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Karnataka High Court
Mr B M Thimmaiah vs The State on 23 February, 2026
-1-
CRL.A No.1206 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF FEBRUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO.1206 OF 2013
BETWEEN:
1. MR B M THIMMAIAH
S/O MUDLAPPA
AGED ABOUT 45 YEARS
2. B G VENKATESH
S/O GIRIYAPPA
AGED ABOUT 39 YEARS
3. LINGARAJU @ NINGA
S/O MUDLAPPA
AGED 38 YEARS
4. PRAKASH
S/O DODAIAH
AGED 25 YEARS
5. VENKATESH @ KUMBARARA VENKATESHA
AGED ABOUT 39 YEARS
ALL ARE AGRICULTURISTS,
R/O BYALADALU VILLAGE, KADUR TQ.,
CHIKMAGALORE DIST.-570002
...APPELLANTS
(BY SRI. P. P. HEGDE, SR. ADV. FOR
SRI. VENKATESH SOMAREDDI, ADV.)
AND:
1. THE STATE
REPRESENTED BY SAKHARAYAPATNA
POLICE, SAKHARAYA PATNA
KADUR TQ.
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CRL.A No.1206 of 2013
(REPRESENTED BY THE LEARNED
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE - 560001)
...RESPONDENT
(BY SRI. RANGASWAMY R., HCGP.)
THIS CRL.A. IS FILED U/S.374(2) CR.P.C BY THE ADV.
FOR THE APPELLANTS/ACCUSED 1 TO 5 PRAYING THAT THIS
HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE ORDER
DATED 30.11.2013/2.12.2013 PASSED BY THE I ADDL. DIST.
AND S.J., CHIKMAGALUR IN S.C.NO.58/2010 - CONVICTING
THE APPELLANTS/ACCUSED FOR THE OFFENCE P/U/S 143, 147,
323, 324, 504, 506, 342, 436, 427 R/W 149 OF IPC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 08.12.2025 AND COMING ON FOR
"PRONOUNCEMENT OF ORDERS" THIS DAY, THE COURT,
DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE G BASAVARAJA
CAV JUDGMENT
The appellants have preferred this appeal against the
judgment of conviction and order on sentence dated 30th
November, 2013 passed in Sessions Case No.58 of 2010 by the
I Addl. District & Sessions Judge, Chikkamagalur ("trial Court"
for short).
2. For the sake of convenience, the parties herein are
referred as per their status before the trial Court.
3. Brief facts leading to this appeal are that the PSI of
Sakharayapatna Police Station, Kadur Taluk, Chikkamagaluru
District laid the charge-sheet against accused 1 to 5 for the
offences punishable under Sections 143, 147, 323, 342, 324,
504, 506, 436 and 427 read with Section 149 Indian Penal
Code.
4. It is alleged by the prosecution that on 18th March,
2010 at 08.30 a.m. in Byaladalu Village, at the Fair Price shop
of PW1-B.T. Yathisha, all the accused formed unlawful
assembly and committed the offence of rioting. Accused No.1-
Thimmaiah voluntarily caused hurt to the complainant on his
teeth using his hand, accused No.3-Lingaraju, accused No.4-
Prakash caused simple hurt by assaulting the complainant on
his body. Accused Nos. 1 to 3 also voluntarily caused hurt to
PW2-Smt.Latha and caused bodily pain. Thereafter, accused
Nos.2 to 5 took PW1-Yathisha from his fair price shop and
confined in Kariyamma temple by locking the door. Accused
No.2-Venkatesh, voluntarily caused hurt to PW1-Yathisha using
a club. Further, all the accused gave threat to the life of PW1-
Yathisha and PW2-Smt. Latha and also abused in filthy
language.
5. Further, it is alleged that PW1-Yathisha used to run
Fair Price shop at Byaladalu Village, Kadur Taluk, for which
accused persons have obstructed. At that time, accused 1 and
3 committed mischief by setting fire to kerosene of extent of
1052 litres and destroyed the kerosene and food-grains kept in
the shop as well as properties kept in the house belonging to
PW1-Yathisha and caused loss to the tune of Rs.20,000/-.
