Karnataka High Court
Kumara vs State By Kyathsandra Police Station on 19 February, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.RP No. 299 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO. 299 OF 2021
BETWEEN:
1. KUMARA
S/O GANGAHUCHAIAH
AGED ABOUT 42 YEARS
2. SIDRAMANNA
S/O GANGAHUCHAIAH
AGED ABOUT 44 YEARS
3. SRIDHARA
S/O GANGAHUCHAIAH
AGED ABOUT 40 YEARS
4. SURESHA
S/O GANGAHUCHAIAH
Digitally signed AGED ABOUT 36 YEARS
by DEVIKA M
Location: HIGH
COURT OF 5. SHIVARAJAKUMAR
KARNATAKA S/O GANGAHUCHAIAH
AGED ABOUT 34 YEARS
ALL ARE RESIDENTS
OF BELLIBATTALAHALLI
UDIGERE HOBLI
TUMAKURU TALK-576 101.
...PETITIONERS
(BY SRI. SANTHOSH R. NELKUDRI, ADVOCATE)
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CRL.RP No. 299 of 2021
AND:
1. STATE BY
KYATHSANDRA POLICE STATION
REPRESENTED BY SPP
HIGH COURT BUILDING
BENGALURU-560 001.
...RESPONDENT
(BY SRI. VINAY MAHADEVAIAH, HCGP)
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF
CR.P.C PRAYING TO SET ASIDE THE IMPUGNED JUDGEMENT
OF CONVICTION AND SENTENCE PASSED BY THE PRINCIPAL
CIVIL JUDGE AND JMFC, TUMKURU IN C.C.NO.4183/2012
DATED 22.04.2019 AND THE JUDGMENT IN CRL.A.NO.28/2019
PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS
JUDGE, TUMKURU DATED 13.01.2021 BY ALLOWING THIS
CRL.R.P.
THIS PETITION COMING ON FOR FINAL HEARING THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL ORDER
Heard learned counsel for petitioners and learned HCGP
for the respondent-State.
2. This revision petition is filed challenging the
conviction and sentence passed against petitioners for the
offence punishable under Sections 143, 147, 148, 323 and 324
read with Section 149 IPC and release the accused persons
invoking Section 4 of Probation of Offenders Act, 1958. The
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said order is challenged before the First Appellate Court and the
First Appellate Court allowed the appeal in part and acquitted
accused Nos.4 and 6 and confirmed the judgment in respect of
other accused persons.
3. The factual matrix of the case of the prosecution
before the Trial Court is that on 27.08.2012 at about 8.30 a.m.
at Bellibattlahalli Village, Urdigere Hobli, Tumakuru Taluk within
the jurisdiction of Kyatasandra Police Station, when C.W.1 was
cultivating in the land bearing Sy.No.18/1 and C.W.2 was
removing broken twigs of tamarind tree, then all the accused
by forming unlawful assembly armed with deadly weapons like
chopper and clubs started quarrelling with C.W.2. Accused No.1
caused hurt to C.W.2 on his left leg, right thigh and backside of
the head using a club. When C.W.1 came to his rescue, accused
No.2 caused hurt to C.W.1 on his head, forehead and left finger
with chopper. Remaining accused caused hurt to C.W.1 by
assaulting with their hands and kicking him with their legs.
Based on the complaint, the police have registered he case in
Crime No.280/2012 and investigated the matter and filed the
charge-sheet for the offence punishable under Sections 143,
147, 148, 323, 324, 326 read with Section 149 IPC. The
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accused persons were secured and they did not plead guilty
after taking cognizance and claimed for trial.
4. Hence, the prosecution examined five witnesses as
P.Ws.1 to 5 and two material objects as M.Os.1 and 2 and
accused was subjected to 313 statement.
5. The Trial Court having considered the evidence of
P.Ws.1 to 3 as well as the Investigating Officer, convicted the
petitioner as well as the other accused persons. Being
aggrieved by the same, the petitioners filed the appeal in
Crl.A.No.28/2019 and he First Appellate Court set aside the
judgment of conviction and sentence against the accused Nos.4
and 6 on re-appreciation of material available on record. Being
aggrieved by the judgment of conviction, the present revision
petition is filed before this Court.
