Karnataka High Court
State Of Karnataka vs Subray S/O Nagapati Bhat on 29 May, 2024
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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CRL.A No. 100359 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 29TH DAY OF MAY, 2024
PRESENT
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
AND
THE HON'BLE MR JUSTICE T. G. SHIVASHANKARE GOWDA
CRIMINAL APPEAL NO.100359 OF 2019 (A)
BETWEEN:
STATE OF KARNATAKA
REPRESENTED BY THE
POLICE SUB-INISPECTOR,
BANAVASI POLICE STATION,
UTTARA KANANDA DISTRICT,
THROUGH THE
ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...APPELLANT
Digitally signed (BY SRI.ASHOK T.KATTIMANI, ADDL.GOVERNMENT ADVOCATE)
by BHARATHI H
M
Location: HIGH
COURT OF
KARNATAKA
DHARWAD
BENCH AND:
Date: 2024.06.03
15:08:00 +0530
1. SUBRAY
S/O. NAGAPATI BHAT
AGE: 66 YEARS, R/O: SUGAVI, SIRSI,
DIST: UTTARA KANNADA-581318.
2. SHRI. KRISHNA
S/O. NAGAPATI BHAT
AGE: 62 YEARS, R/O: SUGAVI, SIRSI,
DIST: UTTARA KANNADA-581318.
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CRL.A No. 100359 of 2019
3. ANANTH
S/O. NAGAPATI BHAT
AGE: 55 YEARS, R/O: SUGAVI, SIRSI,
DIST: UTTARA KANNADA-581318.
...RESPONDENTS
(BY SRI.R.G.HEGDE, ADVOCATE FOR R1;
SRI.A.M.GUNDAWADE, ADVOCATE FOR R2;
SRI.MRUTYUNJAYA TATA BANGI, ADVOCATE FOR R3)
THIS CRIMINAL APPEAL IS FILED U/S 378(1) AND (3) OF
CR.P.C. SEEKING TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 02/05/2019
PASSED BY THE I ADDL. DISTRICT AND SESSIONS JUDGE,
U.K. KARWAR, SITTING AT SIRSI IN SESSIONS CASE
NO.5014/2016 AND TO SET ASIDE THE JUDGMENT AND ORDER
OF ACQUITTAL DATED 02/05/2019 PASSED BY THE I ADDL.
DISTRICT AND SESSIONS JUDGE, U.K.KARWAR, SITTING AT
SIRSI IN SESSIONS CASE NO.5014/2016 AND CONVICT AND
SENTENCE THE RESPONDENTS/ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTION 341, 504, 323, 324, 307, 506
R/W SECTION 34 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING, THIS
DAY, MOHAMMAD NAWAZ, J., DELIVERED THE FOLLOWING:
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CRL.A No. 100359 of 2019
JUDGMENT
The State has preferred this appeal feeling aggrieved
by the judgment and order of acquittal passed by the trial
court, wherein respondents/accused Nos.1 to 3 are
acquitted of the charged offences punishable under
Sections 341, 504, 323, 324, 307, 506 r/w Section 34 of
IPC.
2. We have heard the learned HCGP appearing for the
State and learned counsel appearing for respondent Nos.1
to 3 and perused the evidence and material on record.
3. In brief, the case of the prosecution is that on
22.12.2014 at 4.15 p.m., accused Nos.1 to 3 in
furtherance of their common intention, wrongfully
restrained CW1-Ramachandra(PW1) in front of his house
in connection with the property dispute, abused him in
filthy language questioning him as to why he is demanding
share in the property of his aunt. Accused No.1 throttled
him with an intention to take away his life while accused
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No.2 assaulted him with club and accused No.3 assaulted
with hands and thereby committed the charged offences.
4. It is contended by the learned HCGP that PW-1 being
a injured witness has supported the case of the
prosecution and his evidence is corroborated by the
independent witnesses namely PW-2 to PW-4 as well as
the medical evidence of the doctor, PW-5. He therefore
contended that the trial Court was not proper in acquitting
the accused persons in spite of cogent and sufficient
evidence adduced by the prosecution. It is his contention
that minor discrepancies appeared in the prosecution
witnesses are not sufficient to discard their evidence and
therefore, sought to allow the appeal by setting aside the
impugned judgment and order of acquittal passed by the
trial Court and convict the respondent/accused Nos.1 to 3
for the charged offences.