Thereby, accused have committed the offences punishable
under Sections 143, 147, 342, 323, 324, 504, 506, 436 and
427 read with Section 149 of Indian Penal Code.
6. After filing the charge-sheet, case was registered in
CC No.276 of 2010. Thereafter, case was committed to the
Court of Sessions which was registered as SC No.58 of 2010.
In response to summons, accused appeared before the Court
and were enlarged on bail.
7. The trial Court has framed charges for alleged
offences, same were read over and explained to the accused.
Having understood the same, accused pleaded not guilty and
claimed to be tried.
8. To prove the guilt of the accused, in all, 14
witnesses were examined as PW1 to PW14, 26 documents were
marked as Exhibits P1 to P26 and 5 material objects were
marked as MOs1 to 5. On closure of prosecution side evidence,
statements under Section 313 of Code of Criminal Procedure
were recorded. Accused have totally denied the evidence of
prosecution witnesses, however, did not choose to lead any
defence evidence on their behalf. During the course of cross-
examination of prosecution witnesses, 21 documents were
marked as Exhibits-D1 to D21 and 6 material objects were
marked as MOs.1 to 6.
9. Having heard the arguments on both sides, the trial
Court has convicted the accused and passed sentence against
accused 1 to 5 to undergo simple imprisonment for a period of
3 years and to pay fine of Rs.10,000/- each for the offence
under Section 436 Indian Penal Code. Further, accused were
sentenced to undergo simple imprisonment for a period of one
year for the offence under Section 324 read with Section 149 of
Indian Penal Code. Further, to undergo simple imprisonment for
a period of 6 months for the offences punishable under Sections
143, 147, 323, 504, 506, 342 and 427 read with Section 149 of
Indian Penal Code. Being aggrieved by the impugned judgment
of conviction and order on sentence, appellants/accused 1 to 5
have preferred this appeal.
Submissions on behalf of the accused:
10. Learned Senior Counsel Sri P.P. Hegde, appearing
on behalf of Sri. Venkatesh Somareddi, Counsel for appellants,
would submit that the impugned judgment of conviction and
order on sentence is not sustainable neither in law nor on facts.
The trial Court has not properly appreciated the prosecution
evidence on record in legal perspective. The evidence of
prosecution is intrinsically untrustworthy, contradictory and
unreliable. The learned Sessions Judge has convicted the
accused on the evidence of PWs1 & 2, who are the spouses and
are interested witnesses. The learned Sessions Judge failed to
consider the documents Exhibits D1 to D21 marked by the
accused. PW1, who runs the fair price shop was not properly
distributing the food grains to the card-holders of Byladalu
village. Though the license to run the fair shop is cancelled,
PW1 was distributing the food grains. Accused tried a lot to
stop unlawful activities of PW1. They, on behalf of the
villagers, filed application before the Tahshildar, before the DC
and also before the Commissioner for Food and Civil Supplies.
But the unlawful activities of PW1 along with PW2, did not stop.
PW1 and PW2 know that these accused have played main role
in cancellation of the distributor-ship licence of PW1, and just in
order to take revenge against these accused, PW1 and PW2
concocted the story and filed the complaint.
11. PW1, in his evidence has stated that accused No.1-
Thimmaiah broke one of his teeth by hitting to his lower jaw.
But in the statements of Doctors, PW8 and PW9, there is no
evidence as to the same. PW1, in his evidence states that
stock book is destroyed due to fire. This clearly shows that in
order to safeguard himself and make the loss to the
Government, he concocted the story. The evidence of
prosecution is artificial and unbelievable. The learned Sessions
Judge has not taken into consideration the contradictions,
improvements and inherent improbabilities in the prosecution
case.
12. PWs3 to 7 are the eye-witnesses. Except PW6, all
others have turned hostile. His evidence is contradictory to the
evidence of PWs1 and 2. The evidence of PWs1 & 2 are not
consistent with the medical evidence. Further, the learned
counsel has pointed out the omissions and contradictions in the
evidence of material witnesses. He would submit that Exhibit
D1, the letter issued by the Tahshildar reveals that the license
of PW1-Yathisha was cancelled. The accused and other
villagers have been protesting against the illegalities committed
by PW1 in the ration distribution. Exhibits D1 to D21 are
produced by the defence. In the course of cross-examination,
the date of incident is shown as 18th March, 2010. On
15.03.2010 Deputy Commissioner passed an order (Exhibit D3)
suspending the licence of the fair price shop of PW1 and
directed Tahasildar to make alternative arrangements to
distribute the essential commodities.