6. The main contention of learned counsel for the
petitioners is that P.W.1 in his cross-examination admitted that
there were no other persons present at the time of incident and
the evidence of P.W.3 is contrary to the case of the prosecution
and he says that he had witnessed the incident and both the
Courts failed to take note of this admission and committed an
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error. It is contended that on 27.08.2012, the complainant has
given statement in the hospital as an inpatient. But the
complainant was present in the Village about 19 kms. away on
28.08.2012 at the time of mahazar and has put his signature
as a witness. The counsel would contend that it is highly
impossible to be present about 19 kms. distance at the same
time. This aspect was ignored by the Trial Court while
considering the matter on merits.
7. Learned counsel would vehemently contend that
P.W.1 was not there at the spot but, he claims that he used to
tie cattle in the land of Govindappa. Learned counsel would
contend that this admission is very clear that he was not an eye
witness and he is an interested witness and also categorically
admits in the cross-examination that he was not having
agricultural land adjacent to the land of complainant. This
evidence was not considered by the Trial Court. Learned
counsel also vehemently contend that Doctor, who has been
examined as P.W.4 in the cross-examination admits that the
nature of injuries sustained would be caused even in the motor
accident and also admits that C.W.1 did not come to hospital
for any treatment and he gave the wound certificate and the
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said suggestion was denied. This evidence is also not
considered by the Trial Court. Hence, it requires interference of
this Court.
8. Per contra, learned HCGP for the respondent-State
would vehemently contend that P.W.2 is brother of P.W.1, who
is the complainant and the evidence of these two witnesses is
clear that they are brothers and incident has taken place at
8.30 a.m. and immediately, the injured was taken to the
hospital and treatment was given and Ex.P2 is clear that P.W.2
had sustained injuries. He would vehemently contend that
P.W.4-Doctor evidence coupled with the evidence of P.Ws.1 and
2 corroborates with each other and P.W.5 is the Investigating
Officer, who conducted investigation and it does not require
interference of this Court.
9. Having heard learned counsel for the petitioner and
learned HCGP for the respondent-State and also considering
the material on record, the points that would arise for
consideration of this Court are:
(i) Whether the Trial Court and the First Appellate
Court committed an error in accepting the
case of the prosecution that an incident of
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assault has taken place and it requires
interference of this Court by exercising
revisional jurisdiction?
(ii) What order?
Point No.(i)
10. Having heard learned counsel for the petitioner and
learned HCGP for the respondent-State as well as considering
the material on record, the incident has taken place in terms of
complaint at Ex.P1 at 8.30 a.m. P.Ws.1 and 2 categorically
deposed that the accused persons assaulted with machete and
club. It is important to note that wound certificate is produced
only in respect of P.W.1-Jagadeesh, who had sustained injuries.
On perusal of evidence of P.W.1, he claims that when he tried
to pacify the galata, when the accused were assaulting P.W.2,
they assaulted with machete on his head, hand and also on the
shoulder and others assaulted with their hands and he gave the
complaint in terms of Ex.P1. No doubt, in the cross-
examination, it is elicited that there is dispute between both the
petitioners and the complainant, P.W.1 categorically admits
that at the time of incident, no one was there and also he does
not know, who gave M.O.1 to the police, but accused persons
brought the same.
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11. The other witness is P.W.2-Harisha. According to
the prosecution witness, he was assaulted on his left leg, right
leg and also on the head with club. He also says that when his
brother P.W.1 tried to pacify the incident, he was assaulted
with machete by the accused-Siddaramanna. When witness
was subjected to cross-examination, he categorically says that
he was assaulted with club, but he claims that he gave wound
certificate to the police and the same is not produced before
the Court.
12. The other witness is P.W.3. He claims that he also
witnessed the incident of assault and police took the statement.
But in the cross-examination, he categorically admits that he
was not having any land near the land of complainant and also
he used to tie cattle belonging to father of P.Ws.1 and 2. No
doubt, the prosecution also examined the Doctor, he says that
injured went to hospital at 9.30 a.m. and incident has taken
place at 8.30 a.m. and he says that this type of injuries could
be caused even in the motor accident. The other witness is
ASI, who conducted the investigation.