5. Per contra, learned counsel appearing for the
respondents have contended that there is material
discrepancy in the evidence of prosecution witnesses and
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the witnesses have admitted the existing civil dispute
between them and considering the entire evidence and
material on record, the trial Court has rightly acquitted the
accused of the charged offences. He has contended that
this being an appeal against an order of acquittal, the view
taken by the trial Court being a plausible view, has to be
accepted and there are no grounds to interfere with the
judgment of acquittal passed by the trial Court.
Accordingly, sought for dismissal of the appeal.
6. In this case, the victim is examined as PW-1.
According to the prosecution, the incident took place on
22.12.2014 at about 4.15 p.m. PW-1 has deposed that
there is a property dispute between himself and accused
persons regarding 10 guntas of open space and a case is
pending before the High Court. He has further deposed
that the said property belongs to him, but the accused
have obtained ad-interim injunction in their favaour and
they were quarreling to relinquish the property in their
favour. On the date of incident, he was returning to his
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house by walk from the house of one Raghavendra Gopal
Bhat and when he reached near the house of accused
No.1, the said accused wrongly restrained him, abused in
filthy language and held his neck. Accused Nos.2 and 3
also came and held his neck. Accused No.2 assaulted with
a club on his back and the left shoulder and accused No.3
assaulted with hands. He has deposed that accused No.1
held his neck tightly and when he shouted for help, CW-4
and CW-5 and Raghavendra Bhat came and rescued him.
Thereafter, accused Nos.1 to 3 went away threatening him
with dire consequences. He was then shifted to
Government Hospital, Sirsi, for treatment wherein his
complaint was received by the Police.
7. CW-4 and CW-5 are examined as PW-7 and PW-2
respectively. PW-7 has deposed that he was informed
about the incident by CW-8 and immediately he went near
the house of the accused and saw accused Nos.1 to 3
trying to throttle PW-1. He has deposed that accused
No.2 was assaulting PW-1 with a club and accused No.3
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with hands. He took PW-1 to the Government Hospital,
Sirsi. He is a panch witness to Ex.P-4, spot mahazar
under which M.O.1, club was seized.
8. PW-2 has deposed that he was informed about the
quarrel by CW-8 and therefore, he went to the spot and
saw accused No.1 was pressing the neck of PW-1 and
accused Nos.2 and 3 assaulting him with club and hands.
He has stated that he along with CW-4 rescued PW-1.
9. As per PW-2, initially PW-1 was shifted to Primary
Health Center, Sugavi and since no doctor was present,
they shifted PW-1 to Sirsi Government Hospital.
10. PW-3 and PW-4 are the other witnesses examined by
the prosecution to speak about the incident. In his chief-
examination, PW-3 has stated that upon hearing the
quarrel, he along with CW-6, 9 and 11 went to the spot
and saw accused No.1 trying to throttle PW-1 and accused
Nos.2 and 3 assaulting with club and hands. Thereafter,
he intervened and pacified the quarrel. Insofar as PW-4 is
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concerned, his evidence would reveal that by the time he
went to the spot, the entire incident was over. Therefore
it cannot be said that he is an eyewitness to the incident
as projected by the prosecution.
11. PW-5 is the Medical Officer who has examined PW-1
on 22.12.2014 at about 6.00 p.m. He has stated that on
examination of PW-1, he noticed certain injuries and
issued the wound certificate marked as Ex.P-2. He has
stated that he noticed linear abrasion and bruise on the
neck of PW-1 as well as tenderness over the chest. He
has stated that injury Nos.1 to 4 may be caused if a
person is strangulated with hands and injury No.5 may be
caused if a person is assaulted with a club like MO.1,
shown to him.
12. The defence taken by the accused is that on the
same day i.e. on 22.12.2014, PW-1 and ten others
assaulted the accused persons and their another brother
by name Ramachandra Bhat and PW-1 sustained injuries
on account of a fall from the motorcycle, but in view of the
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civil dispute, he filed a false case against the accused
persons.