13. On 18th March, 2010, the Tahshildar issued a
consequential order (Exhibit D1) directing the Secretary of
VSSN, Baanuru to prepare the stock found in the shop of PW1-
B.T. Yathisha in the presence of the villagers and also to take
alternative steps for distribution of ration to the card-holders.
These proceedings were initiated based on the serious
complaints by the villagers with respect to misuse of essential
commodities meant for distribution to the card-holders by PW1.
In fact, hundreds of villagers lodged the complaint on different
occasions against the illegalities of PW1 in distribution of
essential commodities to the card-holders.
14. On 23rd December, 2005 the Deputy Commissioner
passed an order suspending the licence of PW1. Vide Exhibit
D7, one more order was passed on 25th July, 2006 by the
Deputy Commissioner, Chikkamagaluru District and as per
Exhibit D8, PW1 was directed to give a bond/undertaking not to
repeat any such violations. But PW1 continued to misuse the
essential commodities meant for supply to the card-holders and
continued to sell the same illegally to third parties and was
making unlawful gains. Hundreds of villagers again submitted
a complaint dated 22nd September, 2009, and another
complaint dated 23rd October, 2009 as per Exhibit D10 was also
submitted to the Tahshildar by the villagers. The complaint
dated 20th October, 2009 in Exhibit D11 contains serious
allegations of misconduct and misuse of the essential
commodities by PW1. The said complaint dated 20th October,
2009 is also signed by hundreds of villagers. Mahazar was also
prepared by the Food Department on 13th October, 2009 in the
presence of villagers as per Exhibit D13, showing serious
discrepancies and illegalities committed by PW1.
15. The report dated 26.09.2009 was submitted by the
Tahshildar of the Kadur Taluk to the Deputy Commissioner
recommending the cancellation of licence of PW1. Exhibit D15-
Notice was also issued by the Tahshildar to PW1 as to why his
licence should not be cancelled. The Food Inspector submitted
a written complaint dated 17th February, 2010 to the Station
House Officer, Sakharayapatna Police Station to register a
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criminal case against PW1 for indulging in fraudulent acts
pertaining to the stock supplied to the Fair Price shop. Even
lorry bearing registration No.KA-32/4950 which was used by
PW1 for illegal sale of essential commodities, was seized on
17th February, 2010 by the Food Department as seen at Exhibit
D17. The said lorry was seized in the presence of villagers by
the Food Department as per mahazar-Exhibit D9. The stock in
the Fair Price shop of PW1 was verified on 17th February, 2010
in the presence of villagers and serious illegalities were found in
this regard and mahazar was drawn by officers of food
department on 18th March, 2010.
16. Exhibit P2-mahazar is signed by PWs4 and 5 as per
Exhibit P2(b) and (c). Both witnesses turned hostile and have
not supported the case of the prosecution.
17. PW6 has deposed in his evidence that, the police
rescued him when he was locked in the temple. The
Investigating Officer has suppressed this fact and created the
case against this accused stating that accused have assaulted
PW1. Therefore, PW6 is not an eye-witness and his name is
also not shown in the complaint. PW6 has not deposed
anything as to the alleged assault to PW2. On all these
grounds, it was sought for allowing this appeal.
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Submission on behalf of respondent-State:
18. As against this, the learned High Court Government
Pleader, Sri R.Rangaswamy appearing for respondent-State,
would submit that the prosecution has produced sufficient
materials to prove the guilt of the accused. Accordingly, trial
Court has properly appreciated the evidence on record in
proper perspective. Hence, he sought for dismissal of the
appeal.
19. Having heard the arguments on both sides and on
perusal of records, the following point would for my
consideration:
"Whether the trial court is justified in
convicting the accused for the offence punishable
under Sections 143, 147, 323, 342, 324, 504, 506,
436 and 427 read with Section 149 of Indian Penal
Code?"
