Karnataka High Court
Sri.Tukkappa @ Tukaram S/O Manageni ... vs The State Of Karnataka on 1 February, 2025
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CRL.RP No. 100040 of 2019
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 1ST DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL REVISION PETITION NO. 100040 OF 2019
(397(CR.PC)/438(BNSS))
BETWEEN:
SRI.TUKKAPPA @ TUKARAM S/O. MANAGENI
USHAKARI,
AGE: 52 YEARS, OCC: DRIVER AND AGRICULTURE,
R/O: CHIKKALAKI,
TQ: JAMAKHANDI, DIST: BAGALKOT.
...PETITIONER
(BY SRI. HARISH S. MAIGUR, ADVOCATE)
AND:
Digitally
signed by THE STATE OF KARNATAKA,
SHAKAMBARI R/BY P.S.I, SAVALAGI POLICE STATION,
Location: SAVALAGI,
High Court of R/BY ITS STATE PUBLIC PROSECUTOR,
Karnataka, HIGH COURT OF KARNATAKA,
Dharwad DHARWAD BENCH.
Bench
...RESPONDENT
(BY SRI. T. HANUMAREDDY, AGA)
THIS CRIMINAL REVISION PETITION IS FILED U/S 397
R/W 401 OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT
PASSED IN CRL.A.NO.14/2017, DATED 29.09.2018, FOR
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CRL.RP No. 100040 of 2019
OFFENCES PUNISHABLE U/S 326 OF IPC, PASSED BY THE I-
ADDL. DIST. & SESSIONS JUDGE, BAGALKOT, TO SIT AT
JAMAKHANDI, JAMAKHANDI, REVERSING THE JUDGMENT
PASSED IN C.C.NO.51/2013, DATED 01.06.2016, ON THE FILE
OF PRL. SENIOR CIVIL JUDGE & JMFC COURT, JAFMAKHANDI
AND CONSEQUENTLY ALLOW THE PETITION FILED BY THE
PETITIONER.
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE ORDER THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE RAMACHANDRA D.
HUDDAR
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR)
This revision petition is directed against the
judgment of conviction and order of sentence dated
29.09.2018 passed in Crl.A.No.14/2017 by the I Additional
District and Sessions Judge, Bagalkot, sitting at
Jamakhandi, setting aside the judgment of acquittal dated
01.06.2016 in C.C.No.51/2013 passed by the Principal
Senior Civil Judge and JMFC, Jamakhandi wherein, the
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accused were charge- sheeted by Savalagi Police for the
offence punishable under Section 325, 504 and 506 of IPC.
2. A complaint was filed by the complainant, by
name Hanamant Tippanna Babaladi alleging, that on
01.07.2013 at 3 p.m, when the complainant along with his
sheep went to the landed property of Kashiraya
Suryavanshi for the purpose of grazing his sheep, at that
time, the accused abused the complainant in a filthy
language and gave a life threat to him, so also, assaulted
the complainant on his right hand with club, caused him
bleeding injuries and the persons gathered there i.e.,
brother's son of the complainant by name Sadashiva
Babaladi and his son Sadashiva rescued him and resolved
the dispute. While this Sadashiva was taking him to the
Police Station, the accused gave a life threat to him. With
these allegations, a complaint came to be filed before the
Head Constable and the crime was registered against the
accused for the aforesaid offences and the criminal law
was set in motion. The Investigation Officer, after
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completion of the investigation filed the charge sheet.
During crime stage itself the accused was arrested and
was enlarged on bail consequently.
3. After filing the charge sheet, the learned
Jurisdictional Magistrate took cognizance of the offences
and copies of the police papers were furnished to the
accused as contemplated under Section 207 of Cr.P.C.
Charges against the accused were framed and read over
and explained to the accused in Kannada and the language
known to the accused and he pleaded not guilty and
claims to be tried.
4. To prove the guilt of the accused, prosecution
in all, examined 6 witnesses from PWs.1 to 6 and got
marked Exs.P1 to P4 and also MO.No.1 - the wooden club.
Closed the prosecution evidence.
5. On closure of the evidence of the
prosecution, accused was questioned under Section 313 of
Cr.P.C so as to enable him to answer the incriminating
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circumstances appearing in the evidence of the
prosecution. He denied his complicity in the crime and did
not choose to lead any defence evidence.
