Karnataka High Court
The State Of Karnataka vs Kurubara Mohan on 8 July, 2024
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CRL.A No. 100163 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 8TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO.100163 OF 2016 (A)
BETWEEN:
THE STATE OF KARNATAKA
REPRESENTED BY DEPUTY
SUPERINTENDENT OF POLICE,
BALLARI SUB-DIVISION,
THROUGH ADDL. STATE PUBLIC PROSECUTOR,
OFFICE OF THE ADVOCATE GENERAL,
HIGH COURT BUILDING, DHARWAD.
...APPELLANT
(BY SRI M.M. KHANNUR, AGA)
AND:
1. KURUBARA MOHAN
S/O. SRIKANTAPPA,
AGE: 39 YEARS, OCC: CONTRACTOR,
R/O: KUVEMPU NAGARA, BALLARI.
Digitally signed 2. KURUBARA LAKSHMANA
by VINAYAKA B V
Location: HIGH S/O. SRIKANTAPPA,
COURT OF AGE: 41 YEARS, OCC: LABOURER,
KARNATAKA R/O: BELAGALLU CROSS, CMC COLONY,
BALLARI.
3. KURUBARA VENKOBA
S/O. SHANMUKAPPA,
AGE: 48 YEARS, OCC: FARMER,
R/O: BANDIHATTI, BALLARI.
4. KURUBARA PAPANNA
S/O. SANGANABASAPPA,
AGE: 69 YEARS, OCC: FARMER,
R/O: BANDIHATTI, BALLARI.
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CRL.A No. 100163 of 2016
5. EDIGARA ERANNA
S/O. ERANNA,
AGE: 68 YEARS, OCC: FARMER,
R/O: BANDIHATTI, BALLARI.
6. AGASARA HUSSAINAPPA
S/O. DURUGAPPA,
AGE: 65 YEARS, OCC: LABOURER,
R/O: AGASARA STREET, COWL BAZAR,
BALLARI.
7. RIYAZ
S/O. S.K. SADIQ,
AGE: 30 YEARS, OCC: BUSINESS,
R/O: BEHIND, C.P.P.S.,
BALLARI.
...RESPONDENTS
(BY SRI MAHESH WODEYAR, ADVOCATE FOR R1-R3;
SRI MRUTYUNJAY S.HALLIKERI, AMICUS CURIAE)
THIS CRIMINAL APPEAL IS FILED UNDER SECION 378 (1)
& (3)OF CR.P.C., PRAYING TO GRANT LEAVE TO APPEAL AND
TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL
DATED 02.11.2015 PASSED BY THE I ADDITIONAL DISTRICT
AND SESSIONS AND SPECIAL JUDGE, BALLARI IN SPECIAL
CASE NO.29 OF 2003 BY ALLOWING THIS CRIMINAL APPEAL
AND ETC.,
THIS CRIMINAL APPEAL, COMING ON FOR HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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CRL.A No. 100163 of 2016
JUDGMENT
ORAL:-
The State has preferred this appeal against the judgment
and order of acquittal passed by the 1st Addl. Dist. & Sessions
Judge, Ballari (for short, 'Special Court') in Special Case
No.29/2013 dated 02.11.2015.
2. Parties are referred to as per their ranking before
the Special Court.
3. Brief relevant facts leading to file this appeal is that
the Ballari Rural Police submitted charge sheet against the
accused for the offences punishable under Sections 447, 149,
143, 147, 504, 506 of IPC and Section 3(1)(x) of the Scheduled
Caste and Scheduled Tribunal (Prevention of Atrocities) Act,
1989.
4. It is alleged that on 05.10.2012 at about 10:30 am
when CWs1 and 4 to 8 were putting stone fencing surrounding
to the land bearing TS No.1071 measuring 65 acres, at that
time, it is alleged that the accused Nos.1 to 7 unauthorisedly
trespassed into the said land and accused No.1 abused CW1 in
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filthy language by referring to his caste. When CW1 told
accused No.1 not to talk in abusive language and asked
accused No.1 to go to the Court and seek justice, the accused
Nos.1 to 7 abused CW1. When CW1 told the accused persons
that he would inform to the Police, at that time, the accused
went away by abusing CW1 in filthy language and gave life
threat. Further, it is alleged that though the accused were
knowing that the complainant belongs to the scheduled caste,
they had abused him by taking the name of his caste and
thereby committed alleged offences.