20. I have examined the materials place before this
court. The investigating officer has submitted charge-sheet
against accused 1 to 5 for the offence punishable under
Sections 143, 147, 323, 342, 324, 504, 506, 436 and 427 read
with 149 of Indian Penal Code.
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21. It is alleged by the prosecution that on 18th March,
2010, the investigating officer submitted charge-sheet against
accused 1 to 5 for the aforesaid offences. It is alleged by the
prosecution that, on 18th March, 2010 at 10:30 am in Byaladalu
Village, Kadur Taluk the accused formed unlawful assembly and
committed the offence of rioting. Accused No.1-Thimmaiah
voluntarily caused hurt to the complainant by breaking a teeth
of lower jaw of PW1 by punching him. Accused No.3-Lingaraju
and accused No.4-Prakash caused simple hurt by assaulting the
complainant on his body. Accused 1 and 3 also voluntarily
caused hurt to PW2-Smt. Latha and caused bodily pain to her.
Thereafter, accused 2 to 5 took PW1 from Fair Price shop and
confined him in Kariyamma Temple by locking the door.
Accused No.2-Venkatesh voluntarily caused hurt to PW1 with
the help of club. Further, all the accused gave life threat to
PWs1 and 2, and also abused them in filthy language.
22. The case of prosecution is that PW1-Yatisha used to
run Fair Price shop at the said village for which these accused
have obstructed. Accused 1 to 3 committed mischief by setting
fire to kerosene to an extent of 1052 liters and destroyed the
food grains kept in the shop as well as properties in the house
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belonging to PW1 and caused loss to the tune of ₹20,000/- and
thereby, committed aforesaid offences.
23. This case arise out of the complaint filed by PW1 as
per Exhibit P1. In the complaint it is stated as under:
"ಈ ಮೂಲಕ ತಮ ೇ ೊಳ ವ ೇ ೆಂದ ೆ ಈ ನ ಾಂಕ
18.03.2010 ರಂದು ೆಳ ೆ! 8:30 ಗಂ#ೆಯ ಾನು ಾ%ಯ ೆ&ೆ
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*ೕಲFಂಡವರ aರುದb ಾನೂನು )ೕ/ಯ ಕ2ಮ ೈ ೊಳ ೇ ಾM ೋ) ೆ."
- 14 -
24. On the basis of the complaint, the Sub-Inspector of
Police, Sakhrayapatna Police Station registered case in Crime
No.32 of 2010 against accused 1 to 5 for alleged commission of
offences and submitted First Information Report to the court.
25. With regard to the offence punishable under Section
143 and 147 read with 149 of Indian Penal Code is concerned,
none of the prosecution witnesses have deposed in their
evidence that all the accused, having common object, formed
unlawful assembly, and in prosecution of the same, accused
committed the offences. Though there is no evidence to prove
the commission of offence under sections 143 and 147 read
with 149 of Indian penal code, the trial Court has convicted the
accused for said offences, which is not sustainable under law.
26. With regard to offence punishable under section
342 read with 149 of Indian Penal Code is concerned, in Exhibit
P1-complaint, it is stated that the accused 1 to 5 came to the
shop of PW1 and informed him to close the Fair Price shop, as
they have obtained permission from the Deputy Commissioner
Chikkamagaluru to which PW1 told that he has not received
any order from the Tahsildar or from the Food Inspector to
close the shop. Then the accused No.1-Thimmaiah punched
him on his mouth and caused injury. Thereafter, all the
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accused dragged him to Kariyamma temple and confined him in
the temple by locking the door. B G Venkatesh gave blow to
him with club on his left shoulder. Lingaraju, Prakash and
Venkatesh gave blow to PW1 with their hands all over his body.
27. PW1 has deposed in his evidence as to the reasons
for riot as stated in complaint-Exhibit P1. However, he has
deposed in his evidence that accused No.1-Thimmaiah punched
on his mouth, as a result, he has lost one tooth of his lower
jaw. Accused No.2-Venkatesh gave blow to him with club on
his left shoulder. When PW2-Latha came to rescue him,
accused 1 to 5 caught hold of her tuft and assaulted her with
their hands. Further, he has deposed that accused 1 to 5
dragged him on road to Kariyamma Temple and confined him in
the said temple by locking the Door. PW1 has also deposed
that accused No.1 has abused him stating "¸ÀƼÉêÀÄUÀ£Éà ¤£ÀߣÀÄß PÉƯÉ
ªÀiÁqÀÄvÉÛãÉ".