13. PW-1 in his cross-examination has admitted that a
complaint was lodged against him and others in respect of
an incident of assault which took place on 22.12.2014 i.e.,
on the very same day of the alleged incident and admitted
of a case pending before the Court of JMFC in
C.C.No.106/2017.
14. It is contended by the learned counsel appearing for
the accused that the said incident wherein PW-1 and ten
others assaulted accused No.1 and others was prior to the
incident alleged to have taken place and by which time,
the accused had gone to the police station to lodge the
complaint.
15. In the instant case, the prosecution is relying on the
evidences of PWs-1 to 4 and 7 and the medical evidence of
PW-5. As per the wound certificate issued by PW-5, which
is marked as Ex.P-2, PW-1 has sustained certain injuries
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on his neck and tenderness over the chest. The question
is as to whether the evidence of PW-1 and other witnesses
would inspire the confidence of the Court in view of the
existing civil dispute? The accused have taken a specific
defence that on the same day i.e., on 22.12.2014, PW-1
and others have assaulted them and their another brother
by name Raghavendra Bhat. It is admitted that against
PW-1 and others a case was registered which is pending in
C.C.No.106/2017 before the Court of JMFC. PW-1 has
admitted that there is a civil dispute existing in respect of
10 guntas of vacant space. In the cross-examination, he
has admitted about the pendency of civil cases in
O.S.No.67/2002 and O.S.No.53/2002 wherein, there was
an order of temporary injunction passed against him.
16. PW-2 in the cross-examination has admitted that the
accused have filed a suit against his father and in the
appeal, he has come on record as a legal representative.
His evidence shows that there is a civil dispute between
himself and accused persons. He has admitted that in the
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complaint lodged in respect of an incident which took place
on 22.12.2014 he is an accused, wherein it is alleged that
all of them have trespassed into the house of the accused
and assaulted them etc.
17. PW-3 in his cross-examination has admitted that,
there is a Court order passed in favour of the accused,
with regard to the civil dispute pending between the
complainant and the accused. He has also admitted about
the conviction order passed in respect of an incident,
wherein, his father and others were involved in attempting
to commit the murder of the brother of the accused by
name Ramachandra.
18. PW-4, though projected as an eyewitness, has
admitted in the cross-examination that the accused have
not held CW-1 or assaulted him, after he visited the spot.
He has admitted that he has not given any statement with
regard to incident which took place on 22.12.2014. The
portions of the said statements are marked as Exs.D-3 and
D-4.
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19. PW-7 in his cross-examination has admitted that he
has not stated before the Police about the incident which
took place on 23.12.2014. The portion of the statement is
marked as Ex.D-5.
20. Admittedly, the incident has taken place in front of
the house of the accused. The specific defence taken by
the accused is that on the same day, PW-1 and ten others
came near their house and trespassed into their house and
assaulted them etc. It is borne out from the record that
the witnesses have admitted regarding filing of a criminal
case against PW-1 and others in respect of an incident
which took place on the same day. The material on record
further reveal that there is a property dispute between the
accused persons and PW-1 and the said dispute is existing
since 2002. PW-1 has also admitted regarding his
conviction in criminal case in S.C. No.14/1991, which was
initiated by the brother of accused No.1 by name
Ramachandra Bhat. PW-1 to PW-4, PW-6 and PW-7 have
admitted regarding civil dispute between the accused and
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the villagers of Sugavi village regarding usage of public
road, wherein the accused have filed a suit and obtained
injunction order. Considering these aspects, the trial
Court has held that since many years the relationship
between the accused persons and PW-1 to PW-4, PW-6
and PW-7 are strained and therefore, they are interested
in the prosecution. Therefore, without corroboration from
any other independent witnesses, their evidence cannot be
believed. The said findings recorded by the trial Court
cannot be held to be perverse. This being an appeal
against the judgment and order of acquittal, we find no
convincing material to interfere with the same. Hence, the
appeal is dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
HMB- Upto para 3
NAA