6. The learned Jurisdictional Magistrate on
hearing the arguments and on evaluation of the evidence
placed on record observed that the prosecution has utterly
failed to prove the guilt of the accused beyond all
reasonable doubt. It is further observed that because of
the inconsistencies and improvements in the evidences of
prosecution witnesses, the story put forth by the
prosecution cannot be accepted. Thus, by giving benefit
of doubt the accused was acquitted by the trial Court for
the offences under Sections 325, 504 and 506 of IPC.
7. This judgment of acquittal passed by the
JMFC, Jamakhandi was challenged by the State by
preferring Crl.A.No.14/2017 before the I Additional District
and Sessions Judge, Bagalkot sitting at Jamakhandi. The
learned first appellate Court, on hearing the arguments
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and on re-assessment of the evidence observed that, in
view of the evidence of eye witnesses and the injured, so
also, recovery of the club - MO.No.1, at the instance of
the accused, the prosecution is able to prove the guilt of
the accused and thereby, found the accused guilty of
committing the aforesaid offences. The learned lower
appellate court set aside the impugned judgment so
passed in C.C.No.51/2013 dated 01.06.2016 passed by
the Principal Senior Civil Judge and JMFC, Jamakhandi,
convicted and sentenced the accused for the offence under
Section 326 of IPC and acquitted the accused for the
offences under Sections 504 and 506 of IPC:
Order of sentence reads as under:
"The respondent/accused is convicted
U/s.248(2) of Cr.P.C. for the offence
punishable U/s.326 of IPC and
sentenced to under simple imprisonment
for 2 years and sentenced to pay a fine
of Rs.5,000/- in default of payment of
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fine the accused is sentenced to undergo
simple imprisonment for 2 months."
8. Now the accused - petitioner is before this
Court, challenging the impugned judgment of the lower
appellate Court.
9. The learned counsel Sri Harish S Maigur
appearing for the revision petitioner in addition to the
grounds urged in the revision petition with all vehemence
submits that, no such incident as alleged by the
prosecution has taken place. He submits that, both
accused and the complainant are relatives. Because of
some ill-will, a false complaint is filed. The accused is a
Rickshaw driver and there was no occasion for this
Rickshaw driver to take his sheep. He further submits
that, the so called witnesses examined by the prosecution
are the close relatives of the accused. Even their evidence
is also not convincing and there is no substantial in the
evidence given by the witnesses as well as a cross-
examination so directed. In view of the admissions in the
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cross-examination, he submits that no such incident has
taken place and this accused is falsely implicated by the
complainant because of some ill will.
10. The learned counsel for the accused -
petitioner took me to the various evidence placed on
record both oral and documentary. Further he submits that
the ingredients of the offence under Section 320 of IPC
with regard to the commission of the crime under Section
326 being the grievous hurt is not proved by the
prosecution. Learned counsel for the petitioner further
submits that, the prosecution has not produced any X-ray
report, CT scan report to know the exact injuries suffered
by the complainant. It is fatal to the case of the
prosecution. In support of his submission, learned counsel
for the accused - petitioner relied upon the Division Bench
judgment of this Court in Crl.A.No.100481/2019 dated
21.11.2022. He submits that as the vital medical reports
are not produced to show about the grievous injuries
suffered by the complainant, it is hard to believe the story
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of the complainant. Thus, he submits that all is not well
with the case of the prosecution and the offences so
alleged against the accused is not proved. Hence, he
prays to allow the revision and set aside the impugned
judgment of the lower appellate Court and restore the
judgment of the trial court.
11. As against this submission, learned AGA
Sri T. Hanumareddy with all force submits that, the lower
appellate Court has properly appreciated the evidence
placed on record by the prosecution. PW.1 being the eye
witness and injured, has supported the case of the
prosecution. His own brother's son and his son have
supported the case of the prosecution being the eye
witnesses and because of the assault on the person of the
complainant by the accused, he has sustained the grievous
injuries. Immediately, he was shifted to the hospital. In
the hospital, police came and recorded his statement.
Therefore, he submits that, as there is a proper
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appreciation of evidence by the lower appellate Court, he
prays to dismiss the revision petition as devoid of merits.
12. I have given my anxious consideration to
the arguments of both the side. Perused the records.
13. According to the case of the prosecution,
on 01.07.2013 at 3 p.m, this accused herein, near the
land of one Kashiraya Suryavanshi, when the complainant
was grazing the sheep, when accused asked him why he is
grazing the sheep, at that time, accused picked up a
quarrel with the complainant and abused him in a filthy
language so as to make the complainant to provoke
himself and cause him threat in the public place, so also
abused him in a filthy language and gave a life threat to
him. rate. It is alleged that by using MO.No.1 - club,
accused assaulted on the left wrist of the complainant and
caused him grievous injuries.