5. After filing chargesheet, the Special Court has taken
cognizance against the accused for the alleged commission of
offences and case was registered in S.C. No.29/2013. In
pursuance to issuance of summons, the accused persons
appeared before the Special Court through their counsel and
obtained bail. On hearing the parties, the Special Court framed
charges against the accused for the alleged commission of
offences, the same were read over and explained to them, the
accused having understood the same pleaded not guilty and
claimed to be tried. To prove the guilt of the accused, the
prosecution has examined 7 witnesses as PWs.1 to 7 and
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documents were marked as Exs.P.1 to P.6. On closure of
evidence, statement u/S 313 of Cr.P.C. was recorded. The
accused have totally denied the prosecution evidence but have
not chosen to lead any defence evidence.
6. Having heard arguments of both sides, the Special
Court passed impugned judgment of acquittal. Being aggrieved
by the same, the State has preferred this appeal.
7. Sri Madanmohan M. Khannur, learned Additional
Government Advocate would submit that the impugned
judgment and order of acquittal passed by the Special Court is
contrary to law, facts and evidence on record and hence the
same is not sustainable in the eye of law and the same is liable
to be set aside. He would further submit that the Special Court
acquitted the accused on the ground that there is no
corroboration to the evidence of PW1, but in fact there is a
corroborative evidence of independent witnesses PWs3 and 4
who have supported the case of the prosecution and also
deposed regarding the overt act of the accused. He would
submit that the evidence of all the witnesses have not been
properly read and appreciated by the Special Court and thereby
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committed error in acquitting the accused. Learned AGA would
submit that under Section 134 of the Evidence Act, the
evidence of single witness is sufficient to convict the accused
and as the evidence of PW1 is trustworthy, natural and it
inspires the confidence of the Court, the Special Court could
have appreciated the said evidence and convicted the accused.
Learned AGA further submits that the prosecution has proved
its case beyond reasonable doubt, but the Special Court without
proper appreciation of evidence has come to the conclusion that
the prosecution has failed to prove its case and acquitted the
accused. Thus, he prays to allow the appeal.
8. Per contra, learned counsel appearing for the
respondents-accused would submit that the Special Court has
properly appreciated the evidence in accordance with law, facts
and evidence and passed judgment of acquittal which needs no
interference and hence sought for dismissal of the appeal.
9. Having heard the arguments of both sides and on
perusal of appeal papers, the following points would arise for
consideration.
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1) Whether the judgment of acquittal passed by the
Speical Court requires interference?
2) What order?
10. My answer to the above points are as follows:
Point No.1 : In the negative
Point No.2 : As per final order for the following:
REASONS
11. Point No.1:- Before appreciating the evidence on
record, it is necessary to mention here the judgments of the
Hon'ble Supreme Court in the case as regards the power of
appellate court in the appeal arising out of the judgment of
acquittal, so also, the power of appellate Court for the offence
under Section 304-A of Indian Penal Code.
12. In the case of MOTIRAM PADU JOSHI & OTHERS v.
STATE OF MAHARASHTRA reported in 2018 SCC ONLINE SC
676, at paragraph 23 of the judgment, it is held thus:
"23. While considering the scope of power of the appellate
court in an appeal against the order of acquittal, after referring
to various judgments, in Chandrappa v. State of Karnataka
(2007) 4 SCC 415, this Court summarised the principle as
under:-
"42. From the above decisions, in our considered view,
the following general principles regarding powers of the
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appellate court while dealing with an appeal against an
order of acquittal emerge:
(1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon which
the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on exercise of such
power and an appellate court on the evidence before it
may reach its own conclusion, both on questions of fact
and of law.
(3) Various expressions, such as, "substantial and
compelling reasons", "good and sufficient grounds",
"very strong circumstances", "distorted conclusions",
"glaring mistakes", etc. are not intended to curtail
extensive powers of an appellate court in an appeal
against acquittal. Such phraseologies are more in the
nature of "flourishes of language" to emphasise the
reluctance of an appellate court to interfere with
acquittal than to curtail the power of the court to review
the evidence and to come to its own conclusion.
(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 law. Secondly, the
accused having secured his acquittal, the presumption of
his innocence is further reinforced, reaffirmed and
strengthened by the trial court.
(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."
13. In the case of MUNISHAMAPPA & OTHERS v. STATE
OF KARNATAKA & CONNECTED APPEALS reported in 2019 SCC
ONLINE 69, at paragraph 16 of the judgment it is held as
under:
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"16. The High Court in the present case was dealing with an
appeal against acquittal. In such a case, it is well settled that
the High Court will not interfere with an order of acquittal
merely because it opines that a different view is possible or
even preferable. The High Court, in other words, should not
interfere with an order of acquittal merely because two views
are possible. The interference of the High Court in such cases
is governed by well-established principles. According to these
principles, it is only where the appreciation of evidence by the
trial court is capricious or its conclusions are without evidence
that the High Court may reverse an order of acquittal. The
High Court may be justified in interfering where it finds that
the order of acquittal is not in accordance with law and that
the approach of the trial court has led to a miscarriage of
justice...."
