[Cites 6, Cited by 0]
Karnataka High Court
C H Ravikumar vs Krishnakumar on 31 January, 2026
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31st DAY OF JANUARY, 2026
PRESENT
THE HON'BLE MR. JUSTICE H.P.SANDESH
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.489/2023
BETWEEN:
1. C.H. RAVIKUMAR
AGED ABOUT 54 YEARS
S/O LATE HUCHANNA
RESIDING AT
CHOTTANAHALLI VILLAGE
KASABA HOBLI
KUNIGAL TALUK. ... APPELLANT
(BY SRI. C.H. JADHAV, SENIOR COUNSEL FOR
SRI. PRADEEP KUMAR S.P., ADVOCATE)
AND:
1. KRISHNAKUMAR
S/O LATE DASEGOWDA
AGED ABOUT 58 YEARS
R/O KANNAGUNI VILLAGE
KUNIGAL TALUK
TUMAKURU DISTRICT.
2. SHANKAR GOWDA B.N.,
(SHOWN AS D.SHANKAR @ B.N.S.GOWDA
IN TRIAL COURT JUDGMENT)
2
AGED ABOUT 44 YEARS,
R/O NO.142, 6TH MAIN
HANUMARIGI HILLS LAYOUT
AREHALLI, BENGALURU
OCC: ASSOCIATE PROFESSOR
BANGALORE INSTITUTE OF TECHNOLOGY
3. B.N. JAGADISH
S/O D. NAGARAJAIAH,
AGED ABOUT 38 YEARS
R/O NO.36, 2ND CROSS
7TH MAIN, BSK III STAGE
BENGALURU-560085.
4. STATE OF KARNATAKA
BY KUNIGAL POLICE
REP. STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
BENGALURU-560001. ... RESPONDENTS
(BY SRI. S. SHANKARAPPA, ADVOCATE FOR R1 TO R3;
SMT. RASHMI PATEL, HCGP FOR R4)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
OF CR.P.C PRAYING TO ALLOW THIS APPEAL FILED BY THE
APPELLANT IN CRL.A.NO.51/2018 AND SET ASIDE THE ORDER
PASSED BY THE VI ADDITIONAL DISTRICT AND SESSIONS
JUDGE, TUMAKURU VIDE ORDER DATED 28.11.2022 AND ALSO
SET ASIDE THE ORDER PASSED BY THE LEARNED J.M.F.C.,
KUNIGAL, IN C.C.NO.400/2005 DATED 26.07.2018 AND
CONSEQUENTLY CONVICT THE ACCUSED/RESPONDENTS NO.1
TO 2 FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 323,
324, 326, 504 R/W SECTION 34 OF IPC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 22.01.2026 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
3
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
AND
HON'BLE MR. JUSTICE VENKATESH NAIK T
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE H.P.SANDESH)
1. Heard the learned counsel for the appellant and
also the learned counsel for the respondent Nos.1 to 3 and
the learned High Court Government Pleader for respondent
No.4.
2. This appeal is filed against reversal of conviction
order passed by Appellate Court for offences punishable
under Section 323, 324, 326 and 504 read with Section 34
of Indian Penal Code (hereinafter referred to as IPC).
3. The factual matrix of case of prosecution before
the Trial Court is that on 01.03.2005 at about 9:30 a.m., in
Mahatma Gandhi Government College Kunigal ( a counting
center for Grama Panchayath Election for Chottanahalli and
other Grama Panchayat) premises the accused persons by
sharing common intention have abused P.W.1 in a filthy
language and assaulted the P.W.1 and P.W.2 with their
hands and accused No.1 has voluntarily assaulted P.W.2
with a stone on his shoulder and accused No.1 voluntarily
hit a blow to P.W.1 with a stone on his head and caused
nasal bone fracture. Based on the statement of P.W.1, case
is registered and investigated the matter and filed the
charge sheet against accused No.1 to 3. The accused were
secured and they did not plead guilty and hence, they
claimed trial and prosecution examined P.W.1 to P.W.14
and also got marked Ex.P.1 to Ex.P.11(b). Accused have
not lead any evidence and accused persons were subjected
to 313 statement and incriminating circumstances were
denied and only portion of Ex.D.1 was marked confronting
the same to the prosecution witness and no material
objects are marked on behalf of the prosecution. The Trial
Court having considered the evidence of witnesses,
answered all the points as affirmative in coming to the
conclusion that prosecution has proved the case against the
accused persons and convicted and sentenced the accused
No.1 to 3.