28. PW2-Smt. Latha has deposed in her evidence as to
the commencement of riot as stated by the PW1. In addition,
she has deposed that accused No.1-Thimmaiah, accused No.3-
Lingaraju caught hold of the collar of her husband and dragged
him. Accused 1 to 3 gave blow to PW1 with their hands.
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Accused No.3-Lingaraju has punched the mouth of her
husband. As a result, a tooth of his lower jaw was broken.
Thereafter, accused 1 to 5 dragged PW1 to Kariyamma Temple
and confined him there by locking the door. PW2 has also
deposed in her evidence that all the accused have abused PW1
in filthy language.
29. PW3-Smt. Sarojamma has deposed in her evidence
as to the accused assaulting PW1 with their hands and accused
number 1 to 5 dragging PW1 to Kariyamma Temple and
confining him in the temple by locking the door. She has also
deposed that accused have assaulted PW2. This witness was
treated as partly hostile witness and was cross-examined by
learned Public prosecutor.
30. PW4-Ravindra Nayaka, has not deposed anything
against the accused as to the alleged assault and wrongful
confinement of PW1 in Kariyamma Temple. He is treated as
partly hostile witness. Even in the cross-examination by the
Public Prosecutor, he has categorically denied the statement
said to have been recorded by the police under Section 161 of
Code of Criminal Procedure which is marked as Exhibit P11.
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31. PW5-Girish Nayaka said to be the mahazar witness,
has not fully supported the case of the prosecution.
32. PW6-Lakshman Nayaka has deposed in his evidence
that accused No.1-Thimmaiah and accused No.3-Lingaraju
assaulted PW1 with their hands and club. Accused have also
dragged PW1 to Kariyamma Temple and confined him there by
locking the door. Accused No.1-Thimmaiah, accused No.2-
Venkatesh and accused No.3-Lingaraju has caught hold of tuft
of PW2-Latha and dragged her.
33. PW7-Gangadharappa has not deposed anything
against the accused and turned hostile. Even in the cross-
examination made by the public prosecutor, he has
categorically denied as to the statement said to have been
recorded by the police under Section 161 of Code of Criminal
Procedure, which is marked as PW13.
34. PW8-Dr. Usha has deposed in her evidence as to
the medical examination and injuries sustained by PW1 as
shown in Exhibit P14.
35. PW9-Dr. Manjunath has deposed in his evidence as
to examination of PW2-Smt. Latha and having found the
injuries as shown in the Exhibit P15-wound certificate.
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36. PW10-M.V. Chandramurthy, Food Inspector, has
deposed in his evidence as to issuance of Exhibit P25.
37. PW11-Javaraiah, FSTO, Fire station,
Chikkamagaluru Town, has deposed in his evidence that on 18th
March 2010 at 8:30 pm when he was in the Fire Station, he
received message as to setting ablaze the Fair Price Shop of
PW1 situated at Byaladalu. Then, along with staff, he
proceeded in Fire Engine bearing Registration No.CAG-1738
and tried to extinguish the fire. He has deposed that the
kerosene and the items kept in the shop were burnt due to fire.
38. PW12-Sri Byrappa, Grama Panchayat Secretary has
deposed as to issuance of assessment extract pertaining to
assessment No.140-141 of Byaladalu village as per Exhibits P16
and P17.
39. PW13-D.C. Doddappa Gowda and PW14-M.
Vasantha Kumar, Police Sub-Inspector, have deposed as to
their respective investigation. Police have also conducted spot
mahazar near the Kariyamma temple.
40. With regard to offence under Section 324 read with
149 of Indian Penal Code is concerned, it is the case of the
prosecution that accused-B.G Venkatesh gave blow to PW1 with
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club on his left shoulder. The investigating officer has not
seized the alleged club used for commission of offence. Even in
the wound certificate-Exhibit P14 pertaining to injured, it is not
disclosed that Venkatesh has assaulted PW1 with club.