14. In a case of present nature, is a bounden
duty of the prosecution to prove the guilt of the accused
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beyond all reasonable doubt. The learned Trial Court has
acquitted the accused for the offences under Sections 504
and 506 of IPC. When it is the case of the prosecution
that, accused abused the complainant and also gave a life
threat, and where such an offence is not proved by the
prosecution as per the findings of the learned lower
appellate Court, prosecution has not challenged the said
findings. No appeal is preferred being aggrieved by the
said finding of the lower appellate Court by the
prosecution. Now the accused is before this Court
challenging his conviction and sentence for the offence
under Section 326 of IPC.
15. Section 320 of the IPC defined what is
`grievous injury'. As per this section, the ingredient to
prove the grievous injuries is stated in Section 320 of IPC
which gives a definition of the grievous injuries. The said
provision reads as under:
"320. Grievous hurt
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The following kinds of hurt only are
designated as "grievous":-
First- Emasculation.
Secondly- Permanent privation of the
sight of either eye.
Thirdly- Permanent privation of the
hearing of either ear,
Fourthly- Privation of any member or
joint.
Fifthly- Destruction or permanent
impairing of the powers of any member
or joint.
Sixthly- Permanent disfiguration of the
head or face.
Seventhly- Fracture or dislocation of a
bone or tooth.
Eighthly- Any hurt which endangers life
or which causes the sufferer to be
during the space of twenty days in
severe bodily pain, or unable to follow
his ordinary pursuits."
16. The law is very much settled that the
offence of causing grievous hurt cannot be said to be
made out unless the ingredients of Section 320 of IPC are
satisfied. That means there must either be an injury
falling within the categories enumerated in the first seven
clauses of Section 320 of IPC and there must be proof of
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circumstances falling within the 8th clause where there is
no evidence of victim was in severely bodily pain or unable
to follow his ordinary pursuits. Then 8th clause is not
attracted, merely because the accused was in hospital and
took a treatment as inpatient. So the prosecution is under
obligation to prove all the ingredients of Section 320 of
IPC.
17. Now let me analyze the evidence placed
on record by the prosecution that, whether it is able to
establish the offence under Section 326 of IPC in the
manner alleged.
18. PW.1 being the complainant and injured,
has come before the trial court and stated that, about 5
years back he had been to the land of Kashiraya
Suryavanshi to graze the sheep. At that time accused
came there and started abusing him objecting for leaving
sheep there and assaulted him with a club on his right
palm and sustained injuries. Further he states that his
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brother's son and his son came there and rescued and
took him to the Savalagi Hospital and thereafter to
Jamakhandi Government Hospital. Police came to the
Hospital, he says a statement/complaint as per Ex.P1. He
identified MO.No.1 weapon alleged to have been used by
the accused to commit the crime against the complainant.
In the cross-examination, he states that, he is the resident
of the Chikkalaki village. He owns land and house
properties there. Further he states that, he has got four
children and all are residing together. His family has got
60 sheep. He denied the suggestion that, his son
Sadashiva is residing in Bilagi and not with him.
According to him, on 01.07.2013, he was at Chikkalaki
village. Accused is his distant relative. There is a dispute
between him and his wife. Further he states that, land of
accused is not there near the scene of offence. Accused is
running an Autorickshaw. After the incident, he went to
the Savalagi police station to lodge a complaint. The clubs
like MO.No.1 are very much available everywhere. He
denied other suggestions.
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19. If the evidence of PW.1 is scrupulously
perused, he has given a altogether different evidence with
regard to the filing of the complaint. In examination-in-
chief, he states that immediately after the incident, he has
gone to Savalagi Hospital. But, in the cross-examination
he states that he went to the police station to lodge a
complaint. There is no landed property available near the
scene of offence, belonging to the accused. Then how the
incident took place and in whose land the said incident
took place is a mystery. From the evidence of PW.1 as
rightly appreciated by the trial Court, there is no proof
regarding the scene of offence. Therefore, if such an
evidence is placed on record through PW.1, it requires
corroboration.
20. PW.2 - Barmappa Mayappa Honavada is a
scene of offence panch. He states that, he was called by
the police to the land of Kashiraya Suryavansi. Police
conducted the panchanama in his presence in between 9
am and 10 am. He identified Ex.P2 - the panchanama and
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his signature on the same. The police seized the said
MO.No.1 in his presence. In the cross-examination, he
states that he is resident of Chikkalaki village. There is a
distance of two kilometer between Chikkalaki village and
Chikkalaki cross. CW.5 took him to Chikkalaki cross.
