Karnataka High Court

Varale Saroja @ Saroja vs The State Of Karnataka on 10 September, 2024

Author: Mohammad Nawaz

Bench: Mohammad Nawaz

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                                                   NC: 2024:KHC:36866
                                                  CRL.A No. 91 of 2012




              IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 10TH DAY OF SEPTEMBER, 2024

                                     BEFORE
                   THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
                          CRIMINAL APPEAL NO. 91 OF 2012
            BETWEEN:

            VARALE SAROJA @ SAROJA
            D/O SINGEGOWDA
            AGED ABOUT 26 YEARS VARALE ,
            KATTINA KUNTRIMANE
            MEGUR VILLAGE,KOPPA TALUK
            CHIKMAGALUR.
                                                           ...APPELLANT
            (BY SRI. KASHINATH J D.,ADVOCATE)

            AND:

            THE STATE OF KARNATAKA
            REP BY THE PUBLIC PROSECUTORBY SRINGERI
            POLICE STATION.
Digitally                                                 ...RESPONDENT
signed by
ANAND N     (BY SRI. RANGASWAMY., HCGP)
Location:
HIGH
COURT OF           THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO
KARNATAKA
            SET ASIDE THE ORDER OF CONVICTION AND SENTENCE
            DATED 26.11.11 PASSED BY THE ADDL.SJ, CHIKMAGALURE IN
            S.C.NO.132/09-CONVICTING THE APPELLANT/ACCUSED FOR
            THE OFFENCE P/U/S.143,148,307 AND 353 R/W SEC.149 OF
            IPC;    THE   APPELLANT/ACCUSED   SENTENCED    TO   UDERGO
            S.I.FOR A PERIOD OF 2 YEARS FOR THE OFFENCE P/U/S.307
            OF IPC AND SHE SHALL ALSO PAY A FINE OF RS.3,000/- IN
                                 -2-
                                                    NC: 2024:KHC:36866
                                                CRL.A No. 91 of 2012




DEFAULT, SHE SHALL UNDERGO FURTHER FOR A PERIOD OF
30 DAYS S.I AND ETC.

     THIS APPEAL, COMING ON FOR HEARING, THIS DAY,

JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:       HON'BLE MR JUSTICE MOHAMMAD NAWAZ


                          ORAL JUDGMENT

This appeal is directed against the impugned judgment

and order dated 26.11.2011 passed by the Court of the

Additional Sessions Judge at Chikkamagaluru in

S.C.No.132/2009, whereby the learned Sessions Judge has

convicted the appellant/accused No.6 for the offence

punishable under Sections 143,148, 307, 353 read with section

149 IPC.

2. Heard the learned counsel for the appellant, the

learned High Court Government Pleader and perused the

evidence and material on record.

3. The case of the prosecution is that the Police

Inspector of DCRB, Chikkamagaluru, head of the Special Squad

formed to control the naxal activities within the jurisdiction of

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Shringeri Police Station, on receiving an information about the

naxal activities, went to Tharollikodige Barkana view point on

11.10.2004 at about 10a.m., along with other Police personnel,

and at that time, 30 - 40 persons both men and women,

forming an unlawful assembly, holding rifle, bombs, explosive

substances etc., tried to attack them and also fired at the Police

and then shouting slogans against the Government, escaped

from the spot and ran inside the forest.

4. In order to establish the guilt of the appellant/accused

No.6, the prosecution, in all, examined 10 witnesses and got

marked 10 documents and material object, MO.1 i.e., the

articles seized and kept in P.R. No.44/2007.

5. Among the prosecution witnesses, PWs.1,2 and 10 are

the Police officials who have gone to the spot. They have

spoken about the incident in question. PW.3 speaks about the

arrest of one of the accused by name Mallika @ Kavitha. PW.4

is Deputy Superintendent of Police, who deposed about

verifying and destroying the seized explosive substances. PW.5

and PW.9 are the Investigation Officers who have conducted

investigation in this case. PWs.6 and 7 are the panch witnesses

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to the seizure mahazar, Exhibits P-4 and P-2 respectively. Out

of the said witnesses, PW.6, panch witness to Ex.P-4 has

turned hostile. PW.8 is the Head Constable, Shringeri Police

Station, who registered the case on receiving the complaint -

Ex.P-1 from PW.1.