14. In the case of HARI RAM & OTHERS v. STATE OF
RAJASTHAN reported in 2000 SCC ONLINE 933, at paragraph 4
of the judgment, it is observed thus:
"4. Mr. Sushil Kumar Jain, the learned Additional Advocate
General for the State of Rajasthan on the other hand
contended that the power of the High Court while hearing an
appeal against an order of acquittal is in no way different from
the power while hearing an appeal against conviction and the
Court, therefore was fully justified in re-appreciating the entire
evidence, upon which the order of acquittal was based. The
High Court having examined the reasons of the learned
Sessions Judge for discarding the testimony of PWs 6 & 7 and
having arrived at the conclusion, that those reasons are in the
realm of conjectures and there has been gross miscarriage of
justice and the misappreciation of the evidence on record is
the basis for acquittal, was fully entitled to set aside an order
of acquittal and no error can be said to have been committed.
It is too well settled that the power of the High Court, while
hearing an appeal against an acquittal is as wide and
comprehensive as in an appeal against a conviction and it had
full power to re- appreciate the entire evidence, but if two
views on the evidence are reasonably possible, one supporting
the acquittal and the other indicating conviction, then the High
Court would not be justified in interfering with the acquittal,
merely because it feels that it would sitting as a trial court,
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have taken the other view. While re- appreciating the
evidence, the rule of prudence requires that the High Court
should give proper weight and consideration to the views of
the learned trial Judge. But if the judgment of the Sessions
Judge was absolutely perverse, legally erroneous and based on
wrong appreciation of the evidence, then it would be just and
proper for the High Court to reverse the judgment of acquittal,
recorded by the Sessions Judge, as otherwise, there would be
gross miscarriage of justice...."
15. In the case of STATE OF RAJASTHAN v. KISTOORA
RAM reported in 2022 SCC ONLINE 684, at paragraph 8 of the
judgment it is held as under:
"8. The scope of interference in an appeal against acquittal is
very limited. Unless it is found that the view taken by the
Court is impossible or perverse, it is not permissible to
interfere with the finding of acquittal. Equally if two views are
possible, it is not permissible to set aside an order of acquittal,
merely because the Appellate Court finds the way of conviction
to be more probable. The interference would be warranted only
if the view taken is not possible at all."
16. In the case of MAHAVIR SINGH v. STATE OF
MADHYA PRADESH reported in (2016)10 SCC 220, at
paragraph 12 of the judgment, it is observed thus:
"12. In the criminal jurisprudence, an accused is presumed to
be innocent till he is convicted by a competent court after a
full-fledged trial, and once the trial court by cogent reasoning
acquits the accused, then the reaffirmation of his innocence
places more burden on the appellate court while dealing with
the appeal. No doubt, it is settled law that there are no fetters
on the power of the appellate court to review, reappreciate and
reconsider the evidence both on facts and law upon which the
order of acquittal is passed. But the court has to be very
cautious in interfering with an appeal unless there are
compelling and substantial grounds to interfere with the order
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of acquittal. The appellate court while passing an order has to
give clear reasoning for such a conclusion."
17. Now, let me advert to the facts of the case, so also
the judgment of the Special Court. It is the case of the
prosecution that on 05.10.2012 at about 10:30 am when CWs1
and 4 to 8 were stone fencing surrounding to the land bearing
TS No.1071 measuring 65 acres, at that time, it is alleged that
the accused Nos.1 to 7 unauthorisedly trespassed into the said
land and accused No.1 abused CW1 in filthy language by
referring to his caste. When CW1 told accused No.1 not to talk
in abusive language and asked accused No.1 to go to the Court
and seek justice, the accused Nos.1 to 7 abused CW1. When
CW1 told them that he would inform to the Police, at that time,
it is alleged that the accused went away abusing him in filthy
language and gave threat to his life. Further, it is alleged that
though the accused were knowing that the complainant belongs
to scheduled caste, the accused had abused him by taking the
name of his caste and thereby committed alleged offences.