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13. Having considered the material on record, this
Court has to consider whether there is perversity in the finding
of the Trial Court and the First Appellate Court, since the scope
of the revision is very limited and if the Court finds that if any
perversity in the finding, then only the Court can exercise the
revisional jurisdiction. Having considered the material on
record, particularly Ex.P1, the incident has taken place at 8.30
a.m. and complaint was given on the very same day at 3.30
p.m. and the statement of injured was recorded in the hospital.
It is also important to note that Ex.P2-wound certificate
disclose that injured went to the hospital within a span of one
hour and injuries are found and there were four injuries and out
of that, one injury is grievous in nature and others are simple
in nature. The Doctor is examined as P.W.4 and he admits that
this type of injuries could be caused in the motor accident,
however, he categorically says that history was given by the
injured and merely eliciting answer that this type of injury
could be caused in the accident, question of accepting the same
does not arise, since the injured has taken treatment
immediately on the same day within a span of one hour of the
incident.
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14. No doubt, P.W.3 says that he was not having any
adjacent property near the land of complainant, it is also
important to note that P.W.1 categorically states that no other
persons were present. It is also important to note that P.W.3
categorically admits that he used to tie cattle in the land of
father of P.Ws.1 and 2 and the very presence of P.W.3 is
doubtful, in view of evidence of P.W.1. However, when the
injured witnesses P.Ws.1 and 2 have been examined and P.W.1
categorically says that he was assaulted with machete on his
head, hand and shoulder and Ex.P4-wound certificate also
categorically says that he had sustained injuries on parietal
area i.e., on the head and other injuries near left eye lid,
tenderness and pain was found in the left finger and left peri
orbital edema was found and injury No.2 is left frontal linear
fracture with one inch underlying EDH.
15. When such material is available on record coupled
with medical evidence of P.W.4-Doctor and evidence of P.Ws.1
and 2, I do not find any error committed by the Trial Court and
the First Appellate Court in appreciating both oral and
documentary evidence placed on record and convicting the
petitioners. However, taking note of the fact that there exists
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earlier civil dispute between the parties and Trial Court also
invoked Probation of Offenders Act, 1958 and released them on
obtaining bond for Rs.20,000/-, when such material is available
on record, I do not find any error committed by the Trial Court
and First Appellate Court in re-appreciating the material on
record and there was no delay in lodging the complaint. It is
evident from the records that there was ill-will between the
parties prior to the incident and incident has taken place in the
morning at 8.30 a.m. and immediately, the injured persons
rushed to the hospital and they gave the history that injuries
are caused on account of assault made by the accused persons.
However, both the Courts lost sight of evidence of P.Ws.1 and 2
and P.W.1 in his evidence categorically say that accused No.1
assaulted his brother with club and when he intervened to
rescue his brother, accused No.2 assaulted him and P.W.1 says
that remaining accused assaulted with their hands and there is
an improvement in the evidence of P.W.2 and he says that
remaining accused also assaulted with their hands and club on
his brother. But, P.W.1 not speaks about assaulting him with
club, but he categorically says that accused No.2 assaulted him
with machete. Hence, it is clear that it is nothing but
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implication of other accused persons by saying that they
assaulted with their hands.
16. In the case on hand, there is no specific overt act
allegation against accused Nos.3, 5 and 7, except saying that
they assaulted with hands. When such being the case, the Trial
Court ought to have taken note of the same and benefit of
doubt is given to other accused persons and overt act
allegation is against accused Nos.1 and 2 that they assaulted
with club and machete and this fact was not considered by the
Trial Court and the First Appellate Court. P.W.2 in the cross-
examination makes statement that accused persons assaulted
with club and even not produced wound certificate in respect of
injuries sustained by P.W.2 and only wound certificate is
produced in respect of P.W.1. When such being the case, both
the Courts lost sight of evidence available on record in respect
of other accused persons, when an omnibus statement is made
against them and other accused persons are already acquitted
by First Appellate Court i.e., accused Nos.4 and 6. Hence, the
revision petition has to be allowed in part in respect of other
accused persons, except accused Nos.1 and 2.
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Point No.(ii)
17. In view of the discussion made above, I pass the
following:
ORDER
(i) The criminal revision petition is allowed in part.
(ii) The conviction passed against accused Nos.3, 5
and 7 are set aside and they are acquitted for
the offences which have been invoked against
them.
Sd/-
(H.P.SANDESH)
JUDGE
ST