4. Being aggrieved by the judgment of conviction
and sentence by the Trial Court, the accused persons have
preferred an appeal in Crl.A.No.45/2018 and injured P.W.1
has also filed an appeal in Crl.A.No.51/2018 questioning the
sentence imposed by the Trial Court was less is not
commensurate with the offence and both the appeals were
heard and disposed of by the First Appellate Court. The First
Appellate Court allowed the appeal filed by the accused
persons and acquitted the accused persons by setting aside
the judgment of conviction and sentence of the Trial Court
and consequently, the appeal filed by the injured victim is
dismissed.
5. Being aggrieved by the acquittal, the present
appeal is filed by the complainant P.W.1. The main
contention of the counsel who appears on behalf of the
appellant that accused No.1 took out the chopper and
assaulted the P.W.1. The accused Nos.2 and 3 are the sons
of the MLA. The P.W.1 suffered injury of fracture of nasal
bone. The counsel would submits that the incident was
taken place at 9:30 a.m., and even Police were also present
in the counting center and several other persons were also
gathered and witnessed the incident. The counsel would
submits that P.W.9 is the Doctor who has examined the
injured i.e., P.W.1 and P.W.2 and issued the wound
certificate Ex.P.6 and Ex.P.7. It is also the case of the
injured that he also took the treatment at Victoria Hospital.
The prosecution mainly relies upon the evidence of P.W.1 to
P.W.5 and also the evidence of the Doctor-PW9 and other
Doctors who treated the injured.
6. The witness P.W.3 is also an eye witness and
P.W.1 and P.W.2 have suffered the injuries and P.W.3 is
brother of P.W.1 and P.W.2. The P.W.4 and P.W.5 are
independent witnesses, but not supported the case of
prosecution. The documentary evidence is very clear that
P.W.1 had suffered the fracture of nasal bone and Ex.P.1 is
the complaint wherein specifically made the statement in
the Hospital when the Police went and recorded the
statement. The counsel would submits that P.W.1 was
hospitalized for one day and P.W.2 took treatment as an
outpatient. The witness was examined after 8 years and
there were minor discrepancies in the evidence of P.W.1 to
P.W.3 and the First Appellate Court magnified the minor
discrepancies and acquitted the accused persons and the
very approach of Appellate Court is erroneous. The Trial
Court rightly answered all the points for consideration
considering both oral and documentary evidence and while
reversing the same by the First Appellate Court, not
considered the evidence in a proper perspective. It is the
evidence of P.W.1 that incident was taken place in a
counting place and each accused role has been attributed
by the P.W.1 in his evidence. The counsel would submits
that ofcourse corroboration by independent witnesses is an
indispensable tool in cases where the prosecution is
primarily based on the evidence of seemingly interested
witnesses. The P.W.1 has deposed about the injuries
caused to him by the accused persons. He has stated the
same before the SHO, duty Doctor and also before the
Victoria Hospital and P.W.2 also deposed in corroboration to
his evidence particularly about the nature of injuries and
who is responsible for those injuries and fails to take note
of all these factors. Even though Trial Court considered the
nature of injuries of fracture and also the evidence of P.W.1
to P.W.3 is consistent and hence, it requires interference in
setting aside the order of the Appellate Court and confirmed
the judgment of the Trial Court and also imposed adequate
sentence by allowing the appeal filed by the victim.
7. Per contra, the counsel appearing for the
respondents would vehemently contend that the very
genesis of the case is doubtful and the same is taken note
of by the First Appellate Court and though Trial Court
committed an error and the same is properly appreciated,
there are contradictions in the evidence of P.W.1 and P.W.1
says that he was assaulted under the beneath of shamiana
which was put in the counting center and the evidence of
P.W.13-Doctor is very clear that when he went to Victoria
Hospital wherein he has stated that incident was taken
place in Room No.6 and these material contradictions were
taken note of by the First Appellate Court that the very
place of incident is not proved. The counsel would submits
that it is a case of the prosecution that P.W.1 and P.W.2
had sustained the injury, but P.W.1 went to Hospital at
9:45 and not disclosed the name of the assailants and also
even P.W.2 went to Hospital at 11 'O' clock and he also did
not disclose the name of the assailant, but P.W.1 gives
history that assault was made with stone, but the evidence
of P.W.1 is that accused No.1 assaulted with chopper which
he brought and kept the same behind him. The counsel also
would submits that when the injured went and took the
treatment even in Victoria Hospital also did not disclose the
name of the assailant and hence, it is clear that it is a clear
case of concoction. The counsel submits that statement was
recorded by P.W.12 and even while giving the statement
before the P.W.10, different version is given. Even admitted
that in Ex.P.8 there is a correction in respect of place of
incident. The counsel also would vehemently contend that
witness categorically admits that there is a delay in
registering the case and sending the same to the Court.
