Karnataka High Court
Sundresha vs Shivashankara on 22 October, 2024
Author: V Srishananda
Bench: V Srishananda
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CRL.RP No. 279 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO.279 OF 2024
BETWEEN:
SUNDRESHA
S/O. BOMMARAYIGOWDA
AGED ABOUT 46 YEARS
R/AT HIRALAHALLI VILLAGE
SHEELANERE HOBLI
K.R. PETE TALUK
MANDYA DISTRICT- 571 426.
...PETITIONER
(BY SRI SWAROOP T., ADVOCATE)
AND:
1. SHIVASHANKARA
S/O. KARIGOWDA
AGED ABOUT 66 YEARS
R/O. HIRALAHALLI VILLAGE
SHEELANERE HOBLI
Digitally signed K.R. PETE TALUK
by MALATESH MANDYA DISTRICT- 571 426.
KC
Location:
HIGH COURT 2. MANJU
OF S/O. SHIVASHANKARA
KARNATAKA
AGED ABOUT 38 YEARS
R/O. HIRALAHALLI VILLAGE
SHEELANERE HOBLI
K.R. PETE TALUK
MANDYA DISTRICT-571 426.
3. NAGESHA
S/O. RAMEGOWDA
AGED ABOUT 49 YEARS
R/O. HIRALAHALLI VILLAGE
SHEELANERE HOBLI
K.R. PETE TALUK
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CRL.RP No. 279 of 2024
MANDYA DISTRICT- 571 426.
4. SMT. PADMA
W/O. JAYARAMU
AGED ABOUT 43 YEARS
R/O. HIRALAHALLI VILLAGE
SHEELANERE HOBLI
K.R. PETE TALUK
MANDYA DISTRICT- 571 426.
5. STATE BY K.R. PETE TOWN POLICE STATION
K.R. PETE TOWN
MANDYA DISTRICT-571 426.
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU-01.
...RESPONDENTS
(BY SRI VINAY MAHADEVAIAH, H.C.G.P. FOR R-5;
R-1 TO R-4 ABSENT)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE ORDER
OF DISMISSAL DATED 04.11.2023 PASSED BY THE HON'BLE III
ADDITIONAL DISTRICT AND SESSIONS JUDGE, MANDYA (SITTING
AT SRIRANGAPATNA) PASSED IN CRL.A.NO.5035/2021 PRODUCED
AT ANNEXURE-A AND TO SET ASIDE THE ORDER OF ACQUITTAL
PASSED BY THE HON'BLE CIVIL JUDGE AND JMFC,
KRISHNARAJAPETE, PASSED IN C.C.NO.336/2010 DATED
28.07.2021, PRODUCED AT ANNEXURE-B AND CONSEQUENTLY, TO
CONVICT THE ACCUSED NO.1 TO 4 (RESPONDENT NO.1 TO 4) FOR
THE OFFENCE PUNISHABLE UNDER SECTIONS 323, 324, 504 AND
506 R/W 34 OF IPC AND SENTENCE THEM WITH MAXIMUM
PUNISHMENT AND ETC.
THIS CRIMINAL REVISION PETITION, COMING ON FOR
ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
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CRL.RP No. 279 of 2024
ORAL ORDER
Heard Sri. Swaroop T., learned counsel for the revision
petitioner and learned HCGP for respondent No.5-State.
Respondents No.1 to 4 remained absent though served with the
notice of the revision.
Defacto complainant, in Cr.No.39/2010 of K.R. Pete Town
police has preferred this revision petition challenging the order
of acquittal recorded in C.C.No.336/2010 confirmed in
Crl.A.No.5035/2021.
3. Brief facts which are utmost necessary for disposal of
the revision petition are as under:
A complaint came to be lodged by the revision petitioner
with K.R. Pete police station contending that on 25.02.2010 at
about 5.30 p.m. at Hiralahalli village, when the charge sheet
witnesses No.2 to 4 were returning from their agricultural
activities, accused No.1 to 4 in furtherance of their common
intention, on account of the previous enmity nurtured by them
started abusing C.W.Nos.2 to 4 in filthy language and picked up
quarrel and accused No.1 suddenly assaulted C.W.2 on his
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head and back with a stone causing pain to C.W.2. Accused
No.2 joined accused No.1 in assaulting C.W.2 on his back and
chest with a stone. Accused No.3 attacked C.W.3 with the same
stone and accused No.4 pulled the hair of C.W.4. Thereafter,
the shirt worn by C.W.2 was also torn and they criminally
intimidated C.W.2 with dire consequences.
