopper below right knee and left knee and

caused bleeding injury. Accused No.2-Raghavendra hit on

the left shoulder and right forearm with handle of spade

('UÀÄzÀÝ° PÁªÀÅ') and caused bleeding injuries and accused No.3

- Ningamma has caught hold of his hair and dragged and

gave punch all over the body Then, one Raju, S/o.

- 16 -

NC: 2024:KHC:1096

Ningegowda and PW.2 - Shivalingegowda, S/o.

Jawaregowda intervened and pacified the incident.

17. PW.5 - Raju has also deposed the same in his

evidence.

18. PW.3- Shekar has deposed in his evidence as to

the mahazar conducted by the police as per Ex.P2.

19. Pw.7 - Dr. Mahesh has deposed as to the

treatment extended to injured and also issuance of wound

certificate as per Ex.P7.

20. PW.6- Shivakumar, PSI has deposed in his

evidence as to the investigation conducted by him.

21. In Ex.P1 - complaint, PW.1-Ravikumar has not

stated that the accused has assaulted him with backside of

the chopper. During the course of cross-examination of

PW.2-Shivalingegowda, has not stated that the accused

assaulted to PW.1-Ravikumar with the backside of the

chopper. He further stated that the accused gave 4-5 hits

- 17 -

NC: 2024:KHC:1096

to PW.1-Ravikumar and accused No.2 gave 5-6 hits with

handle of spade ('UÀÄzÀÝ° PÁªÀÅ)'.

22. PW.5- Raju has deposed that accused No.1-

Bheemegowda hit to PW.1-Ravikumar with back side of the

machete for 10 times, accused No.2 - Raghavendra hit to

PW.1 with handle of spade ('UÀÄzÀÝ° PÁªÀÅ)' for 10 times and

accused No.3- Ningamma hit to PW.1 with hands for 10-12

times.

23. PW.1 - Ravikumar was admitted to the hospital

with the history of assault dated 17.8.2008 at 2.00 p.m.

near Kabbinakere village, the injured Ramaswamy @

Ravikumar, S/o. Y.S. Rangaswamy brought by one

Shivalingegowda. On examination of the injured, PW.7 -

Dr. Mahesh has found the injuries as under:

1. Pain and tenderness over the right forearm.

2. pain and suffering over the left leg.

3.Abrasion and pain over the back.

- 18 -

NC: 2024:KHC:1096

The wound certificate reveals that received the report from

Higher Centre, Government Hospital, Channarayapatna on

dated 20.09.2008 No.667, X-ray done at C.R.P. vide x-ray

ref.No.210/2468:

1. pain and swelling over the right forearm.

2. pain and swelling left leg.

3. abrasion over back.

Thereafter, the doctor has opined that according to Higher

Centre opinion, the injury No.1 is grievous in nature and

injury Nos. 2 and 3 are simple in nature. This wound

certificate at Ex.P3 and the evidence of PW.7 - Dr. Mahesh

does not reveal the name of accused Nos.1 to 3 who have

assaulted PW.1-Ravikumar. PW.7 - Dr. Mahesh has

deposed nothing against these accused.

24. If really PW.1 was assaulted by accused Nos.1

to 3 as stated by the prosecution witnesses, PW.1-

Ravikumar would have revealed the name of accused

Nos.1to 3 and also weapons used for the commission of

- 19 -

NC: 2024:KHC:1096

alleged offence. On careful scrutiny of the medical

evidence with the evidence of PWs.1 to 3 that there is no

consistency in the wounds shown in the wound certificate

as per Ex.P3. If really the accused Nos.1 and 2 have

assaulted PW.1-Ravikumar for 8-10 times, he would have

sustained grievous injuries on his both shoulders, both

hands and below the knee. But he has sustained only

abrasion and also fracture of right forearm which will

create reasonable doubt as to the alleged incident.

25. It is admitted by the material prosecution

witnesses PWs.1 to 3 that there is civil dispute between

the accused and Thathegowda. Further, it is also admitted

fact that there is enmity between the accused and the

complainant prior to the alleged incident and in the cross-

examination of PW.2, he has clearly admitted that the

accused have filed the complaint against him and others

for the offence punishable under Section 307 of Indian

Penal Code and the same was registered in crime

No.5/2009 and during the course of cross-examination of

- 20 -

NC: 2024:KHC:1096

PW.5-Raju, he has clearly admitted that only after hearing

the sound of shouting, he went to the spot and at the time

of galata, 6-7 persons were present and he has not seen

as to the bleeding injuries caused to PW.1-Ravikumar.

This admission led by PW.5-Raju goes to show that he is

not eyewitness to the incident. The investigating officer

has treated him as eyewitness to the incident. The

prosecution has suppressed the case pending against

PW.2-Shivalingegowda and others in crime No.5/2009

pertaining to the alleged offence punishable under Section

307 of Indian Penal Code. The prosecution has also not

examined one Javaregowda, S/o. Kalegowda who is the

owner of the land bearing Survey.No.22/1 of Yalenahalli

village.

26. The evidence of prosecution witnesses reveals

that the material alleged eyewitnesses are interested

witnesses. Though the other independent witnesses are

available on spot, the investigating officer has not

examined them and also not assigned any reasons for

- 21 -

NC: 2024:KHC:1096

non-examination of independent witnesses. The entire

evidence of the prosecution witnesses will create

reasonable doubt as to the alleged incident as there is no

cogent, corroborative, clinching and trustworthy evidence

by both the Courts. The Trial Court has properly

appreciated the evidence on record and acquitted the

accused Nos.1 to 3. The Appellate Court has not properly

appreciated the evidence on record and only on the basis

of alleged irregularities, it has remanded the matter to the

Trial Court which is not sustainable under law.

27. On re-appreciation / re-examination /

re-consideration of the entire evidence on record, I do not

find any irregularity/illegality in the judgment of acquittal

passed by the Trial Court. Accordingly, the revision

petitioner has made out a case with regard to remanding

the case to the Trial Court by the Appellate Court is illegal

and not sustainable under law. Hence, I answer point

No.1 in affirmative.

- 22 -

NC: 2024:KHC:1096

Regarding point No.2:

28. For the aforesaid reasons and discussions, I

proceed to pass the following:

ORDER

i. Criminal revision petition is allowed.

ii. Judgment of acquittal dated 23.12.2015 passed in C.C.No.350/2013 by the Court of Senior Civil Judge, Channarayapatna is confirmed.

iii. Judgment dated 11.01.2016 passed in Crl.Appeal No.130/2016 by the Court of the 4th Addl. District and Sessions Judge, Hassan District (Sit at Channarayapatna) is set aside.

iv. Revision petitioner/accused Nos.1 to 3 are acquitted for the offence punishable under Section 341,323,324,326,504 and 506 read with Section 34 of Indian Penal Code.