6. A perusal of Ex.P-1 lodged by PW.1 shows that, when

PW.1 and other Police Personnel went to the spot, there were

30 to 40 men and women, who tried to attack the Police and

fired at them. PWs.1, 2 and 10 have stated that even the

appellant/accused No.6 was also present among them. It is

relevant to see that in Ex.P-1, the description or identity of the

accused persons especially of the appellant herein are not

given. It is only stated that there were about 30 to 40 people

present at the spot, who had formed an unlawful assembly and

abused the Police, shouted and fired at them etc., It is stated

that thereafter, all of them ran inside the forest and escaped.

7. PW.1 in his cross-examination has admitted that he

has not mentioned either in Ex.P-1 or in his further statement

about the name of the appellant. He has further admitted that

there was no Test Identification Parade conducted and

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appellant/accused No.6 was not shown to him or to other Police

Personnel and they have not identified her.

8. Similarly, PW.2 has admitted that it is difficult to

identify the lady who shouted at them. Though he has stated

that accused No.6 was also present, at another breath, he has

stated that he is not aware as to which direction the said

accused ran away. It is relevant to mention that PW.2 has

spoken about the duty list of the naxalites which was seized

from the spot under a mahazar. He has admitted that in the

said list, the name of accused No.6, the appellant herein was

not mentioned but the names of other persons were

mentioned.

9. Similarly, PW.10 has stated in the cross-examination

that in the Sentry List which was seized, the name of one

Sarala was mentioned and the name of the present appellant

was not mentioned. He has stated that he is unable to say as

to which of the accused tried to fire at the Police.

10. Admittedly, the appellant/accused No.6 is a stranger

to PW.1, PW.2 and PW.10. According to Ex.P-1, there were

30 to 40 persons when PW.1 and other Police went to

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apprehend them. All of them are alleged to have ran inside the

forest. There is no Identification Parade conducted. The say of

PWs.1, 2 and 10 that the appellant was present among the said

30 to 40 persons is difficult to believe. The independent panch

witnesses were not taken to the spot and therefore, the

evidence of the independent witnesses is not available.

11. Incriminating materials were seized from the spot.

There is no recovery whatsoever at the instance of the

appellant. The witnesses have admitted that in the Sentry List

which was found at the spot and seized under a mahazar did

not contain the name of the appellant. Hence, it cannot be

held that the prosecution has established its case against the

appellant beyond reasonable doubt. It is also brought to the

notice of the Court that accused Nos.1 to 3 are acquitted by the

Sessions Court in S.C. No.61/2006.

12. The learned Sessions Judge, on the basis of

assumption and presumption, has come to the conclusion that

accused No.6 worked as co-accused in the incident and

attempted to commit the murder of the Police officials while

discharging their duties as public servants. Further held that

NC: 2024:KHC:36866

she has cooperated with other accused to commit the offence.

The said finding is recorded without any convincing or

acceptable evidence against the appellant. The Trial Court

itself has observed that no properties are recovered through

accused No.6 and she was not in possession of any explosive

substances. She has been acquitted of the offence punishable

under Section 4 of the Explosive Substances Act and under

section 3 and 25 of the Arms Act. Hence, the impugned

judgment passed by the Trial Court is liable to be set aside.

Accordingly, I proceed to pass the following:

ORDER

[i] The appeal is allowed.

[ii] The judgment and order dated 26.11.2011 passed

by the Court of the Additional Sessions Judge at

Chikkamagalur in Sessions Case No.134/2009

convicting the appellant/accused No.6 of the offence

punishable under sections 143,148, 307 and 353 read

with Section 149 IPC is set aside. The appellant is

acquitted of the above offences.