After filing chargesheet, the Special Court has taken cognizance
against the accused for the alleged commission of offences and
case was registered in S.C. No.29/2013. In pursuance to
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issuance of summons, the accused persons appeared before
the Special Court through their counsel and obtained bail. On
hearing the parties, the Special Court has framed charges for
the alleged commission of offence, same were read over and
explained to the accused, the accused having understood the
same pleaded not guilty and claimed to be tried. To prove the
case of the prosecution, 7 witnesses were examined as PWs.1
to 7 and 6 documents were marked as Exs.P.1 to P.6.
18. As could be seen from the chargesheet that there
are 12 witnesses. Out of them, PW1 is the complainant, PW2
and PW3 have attested to the spot panchanama who are the
eyewitnesses to this incident. CW5-Gopal Reddy, CW7-
T.Govardanagiri and CW8-Honnurappa are also eyewitnesses to
the alleged incident. CW5, CW7 and CW10 are given up by the
prosecution and CW8 is not examined by the prosecution.
CWs11 and 12 who are Police Officers have deposed as to their
respective investigation. The material evidence are Exs.P1, 3
and 4.
19. PW1 who is the complainant has deposed in his
evidence that since 15 years he is working as a Manager in the
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estate of Prathap Reddy. He further deposed that CW4 is the
watchman of TS Nos.1069, 1070 and 1071 totally measuring
134 acres of Bandihatti Village and he says that he belongs to
Madiga Community and he has further stated that the accused
were telling that the property bearing TS No.1073 measuring
4.9 acres was belonging to them and they were doing galata
and he says that there is no property bearing TS No.1073 and
it had been cancelled. He further stated that on 05.10.2012 at
about 10:00 am, when himself and CWs.1 to 8 were stone
fencing over the surroundings of the land, at that time, the
accused No.1-Mohan came there and abused him by referring
the name of his caste. He says that, at that time, he told them
it was not proper to talk like that and you should go to court,
for that, the accused No.1-Mohan abused CW1 and his owner
and gave threat to his life. Thereafter, he says that when he
took out the phone to inform the same to the Police, the
accused went away. Thereafter, he says that on the next day,
he went to the Police station and filed complaint as per Ex.P1.
Next day Police came to the spot and conducted Mahazar.
20. PW2-Shivappa has stated as to the Mahazar
conducted by the Police as per Ex.P2.
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21. PW3-Mallappa said to be eyewitness has deposed
that on 05.10.2012 at about 10:30 am when he along with
complainant and CWs5 to 8 were in the said land, at that time,
the accused came there and told that they had spoiled the land
and the accused No.1 abused the complainant and when the
complainant took out his phone to inform the same to the
Police, the accused gave threat and went away.
22. PW4-H.R.Shivashankar said to be eyewitness to the
incident has deposed that on 05.10.2012 at about 10:30 am
while they were stone fencing over the surroundings of the land
bearing Sy.No.1070, the accused came there and told them not
to put stones by abusing the complainant in filthy language by
taking the name of the complainant's caste and when the
complainant took out the phone to inform the same to the
Police, the accused abused the complainant and his owner and
gave life threat and went away.
23. PW5-B.Gonibasappa has deposed as to submitting
FIR to the Court as per Ex.P4.
24. PWs6 and 7 are the Investigating Officers who have
deposed as per their respective investigation.
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25. To prove the guilt of the accused under Sections
143, 147 read with 149 of IPC, the complainant and the other
eyewitnesses have not deposed as to the unlawful assemble
constituted by the accused at the relevant point of time. Thus,
the prosecution has failed to prove the guilt of the accused for
the offences punishable under Sections 143, 147 read with 149
of IPC.
26. Insofar as the offence punishable under Section 447
is concerned, it is the case of the prosecution that the accused
have trespassed the land bearing TS. No.1071 measuring 65
acres belonging to Prathap Reddy. To prove the offence
punishable under Section 447 of the IPC, the prosecution has to
prove following ingredients:
"447. Punishment for criminal trespass._
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
1. Proof._ (1) That the complainant was in possession of
the land in dispute with respect to which criminal trespass
is said to have been committed.
(2) That the accused unlawfully entered into or upon the
property in question or having lawfully entered into such
property unlawfully remained there.
(3) That he unlawfully entered there, or lawfully entering
unlawfully remained there with intent either (a) to commit
an offence or (b) to intimidate, insult or annoy the person
in possession.
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The main ingredient of sec. 447 is that the trespass
must be with the intention of annoying or insulting some
one, or must be with the intention of committing an
offence."