Investigating officer has not whispered anything as to the non-
seizure of the club said to have been used by the accused.
Therefore, there is no sufficient evidence to show that the
accused have voluntarily caused simple hurt to PW1 by means
of club. Accordingly, prosecution has failed to prove the offence
under Section 324 read with Section 149 of Indian Penal Code.
41. With regard to offence under Section 323 read with
149 of Indian Penal Code is concerned, to prove the guilt of the
accused, prosecution has relied on the evidence of PWs1 to 3
and also the wound certificate-Exhibit P14 issued by PW8-Dr.
Usha. She has deposed in her evidence that on 18th March,
2010 at about 10:30 am, PW1 came to the hospital with the
history of assault by Thimmaiah, Lingaraju, Prakash and
Venkatesh and has examined the injured and found the
following injuries:
Tenderness over left shoulder;
Abrasion over the lower back;
Pain in left leg;
Abrasion over left hand
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42. The Doctor has opined that all the injuries are
simple in nature. As per complaint-Exhibit P1, only accused
No.1-Thimmaiah has punched PW1 with his hands on his mouth
and caused pain. Accused Lingaraju, Prakash and Venkatesh
also punched PW1 with their hands all over body. PW1 has not
stated in the complaint as to the breakage of a tooth of his
lower jaw due assault by the accused. For the first time before
the court, PW1 has deposed that due to the assault made by
accused No.1-Thimmaiah, one tooth of his lower jaw was
broken. PW2-Latha, who is none other than the wife of PW1,
has also deposed the same in her evidence for the first time
before the court. Dr. Usha-PW8 has not whispered anything as
to breakage of a tooth as deposed by PWs1 and 2. Even the
wound certificate-Exhibit-P14 does not reveal as to the
breakage of tooth.
43. With regard to injuries caused to PW2-Latha is
concerned, prosecution has produced wound certificate issued
by Dr Manjunath-PW9. The wound certificate issued by the
Doctor as per Exhibit P15 reveals that she was admitted to
hospital on 18th March, 2010 at 12:15 pm with the history of
assault by Thimmaiah with bare hands, and she has sustained
the following injuries:
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Tenderness over both shoulders;
Tenderness over neck and chest;
Tenderness over back of scalp;
Tenderness on the back
Doctor has opined that all the injuries are simple in
nature.
44. Except the interested testimonies of PWs 1 to 3,
there is no corroborative evidence to substantiate the case of
the prosecution. Even the evidence of PW1 is not consistent
with the contents of Exhibit P1 and the medical evidence.
Evidence of PW1 is also substantiated by other material
witnesses. Admittedly, there is a dispute between the
complainant and the accused. The trial court has elaborately
discussed by referring the documents Exhibit D1 to D21. Since
there is enmity between the accused and the complainant prior
to the incident, it is not safe to believe the testimonies of PWs1
and 2 to convict the accused for the offence under Section 323
read with 149 of Indian Penal Code.
45. With regard to the injuries caused to PW2-Latha is
concerned, in complaint-Exhibit P1 it stated that the accused
Lingaraju and Thimmaiah assaulted PW2 with their hands. PW1
has deposed in his evidence that when PW2 came and
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intervened to rescue him, accused 1 to 5 caught hold of her tuft
and assaulted her with hands. PW2 has deposed in her
evidence that CW3-Lingaraju caught hold of her tuft, kicked
her, made her to fall and assaulted her with hand on her back
and all over her body. She has not deposed anything against
accused 1, 2, 4 and 5.
46. PW3-Sarojamma has deposed in her evidence that
all the accused have assaulted PW2.
47. PW9-Dr. Manjunath has deposed that he has
examined Smt. Latha who came to the hospital with history of
assault by accused No.1-Thimmaiah and he has examined and
found injuries as shown in Exhibit P15, wherein it is stated that
injured came with history of assault by Thimmaiah and she has
sustained tenderness over both shoulders, tenderness over
neck and chest, tenderness over back and scalp and tenderness
on the back. Doctor has opined that the injuries are simple in
nature. Evidence of PWs1 to 3 is not consistent with the
contents of complaint-Exhibit P1. The wound certificate and
evidence of PW9-Dr. Manjunath is also not consistent to the
contents of the complaint and evidence of PW2. Since there is
no cogent, consistent, corroborative and clinching evidence
before this court, the benefit of doubt shall go to the accused.
