Karnataka High Court
State Of Karnataka vs Bammu @ Bommu Ponde on 25 February, 2025
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CRL.A No. 100166 of 2017
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 25TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MS. JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO. 100166 OF 2017 (A)
BETWEEN:
1. STATE OF KARNATAKA
REPRESENTED BY
THE POLICE SUB-INSPECTOR
AMBIKANAGAR POLICE STATION,
HALIYAL CIRLCE, HALIYAL
THROUGH THE ADDL.
STATE PUBLIC PROSECUTOR
ADVOCATE GENERAL OFFICE
HIGH COURT OF KARNATAKA
DHARWAD BENCH
...APPELLANT
(BY SRI. JAIRAM SIDDI HCGP,)
Digitally signed by
MALLIKARJUN
RUDRAYYA AND:
KALMATH
Location: HIGH
COURT OF
1. BAMMU @ BOMMU PONDE
KARNATAKA
AGE:40 YEARS,
OCC:AGRICULTURE
2. VITTAL TUKARAM PONDE
AGE:MAJOR
OCC:AGRICULTURE
3. DHAKUBAI TUKARAM PONDE
AGE:50 YEARS,
OCC:HOUSEHOLD
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CRL.A No. 100166 of 2017
4. PARASHURAM
SUBBANNA KAMEKAR
AGE:36 YEARS,
OCC:AGRICULTURE,
5. VASANT RAMU ONDAGE
AGE:25 YEARS,
OCC:AGRICULTURE,
6. DHOLU TUKARAM PONDE
AGE:29 YEARS,
OCC:AGRICULTURE,
7. GANGUBAI BHIKKU PONDE
AGE:40 YEARS,
OCC:HOUSEHOLD
ALL ARE RESIDENT OF CHANDRASURYAVADA
BALASHETTYKOPPA
...RESPONDENTS
(BY SRI. A .P .MURARI, ADVOCATE FOR R1 TO R7)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378
(1) AND (3) OF CR.P.C., SEEKING TO GRANT SPECIAL LEAVE
TO APPEAL AGAINST THE JUDGMENT AND ORDER OF
ACQUITTAL DATED 13.02.2017 PASSED BY THE LEARNED
J.M.F.C., HALIYAL IN C.C.NO.153/2011 AND TO SET ASIDE THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 13.02.2017
PASSED BY THE JMFC, HALIYAL IN C.C.NO. 153 OF 2011 AND
TO CONVICT THE RESPONDENT /ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 143, 144, 147, 148, 323, 324,
355, 504, 506 READ WITH SECTION 149 OF IPC, IN THE
INTEREST OF JUSTICE AND EQUITY
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CRL.A No. 100166 of 2017
THIS CRIMINAL APPEAL, HAVING BEEN HEARD AND
RESERVED ON 29.08.2024, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MS. JUSTICE J.M.KHAZI
JUDGMENT
(PER: THE HON'BLE MS. JUSTICE J.M.KHAZI)
This appeal filed under Section 378(1) and (3) of the
Code of Criminal Procedure (for short, 'Cr.P.C'), is by the
State challenging the judgment and order passed by the
Civil Judge & JMFC, Haliyal in C.C.No.153/2011 acquitting
the respondents/accused for the offences punishable
under Sections 143, 144, 147, 148, 323, 324, 355, 504,
506 R/w 149 of IPC.
2. For the sake of convenience parties are referred
to by their ranks before the Trial Court.
3. A charge sheet came to be filed against the
accused Nos.1 to 3, 6 to 9 for the offences punishable
under Sections 143, 144, 147, 148 323, 324, 355, 504,
506 R/w 149 of IPC.
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CRL.A No. 100166 of 2017
4. In respect of incident dated 07.12.2010 a
complaint came to be filed by Navalu Babu Mishale stating
that on the allegation that their cattle had trespassed into
the lands of their relative Bikku Bagu Konde and destroyed
crops the crops. In this regard on 07.12.2010 at 8-00
p.m. a panchayat was held. Accordingly, they went to the
place of meeting. As soon as the meeting started,
accused Nos.1 to 8 started quarreling and assaulting
them. Accused No.6-Parashuram and accused No.7-
Vasant Ramu caught hold of the complainant and accused
No.1-Bammu assaulted complainant with a club on his fore
head. Accused No.2- Vittal also assaulted him. Accused
No.7-Vasant Ramu assaulted complainant's brother Janu
Mishale (CW5) on his fore head. Accused No.4-Sakku
Bhikku Ponde assaulted (CW5) Janu Mishale with club on
his left cheek and right hand.