Police were there in the land of one Suryavansi. Police
have not called him. He has not given an instructions to
write the panchanama. He has signed the panchanama in
the landed property of Kashiraya Suryavansi. According to
him, he is acting as an elderly person and often visits the
police station. He knows the police, which means he,
appears to be a professional pancha employed by the IO
to conduct the panchanama. Therefore, such an evidence
of the professional pancha, unless it is, proved by the
prosecution about presence of this PW.2 at the time of
panchanama, such an evidence cannot be accepted as a
truthful evidence. He must have been called to the police
station as argued by the counsel for the accused and
signature must have been taken. According to him, police
have seized MO.No.1 from the spot shown by CW.5. CW.5
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is Sadashiva examined as PW.3. He is the son of the
complainant. According to him, his father is a shepherd.
About a year back, his father had gone to near Chikkalaki
cross to graze the sheep. At that time himself and CW.2
went to give food to the complainant. There was a quarrel
between accused and CW.1 for leaving the sheep there.
They pacified the quarrel. Accused assaulted his father
with hand and club on his right hand. He sustained
injuries. They took him to the hospital. Incident took
place at about 3 pm on that day. Accused gave a life
threat to his father. He identified MO.No.1.
21. On perusal of the examination-in-chief, it
shows that there was a quarrel and they pacified the
quarrel. When exactly the accused has assaulted his father
is not stated by the PW.3. In the cross-examination he
states that he was also grazing sheep with his father and
brother. On 01.07.2013, he had gone to the house. That
means, when the incident took place this PW.3 was not
present as per his answer in the cross-examination. But,
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this witness has been branded as an eye witness by the
prosecution. Accused is his brother in law. He does not
know whether there is a dispute between the accused and
his wife. Accused is running an Autorickshaw. He pacified
the quarrel. He denied other suggestions. In view of the
evidence given in the cross-examination, it shows that, on
01.07.2013, he had gone to the house and was not
present when the alleged incident took place. Therefore,
evidence of PW.3 cannot be accepted that he was really a
eye witness to the said incident as alleged by the
prosecution.
22. PW.4 - Doctor Shrishail has examined the
complainant at Jamakhandi Hospital at 6.55 p.m on
01.07.2013. He noticed the injuries as under:
'Abrasion and swelling present over the right hand
dorsal aspect injury, fresh bleeding was present,
tenderness present.'
23. According to the Doctor, X-ray of the right
hand was taken. He is an orthopedic surgeon. He noticed
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"oblique fracture neck of 3rd metacarpal extending
obliquely to shaft with displacement." When this
PW.4 has taken the X-ray to know the exact fracture,
nothing prevented the prosecution to collect the said
fracture and produce before the Court. He opines that
injuries are grievous in nature. He had issued the Wound
Certificate as per the Ex.P3. But, how many days the
complainant - injured was in hospital and whether he was
restrained or refrained from discharging his ordinary
pursuits for a continuous period of 20 days is not at all
stated by this PW.6 - Doctor who has issued the
certificate. According to him, the said injury might have
been caused by contact with hard and blunt object. He
states that by assaulting the person by using MO.No.1, the
said injuries may be possible. In the cross-examination he
states that he is not an orthopedic surgeon. He has issued
the certificate based upon the opinion of the Doctor
Kandagal. That Dr.Kandagal is not examined by the
prosecution. He does not remember through whom he
sent the MLC in this case. Thus, he being a Doctor, based
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upon the opinion of the Dr. Kandagal, he has issued the
wound certificate - Ex.P3. When such evidence is placed
on record through this Doctor, a doubt arises that,
whether the complainant had really sustained the grievous
injuries in the manner stated by the prosecution.
Therefore, evidence of the PW.4 - Dr. Shrishaila cannot be
accepted as truthful evidence, as he has not given his
opinion but, based upon the opinion of the Kandagal, who
has examined the complainant, has given the opinion.
24. PW.5 - Sadashiva Muttappa Babaladi, is
an eye witness and a close relative of the complainant.
According to him, at 3.00 pm on that day, he noticed
accused giving life threat to the complainant. Himself and
the son of the complainant Sadashiva pacified the quarrel.
Police have recorded his statement. But, in the cross-
examination, he states that he was not grazing the sheep.
CW.1 is his brother. He states that CW.5 is the son of the
complainant. He is acting as an elderly person. Accused
is not cultivating the land of Suryavansi on share basis.