4. Based on the said complaint, K.R. Pete Police
registered the case in Cr.No.39/2010 and after thorough
investigation, filed the charge sheet against respondent Nos.2-
4-accused persons for the offences punishable under Sections
323, 324, 504, 506 r/w 34 IPC.
5. Presence of the accused persons were secured after
taking cognizance and charges were framed. The accused
pleaded not guilty and therefore, the trial was held.
6. In order to prove the case of the prosecution, the
prosecution in all examined ten witnesses as PW.1 to PW.10
and placed on record five documents which are exhibited and
marked as Exs.P1 to P5 comprising of complaint, spot mahazar,
wound certificate and FIR.
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7. On conclusion of recording of evidence of the
prosecution, accused's statement as is contemplated under
Section 313 of the Code of Criminal Procedure, 1973, was
recorded, wherein all the incriminating materials were denied
by accused. Thereafter, one Puttaraju is examined as DW.1 on
behalf of the accused.
8. Thereafter, the learned trial Magistrate after hearing
the arguments of the parties, recorded an order of acquittal by
judgment dated 28.07.2021.
9. State did not choose to challenge the order of acquittal
recorded by learned trial Magistrate. However, the defacto
complainant exercised his right under Section 372 Cr.P.C. and
filed an appeal.
10. Accused were notified in the said appeal and the
learned Judge of the First Appellate Court after securing the
records, hearing the learned counsel for defacto complainant
and counsel for the accused, by judgment dated 04.11.2023
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dismissed the appeal of the defacto complainant inter-alia
holding in paragraphs 41 to 47 as under:-
41. PW-6 and PW-7 are not independent
witnesses to the alleged overt-act of the accused.
Therefore, they are not the right persons to say as to
which accused used which weapon out of club and
stone. Merely because of the fact that, MO-1 and 2
are seized at the spot, it does not mean to say that,
these material objects are used by the accused to
assault PW-1, PW-2 and PW-4. The fact that,
material objects like MO-1 and MO-2 are available
every where is cannot be disputed. In fact, PW-6 has
deposed that, at the time of drawing mahazar, 10-15
people were present, but any one of them are not
cited as panch witness to Ex.P-2 mahazar.
Admittedly, PW-6 and PW-7 are close relatives of
PW-1 to PW-4 and hence, much credence cannot be
attached to their testimony. The contents of Ex.P-2
would show that, PW-10 had drawn mahazar in the
field of PW-1, whereas PW-6 says mahazar was
drawn in the field of accused No.1. Therefore, the
evidence of PW-6 would show that, he was not at all
present at the spot.
42. It is the evidence of PW-6 that, MO-3 shirt
was stained with blood, but as per the evidence of
the Medical officer, Bommarayigowda did not sustain
any bleeding injury. Thus, the evidence of PW-6 that,
MO-3 was stained with blood, but nothing
improvement was made by him.
43. Another panch by name Nanjegowda is
examined as PW-7 and he has deposed that, the
Police have drawn mahazar and seized MO-1 to MO-3
in his presence, but he has deposed that, he does
not know the contents of Ex.P-2 mahazar. This PW-7
being the father-in-law of PW-3 has deposed that,
after the quarrel PW-1 called PW-3 from Bengaluru
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and he came and lodged the complaint. Thus, this
evidence of PW-7 totally supports the contention of
the accused that PW-3 was not at all present at the
spot on the alleged date of incident. If this evidence
of PW-7 is taken into consideration, the other
evidence of PW-1 to PW-4 with regard to PW-3
witnessing the incident, taking PW-1 to K.R.Pete
hospital and then to K.R.Hospital at Mysuru, is
cannot be believed at all. Thus, the evidence of PW-7
is of no assistance to the prosecution to prove the
drawing up of Ex.P-2 mahazar and seizure of MO-1
to MO-4.