4.1 Accused No.3-Dhakubai Tukaram Ponde
assaulted CW7 Sakkubai with a club on her fore head and
accused No.5- Bagu Vannu Ponde with hands. Accused
No.2-Vittal Ponde assaulted CW6 Dondu Mishale with
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sickle on his head and accused No.1-Bammu Ponde
assaulted him with a stone near his neck. All the accused
person abusing them in filthy language and gave threat
saying that they would be eliminated. When the meeting
starting accused No.9-Gangubai demanded CW4 Janu
Mishale as to why he has called the meeting and assaulted
him with chappal.
4.2 One Balashetty Koppad and Demanna Gadekar
intervened and pacified the quarrel. All of them traveled
in the 108 Ambulance which had come to the spot and
took treatment at Government Hospital, Haliyal. The
motive for accused persons to assaulted them was that in
the panchayat elections they did not support the wife of
accused No.1 Bammu Ponde and on the allegations that
the cattle belonging to complainant had spoiled the crops
raised in the lands of accused.
5. Based on the complaint, the concerned police
registered the case in Crime No.8/2010. The injured have
taken treatment at Government Hospital, Haliyal. After
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detailed investigation the concerned police have filed
charge sheet against accused Nos.1 to 3, 6 to 9.
6. Accused Nos.1 to 3, 6 to 9 have pleaded not
guilty to charges leveled against them and claimed trial.
7. In support of the prosecution, PWs.1 to 14 are
examined, Exs.P1 to 11 and MOs.1 to 10 are marked.
8. During the course of their statement under
Section 313 of Code of Criminal Procedure, accused have
denied the incriminating evidence lead by the prosecution.
9. Accused have not lead any defence evidence.
10. The Trial Court acquitted the accused.
11. Challenging the same the State has filed this
appeal contending that the impugned judgment and order
is contrary to law, fact of the case and evidence on record
and as such it is liable to be set aside. PW1, 3 to 6 are
injured witnesses. They have specifically stated about the
overt acts of each of the accused persons and abusive
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words used by them. All of them have identified
weapons-MOs 1 to 7 and torn clothes at MO-8 to 10. Their
evidence is corroborated by PW12 the medical officer who
has examined and treated them and issued injury
certificates at Ex.P6 to 10. He has specifically stated that
the injuries sustained are possible, if assaulted with MO 1
to 7. The trial Court has not properly appreciated their
evidence and the documents. The trial Court has given
much importance to the evidence of PW9 to 11 who have
turned hostile and thereby discarded the testimony of
injured eye witnesses.
11.1 The trial Court has wrongly acquitted the
accused on the ground that labels were not affixed on MOs
1 to 10 with the signature of panch witness PW2 and he is
the relative of the injured. The reasons assigned are not
sustainable. It is contrary to the decision of the Hon'ble
Apex Court and this High Court wherein it is held that
mere interestedness and relationship perse is not a ground
to discard the evidence of injured. It only requires
scrutiny of their evidence cautiously. The evidence placed
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on record establish the guilt of the accused beyond
reasonable doubt. The impugned judgment and order
calls for interference by this Court and hence the appeal.
12. On the other hand, learned counsel for accused
supported the impugned judgment an order and sought for
dismissal of the appeal.
13. Heard the arguments and perused the record.
14. Thus, it is the definite case of the prosecution
that the cattle of complainant family had trespassed into
the land of accused persons and destroyed crops and in
this regard a panchayat was held and in the said
panchayat accused persons assaulted complainant and
other witnesses who are examined as PWs.1, 3 to 8. The
trial Court has disbelieved the evidence of these witnesses
on the ground that they are close relatives and
independent witnesses have turned hostile and not
supported them. As held in several decisions of the
Hon'ble Surpeme Court mere fact that the witnesses are
close relatives is not a ground to disbelieve their evidence.
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Rule of caution require that their evidence is scrutinized
carefully and rule out false implication.
15. No doubt PWs.1, 3 to 8 are close relatives. But
at the same time they are injured in the incident in
question. In fact defence admit that they have sustained
injuries, but come up with an explanation that while
transporting paddy in the bullock cart during night time,
they have fallen down and sustained injuries. In fact
suggestions to this effect are made to the medical officer
and also to PWs.1, 3 to 8. Of course, initial burden is on
the prosecution to prove the incident and that PW1, 3 to 8
have sustained injuries. On the other hand it is for the
accused to probabalize that the injuries sustained by PW1,
3 to 8 are due to fall from bullock cart while transporting
paddy.
