Karnataka High Court
Syed Rizwan vs Asgar And Ors on 24 February, 2025
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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CRL.A No. 200233 of 2024
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 24TH DAY OF FEBRUARY, 2025
PRESENT
THE HON'BLE MR JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 200233 OF 2024
(372(Cr.PC)/413(BNSS)
BETWEEN:
SYED RIZWAN S/O SYED JABBAR
AGE: 28 YEARS, OCC: CLOTH BUSINESS,
R/O. MILLATH NAGAR,
KALABURAGI - 585105.
...APPELLANT
(BY SRI MAHANTESH H DESAI, ADVOCATE)
AND:
Digitally signed
by RAMESH 1. ASGAR S/O MOHAMMED YUSUF MIYAN
MATHAPATI
Location: HIGH
AGE: 28 YEARS, OCC: BUSINESS
COURT OF R/O KHAMAR COLONY,
KARNATAKA
KALABURAGI - 585105.
2. MOBIN S/O MOHAMMED YUNUS
AGE: 38 YEARS, OCC: BUSINESS
R/O MAHEBOOB NAGAR,
KALABURAGI - 585105.
3. THE STATE OF KARNATAKA
THROUGH GRAMEEN P.S.
KALABURAGI
REPRESENTED BY ADDL. S.P.P.
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CRL.A No. 200233 of 2024
HIGH COURT OF KARNATAKA
KALABURAGI BENCH - 585103.
...RESPONDENTS
(BY SRI ASHOK MULAGE, ADV. FOR R1 & R2;
SRI SIDDALING P. PATIL, ADDL. SPP FOR R3)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372
OF CR.P.C (OLD), U/SEC. 413 OF BNSS (NEW), PRAYING TO
SET ASIDE THE JUDGMENT OF ACQUITTAL PASSED BY THE
HONOURABLE COURT OF III ADDL. DIST. AND SESSIONS
JUDGE AT KALABURAGI IN S.C.NO. 85/2023 DATED
27.04.2024 BY ALLOWING THIS APPEAL CONVICT AND
SENTENCE THE RESPONDENTS NO.2 AND 3 / ACCUSED FOR
THE CHARGES U/SEC. 504, 307 R/W SEC. 34 OF IPC BY
IMPOSING APPROPRIATE SENTENCE OF IMPRISONMENT AND
COMPENSATION,
THIS APPEAL, COMING ON FOR ADMISSION HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE S.SUNIL DUTT YADAV
AND
HON'BLE MR JUSTICE RAJESH RAI K
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE RAJESH RAI K.,)
This appeal preferred by the victim against the judgment
passed in S.C.No.85/2023 dated 27.04.2024 by the III
Additional District and Sessions Judge at Kalaburagi
(hereinafter referred to as the 'learned Sessions Judge'),
whereby, the learned Sessions Judge acquitted the accused
Nos.2 and 3 for the offences punishable under Sections 307
and 504 r/w section 34 of IPC.
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2. Abridged facts of the prosecution case are that;
On 26.07.2019 at 9:30 p.m., when PW.1-Syed Rizwan
along with CW.4 to 6 were standing in front of Jabbar Function
Hall at Kalaburagi, accused No.2 and 3 /respondents No.1 and
2 along with (accused No.1 against whom the case is split up)
visited the said spot with a JCB. When PW.1 questioned
accused No.1, he replied stating he visited to clean the plot,
however, the conversation led to a row. Following which,
accused No.1 abused and physically assaulted PW.1 with an
iron rod on his head, accused No.2 aided by assaulting with
club on his left shoulder, left palm, right thigh and waist while
accused No.3 fisted on his right eye. They collectively
attempted to kill him, when PW.1 attempted to flee by running
towards the function hall, further the accused collectively
caught hold of him and assaulted him with their bare hands.
However, CWs.4 to 6 pacified the quarrel and thereafter, PW.1
admitted in the Hospital.
3. Based on MLC from Government Hospital, on
26.07.2019 at about 11:55 p.m., PW.8 recorded the statement
of victim/appellant as per Ex.P1 and registered the FIR against
the accused in Crime No.189/2019 dated 26.07.2019 for the
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offences punishable under Sections 307 and 504 r/w Section 34
of IPC as per Ex.P4.
4. Subsequently, PW.6, and CW.9 conducted the
investigation and CW.9 laid the charge sheet against
respondents/accused Nos.2 and 3 for the offences punishable
under Sections 307 and 504 r/w Section 34 of IPC before the
committal Court (since case against accused No.1 split up
before the said Court). Accordingly, case against accused Nos.2
and 3 committed before the Sessions Court.