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Accordingly, the prosecution has failed to prove the offence
under Section 323 read with 149 of Indian Penal Code.
48. As regards to offence under Section 342 read with
149 of Indian Penal Code is concerned, it is stated in Exhibit
P1-complaint that except Thimmaiah, other accused dragged
PW1 to Kariyamma Temple and confined him in the Temple by
locking the Door. PW1 has deposed that accused 1 to 5
dragged him to temple and confined him in the temple by
locking the door. PWs2 and 3 have also deposed same. The
evidence of PWs1 to 3 are not consistent to the contents of
Exhibit P1. The wound certificate pertaining to PW1 reveals
that injured has sustained tenderness over left shoulder,
abrasion on the lower back, tenderness over left leg and
abrasion over left hand. If really accused 1 to 5 had dragged
PW1 from the place of incident till the Temple, he would have
sustained abrasion all over the body. Whereas, the wound
certificate reveals that he has sustained only abrasions on
lower back and left hand. Therefore, the evidence of PWs1 to 3
appears to be exaggerated and cannot be believed.
49. With regard to offence under Sections 504 and 506
read with 149 of Indian Penal Code is concerned, there is
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absolutely no evidence to constitute the offence under said
sections.
50. With regard to offence punishable under sections
436 and 427 read with 149 of Indian Penal Code is concerned,
the complaint-Exhibit P1 reveals that accused Thimmaiah and
Lingaraju set fire to the Fair Price shop. PW1 has deposed in
his evidence that accused 1 to 5 have set fire to his house
where he had kept kerosene in a room. Further, he has
deposed that he has informed this incident to his son-Naveen.
But the name of Naveen is not forthcoming in the complaint.
This evidence of PW1 reveals that PW1 was not present at the
time of setting fire to fair shop. The name of Naveen, who is
son of the complainant, is also not shown in the complaint. The
investigating officer has not cited him as witness and also not
examined by the prosecution for the reasons best known to the
investigating officer and the prosecution. PW2 has deposed
that accused No.1-Thimmaiah and accused No.3-Lingaraju set
fire to the Fair Price shop. PW3-Sarojamma has deposed that
she cannot say as to who has set fire to the Fair Price shop.
This reveals that there is no consistency in evidence of PWs1
and 2 and also the contents of complaint-Exhibit P1. PW2 has
admitted in her evidence that accused No.1 is her nephew and
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he was convicted in SC No.76 of 2005 on the file of Fast Track
Court, Bangalore for offence under Section 498A of Indian
Penal Code and has preferred appeal before the High Court in
Criminal appeal No.139 of 2006, which was allowed and
accused No.1 was acquitted.
Conclusion:
51. As discussed above, there is enmity between the
accused and the complaint regarding running of Fair Price
Shop. In this regard, the trial court has clearly discussed the
documents at Exhibits D1 to D21. For the foregoing reasons, it
is not reasonable to convict the accused based on the witness
of interested testimony PWs1 and 2 without any supporting
evidence. Viewed from any angle, I do not find any cogent,
convincing, clinching, corroborative, trustworthy or believable
legal evidence to convict the accused for alleged offences.
However, the trial court has convicted accused which is not
sustainable under law. Accordingly, I answer the point that
arose for consideration, in the negative.
52. In the result, I proceed to pass the following:
ORDER
i) Appeal is allowed;
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ii) The judgment of conviction and order on
sentence dated 30th November, 2013 passed in
Sessions Case No.58 of 2010 by the I Addl.
District & Sessions Judge, Chikkamagalur, is set
aside;
iii) Appellants/accused are acquitted of the offences
punishable under Sections 143, 147, 323, 342,
324, 504, 506, 436 and 427 read with Section
149 of Indian Penal Code;
iv) Bail bond of accused 1 to 5 shall stand cancelled;
v) Fine amount if any deposited by the accused,
shall be returned in accordance with law;
Registry to send the copy of this judgment along with trial
court records to the concerned Court.
Sd/-
(G BASAVARAJA)
JUDGE
lnn