16. Throughout PWs.1, 3 to 8 have consistently
deposed that on the allegations that their cattle trespassed
in the land of accused person and destroyed crops a
panchayat was held and even before they were
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questioned, accused No.9 assaulted PW3 with a chappal
and at this stage accused No.6 instigated the remaining
accused to assault the complainant and his family
members. Accused Nos.1 and 2 caught hold of PW1 and
accused No.1 assaulted with a stone on his fore head.
Accused Nos.7 and 8 assaulted PW4 with club on his eye.
Accused No.2 and 7 assaulted PW5 with a sickle on his
head. Accused No.3 and 5 assaulted PW6 with the club on
her fore head and all of them abused the complainant and
others. It appears knowing about the incident police came
to the spot and the injured were taken to the hospital and
treated.
17. PWs.1, 3 to 8 have identified the material
objects seized in this case as the one used by the accused
persons to assault them.
18. The accused persons have also taken defence
that accused No.6 is the President of Village Forest
Committee and he used to object them from cutting the
trees. Of course, they have denied the said suggestion.
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They have also denied that they suspected accused
persons indulging in black magic and for this reason also
their relationship was not cordial. According to the
prosecution, the cattle of these witnesses allegedly
trespassing into the land of accused persons and
destroying the crops and in that connection panchayat was
called was the motive for the accused persons to assault
PWs.1, 3 to 8. Even though they have admitted that
usually they transport paddy in the bullock carts but
denied that while so doing they fell down and sustained
injuries.
19. It is relevant to note that PW.6 Saggubai is
aged lady and PW8 is the woman. It is doubt full whether
they would also travel on the load of paddy in a bullock
cart during night time, especially when other men folk
were present in the family to do the said work. Even
though a suggestions made to PW.12-Dr.Giridhar Achari
that the injuries sustained by PW1, 3 to 8 are possible if a
person falls from bullock cart, no suggestions made to him
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that in fact the injuries sustained by PW1, 3 to 8 are due
to fall from the bullock cart.
20. PW.9-Demani Govind Gadekar, PW10- Bhagu
Lakku Shelke and PW.11-Dondu Vitthu Yadge are cited as
eye witnesses to the incident. Though they have stated
that they know the accused person and CWs.1, 4 to 10
(which includes PWs.1, 3 to 8), they have stated that they
have not seen the incident. During their cross
examination they have denied that they were present
when the incident took place and seen the accused
persons assaulting and abusing them.
21. It is pertinent to note that the accused persons
as well as the injured are resident of same village. They
are also related. Such being the case, the possibility of
these witnesses being tutored by the accused persons not
to speak against them cannot be ruled out. Merely
because there is no support from the independent
witnesses the interested testimony of injured cannot be
discarded, unless and until the defence establish that they
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are being falsely implicated. The incident took place on
07.12.2010 at 8.00 p.m. The injured were taken to the
hospital at 10.30 p.m. The complaint is recorded in
between 2 to 3 a.m. of 08.12.2010. The learned
magistrate has received the FIR at 5.30 p.m. on
08.12.2010. There is no inordinate delay in filing the
complaint. Consequently there was no chance of the
injured conspiring to falsely implicated to the accused
persons.
22. PWs.1, 3 to 8 are consistent in their assertion
that it was accused person who assaulted them. They have
also identified the material objects with which they were
assaulted. In fact PW2 who is witness to the spot
mahazar has clearly stated that the police seized the
material objects from the spot. Even though PW1 and 2
have stated that they do not know what is written in the
complaint at Ex.P1 and mahazar at Ex.P2 respectively,
their evidence corroborate with the contents of these
documents. Having regard to the fact that PW1, 3 to 8
have identified the material objects, mere fact that the
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I.O. has not chosen to paste slips on them with the
signatures of the mahazar witnesses would not belie the
prosecution case. Since testimony of PW1, 3 to 8 is
cogent, consistent and reliable, mere fact that PWs.9 to 11
have not supported the prosecution would not affect their
credibility.
23. PW.13- Krishna Avadani is the head Constable
who registered the case on the basis of complaint filed by
PW1. He has also visited to the spot, drawn the mahazar
and seized four clubs, a stone, a sickle, chappal and three
blood stained shirts through mahazar.