5. On committal of the case before the Sessions Court,
the learned Sessions Judge framed the charges against the
respondents/accused Nos.2 and 3 for the aforementioned
offences and read over verbatim to them. The accused pleaded
not guilty and claimed to be tried.
6. In order to prove the charges levelled against the
respondents/accused Nos.2 and 3, the prosecution collectively
examined 6 witnesses as PW.1 to 6, marked 4 documents as
Ex.P1 to Ex.P4 and identified 2 material objects as MO.1 and
MO.2.
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7. Post completion of the trial, the learned Sessions
Judge read over the incriminating portion of the evidence of
witnesses to the accused under the provisions of Section 313 of
Cr.P.C and the accused denied the same. The defense of the
accused is of absolute denial and that of false implication.
8. The Sessions Court after considering the evidence
on record, acquitted the respondents/accused Nos.2 and 3 for
the charges levelled against them. The said judgment of
acquittal is challenged under this appeal by the victim-PW.1.
9. We have heard the learned counsel, Sri. Mahantesh
H. Desai for the appellant/victim and learned counsel Sri. Ashok
Mulage for respondents/accused and learned Addl. SPP Sri
Siddaling P. Patil for the State/respondent No.3.
10. The primary contention of the learned counsel for
the appellant is that the learned Sessions Judge has grossly
erred while acquitting the accused for the charges levelled
against them without appreciating the evidence of material
witnesses in a right perspective. He would contend that the oral
testimony of PW.1 injured clearly corroborates to the medical
evidence of PW.4-Doctor who examined him and issued wound
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certificate as per Ex.P3. Further, PWs.3 and 5, the
eyewitnesses to the incident also categorically stated about the
assault made by accused Nos.1 to 3 to PW.1. In such
circumstance, the learned Sessions Judge acquitted the
accused only based on surmise and conjecture. He would also
contend that the prosecution also proved the motive for the
alleged incident that there was a dispute between the accused
No.3 and PW.1 in respect of share in a flat which stands in the
name of PW.1. In such circumstance, the prosecution has
placed sufficient material to prove the charges levelled against
the accused. In spite of the same, the learned Sessions Judge
acquitted the accused, which caused great injustice to the
victim-PW.1. Accordingly, he prays to allow the appeal by
setting aside the impugned judgment and to convict the
accused for the charges levelled against them.
11. Per contra, learned counsel for the
respondents/accused submitted that the judgment under this
appeal does not suffers from any perversity or illegality since
the learned Sessions Judge after meticulously examining the
evidence on record passed a well reasoned judgment by
acquitting the accused. He would further contend that, there
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are major discrepancies in the evidence of PWs.1 to 3 in
respect of the very incident and the manner in which the same
said to have been occurred. Further, PW.4-Doctor who treated
the injured has admitted in her cross-examination that there is
an overwriting with regard to the date of admission of PW.1 as
inpatient to the Hospital. Further, PWs.1, 3 and 5 have not
stated the specific overt act of accused Nos.2 and 3. As
admitted by them, the injury said to have been caused to him
by accused No.1 and the overt act alleged against these
respondents that they were present in the scene of occurrence
and fisted the hands of PW.1. All these aspects are meticulously
examined by the learned Sessions Judge and acquitted the
accused for the charges levelled against them. Accordingly, he
prays to dismiss the appeal.
12. We have given our anxious consideration both on
the argument advanced by the both the learned counsel for the
parties so also comprehensively perused the evidence on
record. The point that surface for our consideration is:
"Whether the learned Sessions Judge is justified
in acquitting the accused/respondents for the
offences charged?"
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13. As could be seen from the records, in order to prove
the charges leveled against the accused, the prosecution has
predominantly relied the evidence of PW.1-complainant/victim
and PWs.3 and 5-the eyewitnesses to the incident. On careful
perusal of the evidence of PW.1, he has deposed that on
26.11.2019 at about 09-9:30 a.m. the accused No.1 came to
the plot with a JCB, when he questioned him, accused No.1
assaulted on his head with a rod and accused Nos.2 and 3 also
joined and assaulted him. However, in the cross examination
he has admitted that he has no such ill-will with accused No.3
who is a Engineer by profession. Further, according to him, his
brother is the scribe of Ex.P1-complaint and he has not stated
in Ex.P1 about the assault made by accused No.3. Hence,
according to PW.1, the specific overt act attributes against
accused No.1 since he had caused the head injury to him. The
eyewitnesses PWs.3 and 5 though supported the case of
prosecution, deposed in their cross-examination that the
alleged incident caused near Jabbar Function Hall. According to
PW.1, the incident caused in front of the flat situated in
Sy.No.106 at Kalaburagi. Further, it is also admitted that there
is a dispute pending between PW.1 and accused No.1 in respect
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of a flat, as such accused No.1 went near the flat in a JCB.