44. It is the evidence of PW-8 that, on
examination of Bommarayigowda, she found one
abrasions over nose, right side of the back and right
leg. Absolutely, no contusion or bleeding injuries
were found on the person of Bommarayigowda and
therefore, the evidence of PW-1 to PW-4 that,
accused No.1 has assaulted by a club on the head
and accused No.2 has assaulted on the chest and
back of PW-1 with MO-2 stone is cannot be accepted
at all. Further more, PW-2 and PW-4 have not
obtained any treatment. Further, if really accused
No.2 had assaulted by a stick like MO-1, PW-2 ought
to have sustained atleast contusion on his body, but
according to him he did not sustain any injury.
Therefore, in the given circumstance of the case, this
Court is of the opinion that, the evidence of PW-1 to
4 is nothing but a pigment of imagination.
45. The evidence of PW-9 and PW-10 would
show that, they have conducted investigation and
filed the charge sheet. In fact, PW-10 who had drawn
Ex.P-2 has deposed that, at the time of mahazar,
except panchas and complainant, nobody were
present at the spot, but PW-6 says that there were
as many as 10-15 persons of Hiremaralli Village. If
really PW-10 had drawn mahazar, he could have
called upon any one of the Villager of Hiremaralli
Village to witness the same. This observation is made
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because, PW-6 and PW-7 are close relatives of PW-1
to PW-4.
46. Further more, according to PW-9 he did not
receive any Medico Legal Intimation from the
hospital at K.R.Pete. If really PW-1 had taken
treatment at K.R.Pete Hospital, PW-8 ought to have
sent the MLC intimation to the S.H.O of K.R.Pete
Police Station.
47. From the evidence placed on record, it is
proved that, there is civil dispute between the
accused and PW-1 to PW-4. Further more, accused
Nos. 1 and 2 have already been convicted for the
offence punishable under Section 307 of IPC on the
allegation that, they have made an attempt to kill
the son of accused No.1. In this case the inordinate
delay in transmitting F.I.R. has not been explained
and the explanation given by PW-3 is not
satisfactory.
11. Being aggrieved by the same, the defacto
complainant is before this Court in this revision petition.
12. Sri. Swaroop T., learned counsel for the revision
petitioner reiterating the grounds in the revision petition
vehemently contended that both the Courts have not properly
appreciated the material evidence on record and the learned
trial Magistrate has placed undue weightage on the oral
evidence of DW.1-Puttaraju resulting in miscarriage of justice
and sought for admitting the revision for further consideration.
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13. Learned High Court Government Pleader submits that
the State after considering the material on record did not
choose to file any revision or appeal against the order passed
by the learned trial Magistrate and sought for passing
appropriate orders.
14. Respondent Nos.1 to 4, who are accused before the
trial Court though served with notice of the revision petition did
not choose to contest this revision.
15. In the light of the arguments put forth on behalf of
the revision petitioner, this Court perused the material on
record meticulously.
16. On such perusal of the material on record, it is crystal
clear that in the complaint itself, the complainant has alleged
that there was previous enmity.
17. Learned trial Magistrate, if not in so many words has
come to the right conclusion that the material evidence on
record was not sufficient to record an order of conviction
against the accused persons. Learned Judge in the first
appellate Court as referred to supra has dealt with the evidence
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of the prosecution witnesses in detail while re-appreciating the
material on record.
18. It is settled principles of law and requires no
emphasis that an order of acquittal passed by duly constituted
competent court would act as a double innocence insofar as
accused are concerned. Since the appeal of the defacto
complainant is also dismissed, in the case on hand, the accused
are now having the benefit of triple innocence.
19. Following the dictum of the Hon'ble Apex Court in the
case of AMIT KAPOOR v. RAMESH CHANDER AND
ANOTHER reported in (2012) 9 SCC 460, this Court does not
find any patent factual error in the impugned judgment nor
error of exercise of jurisdiction so as to admit the revision
petition for further consideration.
20. Accordingly, the following:
ORDER
(i) Criminal revision petition is meritless.
Accordingly, admission declined.
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(ii) Consequently, the revision petition is
dismissed.
Sd/-
(V SRISHANANDA)
JUDGE