24. PW.14-Kallappa Nadkarni has conducted further
investigation and filed charge sheet. Except suggesting
that he has not recorded statements of any of the
witnesses and has not collected the injury certificates and
that he has filed charge sheet falsely implicating the
accused, nothing is elicited during his cross examination.
No suggestions are made to him that PWs.1, 3 to 8
sustained injuries due to fall from bullock cart etc..
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25. Through the oral and documentary evidence
placed on record, the prosecution has proved allegations
against accused beyond reasonable doubt. On the other
hand, the defence has failed to demonstrate that they are
falsely implicated. The findings of the trial Court is
inconsistent with the evidence lead by the prosecution and
as such perverse and liable to the set aside and the
accused persons are liable to be convicted for the offences
punishable under Sections 323 and 324 read with Section
34 IPC.
26. However, the ingredients of the offences
punishable under Sections 143, 144, 147, 148, 149 and
355 of IPC are not made out and accordingly the
following:
ORDER
(ii) Appeal filed by the State under Section
378(1) and (3) of Cr.P.C is partly
allowed.
(iii) The judgment and order dated
13.02.2017 in CC No.163/2011 on the
file of JMFC Haliyal is set aside.
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(iv) Accused No.1 to 3 and 6 to 9 are
convicted for the offences punishable
under Sections 323 and 324 R/w
Section 34 of IPC.
Sd/-
(J.M.KHAZI)
JUDGE
SMP
List No.: 19 Sl No.: 1
CT-NI
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CRL.A No. 100166 of 2017
IN THE HIGH COURT OF KARNATAKA AT DHARWAD
[STATE OF KARNATAKA VS. BAMMU @ BOMMU PONDE AND
OTHERS]
19.03.2025
(VIDEO CONFERENCING / PHYSICAL HEARING)
CORAM: HON'BLE MS. JUSTICE J.M.KHAZI
ORAL ORDER ON SENTENCE
Accused No s.1 to 3, 6 to 9 are produced through video
conferencing.
Learned counsel for accused Nos.1 to 3 and 6 to 9 and
learned High Court Government Pleader also present through
video conferencing.
Heard accused Nos.1 to 3 and 6 to 9 regarding sentence.
It is submitted by the learned counsel for accused that
the incident has taken place in a spur of moment when the
meeting was held to resolve the dispute of cattle of
complainant trespassing into the land of accused and
destroying the crops. This is the first offence committed by
them and lenient view may be taken.
On the other hand learned HCGP prays to impose
appropriate punishment on the accused persons.
Even though the charge sheet is filed for the offences
punishable under Sections 143, 144, 148, 323, 324, 355, 504,
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506 r/w Section 149 I.P.C, accused Nos.1 to 3 and 6 to 9 are
convicted only for the offences punishable under Section 323
and 324 I.P.C.
The punishment prescribed for the offence under Section
323 I.P.C is imprisonment of either description for a term which
may extend to one year or with fine which may extend to
Rs.1,000/- or with both.
The punishment prescribed for the offence under Section
324 I.P.C is imprisonment of either description for a term which
may extend to three years or with fine or with both.
As rightly submitted by the learned counsel for accused
that the incident in question took place in the meeting held in
the village regarding the cattle belonging to complainant
trespassing the land of accused persons and destroying the
crops. There are no previous antecedents of accused persons
involving in any criminal activity. Taking into consideration
these aspects, this Court is of the considered opinion that
sentencing accused to pay fine with default sentence would be
sufficient to meet the ends of justice and accordingly, the
following:
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ORDER
(i) Accused Nos.1 to 3 and 6 to 9 are sentenced to
pay fine of Rs.500/- each in default to undergo
simple imprisonment for 15 days each for the
offence punishable under Section 323 I.P.C.
(ii) Accused Nos.1 to 3 and 6 to 9 are sentenced to
pay fine of Rs.1,000/- each in default to
undergo simple imprisonment for one month
each for the offence punishable under Section
324 I.P.C.
(iii) If fine is paid the accused shall be released
forthwith.
(iv) The Registry is directed to furnish a set of copy
of this judgment and order to accused Nos.1 to
3 and 6 to 9 free of cost.
(v) Send a copy of this order to the trial Court
through e-mail.
Sd/-
(J.M.KHAZI)
JUDGE
RR