27. The prosecution has not produced any documents
to show that the land bearing TS. No.1071 measuring 65 acres
at Bandihatti Village belonging to one Prathap Reddy as stated
by PW1. The IO has not whispered anything as to the material
piece of evidence with regard to the disputed land. Even
Prathap Reddy, said to be the owner of the land, is not
examined by the IO. Even the IO has not sighted him as
witness in the chargesheet. IO has not recorded the statement
of this owner. Even before this Court also the IO has not
whispered anything as to non-examination of the material
evidence i.e. the owner of the land Prathap Reddy. On the
contrary, the IO during the cross-examination of PW1 has
clearly admitted that there is dispute between Prathap Reddy
and the accused and several cases were pending between them
regarding this land. IO has also admitted that the accused have
filed a case against the Prathap Reddy in CC No.246/2012, but
the IO has suppressed the facts as to the registration of the
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case in CC No.246/2012 which pertains to the galata and
mechanically submitted the chargesheet against the accused.
28. When the prosecution has failed to prove the
essential ingredients of Section 447 of the IPC, the question of
trespassing into the land of the disputed land by the accused
does not arise.
29. Insofar as the offences punishable under Sections
504 and 506 of IPC are concerned, the prosecution has failed to
prove the following essential ingredients of Sections 504 and
506:
"504. Intentional insult with intent to provoke breach of
the
peace._xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
1. Proof._ The prosecution is to prove the following:
(1) that the accused insulate some person;
(2) that he did so intentionally;
(3) that the accused thereby gave provocation to the
person insulted;
(4) that the accused thereby intended or knew at that
time that it was likely that such provocation would
cause that person to break the public peace or to
commit any other offence."
"506. Punishment for criminal intimidation._
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
1. Proof._ Section 506 provides punishment for
criminal intimidation. As the act complained of must come
within the purview of sec. 503 which defines 'criminal
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intimidation', the prosecution, in order to bring home the
guilt of the accused under sec. 506, must prove the
following:
(1) that the accused threatened some person;
(2) that such threat consisted of some injury:
(i) to his person, reputation or property, or
(ii) to the person or reputation of any one in whom
the person threatened was interested;
(3) that the threat must be with intent:
(i) to cause alarm to that person, or
(ii) to cause that person to do any act which he is
not legally bound to do or omit to do any act which he
was legally entitled to do, as a means of avoiding the
execution of such threats."
30. Prosecution has failed to prove the above
ingredients. Accordingly, the prosecution has failed to prove the
guilt of the accused under Section Sections 504 and 506 of IPC.
31. With regard to the offence punishable under Section
3(1)(x) of the SC/SC Act, the prosecution has to prove the
following acts:
"intentionally insults or intimidates with intent
to humiliate a member of a Scheduled Caste or a
Scheduled Tribe in any place within public view"
32. In the case on hand, during the course of cross-
examination, eyewitnesses have clearly deposed that they have
not given any statement to the Police. For the first time, before
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the Court they have stated that accused have abused PW1 by
referring his caste.
33. PW3-Mallappa has not deposed anything as to the
abusive words used by the accused as to referring the name of
the caste of PW1. Ex.P1-Complaint does not indicate the
presence of PWs3 and 4. If really PWs3 and 4 were present at
the time of the alleged incident, PW1-complainant would have
mentioned the names of PWs3 and 4, but have not done so.
34. During the course of evidence of PW7, he stated
that he has recorded the statements of PWs3 and 4 on
18.10.2012. The IO has not whispered anything as to delay in
recording the statement of alleged eyewitnesses PWs3 and 4.
After lapse of 13 days from the date of filing complaint, IO has
recorded the statements of PWs3 and 4. Even after recording
the statements, he has not submitted the same to the Court.
Only at the time of filing chargesheet, the IO has submitted the
statements before the Court on 28.03.2013. Hence, the
presence of PWs3 and 4 itself create doubt that whether they
were present as on the date of the alleged incident. Therefore,
the evidence of PWs3 and 4 cannot be accepted. Hence, in the
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absence of independent witnesses, the sole interest testimony
of PW1 is not sufficient to come to the conclusion that the
accused have committed the offence punishable under Section
3(1)(x) of the SC/SC Act.
35. Accordingly, the prosecution has failed to prove the
guilt of the accused. The Special Court has properly appreciated
the evidence on record in accordance with law and facts.
36. On re-appreciation, reconsideration and
re-examination of the entire evidence placed on record and
keeping in mind the aforesaid decisions, I do not find any error
or legal infirmity committed by the Special Court. Hence, I
answer the Point No.1 in the negative.
37. Point No.2:- For the aforesaid reasons and
discussions, I proceed to pass the following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