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Accused is also his relative. Thus, the evidence of this
PW.5 shows that, he was not present when the alleged
incident has taken place and he must have given evidence
before the trial Court at the instance of the complainant.
This possibility cannot be ruled out.
25. It is stated that the complainant has
sustained the grievous injuries. Either the complainant or
eye witnesses never say that, really the complainant has
sustained the bleeding injuries in the manner stated by
the prosecution.
26. PW.6 - Dilip Kumar is a Head Constable
who went to the Government Hospital Jamakhandi on
02.07.2013 on receipt of the MLC intimation. There he
recorded the statement of complainant as per Ex.P1, came
to the police station and registered the crime in Crime
No.93/2013 and set the criminal law in motion. Then he
went to the scene of offence at about 9 am on
03.07.2013, conducted the panchanama in between 9.00
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am and 10.00 am and recovered MO.No.1 from the spot.
None of the witnesses have stated before the Court that,
said MO.No.1 was still lying at the scene of offence and
even available when the panchanama Ex.P2 was
conducted by the police. PW.6 was cross-examined by the
defence. He has stated that there is a distance of 16
kilometres from Chikkalaki Cross to Savalagi. It is the
distance of half-an-hour from police station to the scene of
offence. He secured panchas. They were standing near
the cross. Often CWs.2 and 3 come to the police station.
He denied other suggestions. That means CWs.2 and 3 so
stated in the charge sheet are the professional panchas.
They often visit the police station. Whether really the
PW.6 has visited the scene of offence and conducted the
panchanama is not at all corroborated by any of the
witnesses in this case. In all criminal cases, investigation
officers are the supervisors of the investigation. Unless
their evidence corroborated, their evidence is become
formal in nature.
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27. Thus, on scrupulous reading of the entire
evidence placed on record by the prosecution, though
PW.6 says that he went to Jamakhandi Government
Hospital to read the statement of PW.1, but, PW.1 states
that, he went to the police station and lodged a complaint.
It is a material contradiction in the evidence of PW.1, with
regard to the filing of the complaint. To prove such
incident which has taken place in the manner stated by
the prosecution, except the self-serving and interested
evidence of PW.1, there is no evidence placed on record by
the prosecution. The witnesses so examined are their
relatives. Perhaps that must have prompted son of the
complainant and his brother to give evidence against the
accused, because of some family animosity. This
possibility cannot be ruled out. Though the independent
witnesses are available, no such witness is examined by
the prosecution. It is not the case of the prosecution that,
near the scene of offence, when the alleged incident took
place, the people have not gathered. No such evidence is
placed on record. When it is a landed property, the other
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cultivators of the property must be available near by the
scene of offence. No such evidence is brought on record.
28. In view of all these factual features
coupled with the contradictions, omissions and
discrepancies in the evidence of the prosecution, as rightly
appreciated by the trial Court, the prosecution has failed
to prove the guilt of an accused beyond all reasonable
doubt. The ingredients of offence under Section 326 of
IPC are not fulfilled with legal evidence. The doctor's
evidence is based upon the opinion of another Doctor
which do not inspire any confidence that, it is accused who
was an assailant. Therefore, the learned trial Court has
committed a grave error in re-appreciating the evidence
and came to a wrong conclusion that, accused is guilty of
committing the offence under Section 326 of IPC. In view
of all these factual features, there arises a doubt in the
case of prosecution and that benefit of doubt has to be
extended to the accused. Accordingly, the accused is
entitled for acquittal by giving benefit of doubt.
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29. Resultantly, I pass the following:
ORDER
i) The revision petition is allowed.
ii) The judgment of conviction passed in
Crl.A No.14/2017 dated 29.09.2018 by
the I Additional District and Sessions
Judge, Bagalkot (sitting at
Jamakhandi), is hereby set aside and
consequently, judgment of acquittal
passed in CC No.51/2013 dated
01.06.2016 by the Prl.Senior Civil Judge
and JMFC, Jamakhandi, is restored.
iii) Consequentially, the petitioner-accused
is acquitted of the charges for the
offence punishable under Section 326 of
the IPC.
iv) His bail bonds stand cancelled. He is set
at liberty.
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v) Registry to send back the trial Court
records along with a copy of this
judgment forthwith.
vi) Registry is directed to send the
operative portion of the judgment to
the trial Court and First Appellate Court
for compliance through mail.
Sd/-
(RAMACHANDRA D. HUDDAR)
JUDGE
SK/CT-VG,