Admittedly, accused Nos.2 and 3 were not visited the spot
along with accused No.1. Further, both PWs.3 and 5 were
stated that they did not made any attempt to shift PW.1 to the
Hospital after the incident. According to them, they both did
not give their statement before the appellant-Police under
Section 161 of Cr.P.C. Nevertheless, as rightly contended by
the learned counsel for the respondent PW.4-Doctor who
treated PW.1 has admitted in her evidence that there is an
overwriting with regard to date of admission of PW.1 in the
Hospital and she cannot say the age of fracture. In such
circumstance, there arise a doubt in the genesis of the crime.
Hence, overall perusal of the evidence, the participation of
these respondents in the alleged incident is appears to be
doubtful. This being the appeal against acquittal, the Hon'ble
Apex Court in the case of H.R.Sundara And Others Vs. State
Of Karnataka reported in (2023) 9 SCC 581, summarized
the principles to exercise the power by the Appellate Court to
interfere in the order of the Sessions Court in paragraph No.9
as under:
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"9. Normally, when an Appellate Court exercises
appellate jurisdiction, the duty of the Appellate
Court is to find out whether the verdict which is
under challenge is correct or incorrect in law and on
facts. The Appellate Court normally ascertains
whether the decision under challenge is legal or
illegal. But while dealing with an appeal against
acquittal, the Appellate Court cannot examine the
impugned judgment only to find out whether the
view taken was correct or incorrect. After re-
appreciating the oral and documentary evidence,
the Appellate Court must first decide whether the
Trial Court's view was a possible view. The Appellate
Court cannot overturn acquittal only on the ground
that after re-appreciating evidence, it is of the view
that the guilt of the accused was established beyond
a reasonable doubt. Only by recording such a
conclusion an order of acquittal cannot be reversed
unless the Appellate Court also concludes that it was
the only possible conclusion. Thus, the Appellate
Court must see whether the view taken by the Trial
Court while acquitting an accused can be reasonably
taken on the basis of the evidence on record. If the
view taken by the Trial Court is a possible view, the
Appellate Court cannot interfere with the order of
acquittal on the ground that another view could
have been taken."
14. Further, the Hon'ble Apex Court in the case of
Mallappa And Others v. State Of Karnataka reported in
(2024) 3 SCC 544 while summarizing the principles in dealing
with the appeal against acquittal in paragraph No.42 held as
under:
"42. Our criminal jurisprudence is essentially based
on the promise that no innocent shall be condemned as
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guilty. All the safeguards and the jurisprudential values
of criminal law, are intended to prevent any failure of
justice. The principles which come into play 9 AIR 1961
SC 715 while deciding an appeal from acquittal could be
summarized as:
(i) Appreciation of evidence is the core element of a
criminal trial and such appreciation must be
comprehensive - inclusive of all evidence, oral or
documentary;
(ii) Partial or selective appreciation of evidence may
result in a miscarriage of justice and is in itself a
ground of challenge;
(iii) If the Court, after appreciation of evidence, finds
that two views are possible, the one in favour of the
accused shall ordinarily be followed;
(iv) If the view of the Trial Court is a legally plausible
view, mere possibility of a contrary view shall not
justify the reversal of acquittal;
(v) If the appellate Court is inclined to reverse the
acquittal in appeal on a re-appreciation of evidence, it
must specifically address all the reasons given by the
Trial Court for acquittal and must cover all the facts;
(vi) In a case of reversal from acquittal to conviction,
the appellate Court must demonstrate an illegality,
perversity or error of law or fact in the decision of the
Trial Court."
15. Hence, on collocating the principles summarized in
the above judgment to the facts and circumstances of this
case, we are of the considered view that the prosecution has
failed to place sufficient evidence to prove the charges levelled
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against the accused/respondents No.1 and 2 beyond
reasonable doubt.
16. In that view of the matter, we decline to interfere in
the judgment passed by the Sessions Court. Accordingly, we
answer the point raised above in the affirmative and proceed to
pass the following:
ORDER
The Criminal Appeal is dismissed.
Sd/-
(S.SUNIL DUTT YADAV)
JUDGE
Sd/-
(RAJESH RAI K)
JUDGE
HKV
CT: PS