Though incident was taken place according to the
prosecution that time it was on 01.03.2005, but FIR was
reached to the Court on 02.03.2005 and the same has not
been explained and the same is admitted by the witness.
8. The counsel would submits that in Ex.P.6 and
Ex.P.7 no name of assailant is mentioned. Apart from that it
is the case of the prosecution that other two witnesses,
P.W.3 took the injured along with other eye witnesses. But,
the wound certificate is very clear that P.W.1 and P.W.2
went on their own. The counsel submits that though witness
says that he has taken the X-ray, but X-ray is not produced
before the Court, but comes to the conclusion that injury is
grievous in nature and Trial Court accepted the same and
committed an error in convicting the accused for the
offence punishable under Section 326 of IPC. The Ex.P.3
Mahazar is dated 05.04.2005 and the same was drawn after
1 month 4 days and no explanation of spot inspection in
conducting the same after 1 month 4 days and hence,
taking into note of all these contradictions and material
evidence available on record, First Appellate Court rightly
comes to the conclusion that Trial Court committed an error
and it requires interference and there is no any consistency
in the evidence of P.W.1 to P.W.3 and rightly acquitted the
accused persons and hence, it does not require
interference.
9. In reply to this argument, the learned counsel
for the appellant would submits that the First Appellate
Court magnified the minor discrepancies and the same will
not go into the very root of the case of prosecution. The
counsel would submits that the statement of P.W.1 came to
be recorded by Head constable-P.W.10 in the Hospital and
thereafter case was registered and the evidence of P.W.1 is
consistent and categorically says that accused No.1 took
out chopper from his back side and assaulted on the head
and the same was snatched by the eye witnesses. The
counsel submits that evidence of P.W.1 to P.W.3 is
consistent and corroborated by medical evidence of P.W.9,
P.W.13 and P.W.14 and he had suffered fracture.
10. The counsel in support of his argument relies
upon the judgment reported in (2016) Supreme Court
cases 316 in case of Ramvilas V/s State of Madhya
Pradesh wherein held that the evidence of injured
witnesses is entitled to great weight and very cogent and
convincing grounds are required to discard the evidence of
injured witnesses.
11. The counsel also relies upon the judgment
reported in (1975) 3 Supreme Court Cases 311, in case
of Malkhan Singh and another V/s State of Uttar
Pradesh and the counsel referring this judgment would
contend that it is difficult to believe that injured person
would spare his real assailants and falsely involve another
person as responsible for causing injury.
12. The counsel also relies upon the judgment
reported in (2011) 6 SCC 288 in case of Brahm Swaroop
and Another V/s State of Uttar Pradesh wherein also it
is held that very witness to the occurrence has himself been
injured in the incident. The testimony of such witnesses is
generally considered to be very reliable as that it comes
with an inbuilt guarantee of his presence at the scene of
crime and is likely to spare his actual assailant and falsely
implicate someone.
13. Per contra, the counsel appearing for the
accused relies upon the judgment reported in (2021) 13
Supreme Court Cases 716 in case of Jaikam Khan V/s
State of Uttar Pradesh and counsel would vehemently
contend that when the related witnesses falling in the
category of neither wholly reliable nor wholly unreliable in
such cases, corroboratory evidence is necessary, absence of
corroboratory evidence, motive and other material
infirmities in prosecution case considering said infirmities,
conviction is not sustainable.
14. Having heard the learned counsel for the
appellant and also the learned counsel for the respondents
and also considering the principles laid down in the
judgments referred supra by both the counsel and this
Court has to analyze both oral and documentary evidence
available on record since there is a divergent finding and at
the first instance, Trial Court convicted and the same is
reversed by the First Appellate Court and whether such
reversal is erroneous and conviction by the Trial Court is
based on the material has to be re-analyzed by this Court.
Having re-analyzed both oral and documentary evidence
available on record, the point that would arise for our
consideration are:
1) Whether the First Appellate Court
committed an error in dismissing the
appeal filed by the appellant questioning
the inadequate sentence?
2) Whether the Appellate Court committed an
error in allowing the appeal filed by the
accused persons in acquitting them and
whether it requires interference of this
Court both on the sentence by the Trial
Court as well as reversal finding by the
Appellate Court ?
3) What Order ?
15. We have perused both oral and documentary
evidence and also given conscious approach with regard to
the material available on record i.e., oral and documentary
evidence. No doubt it is a case of prosecution that incident
was taken place in a counting center in connection with
elections are held. This Court has to take note of the
contents of the complaint Ex.P.1 and genesis of the
complaint. Having perused Ex.P.1, it is clear that statement
was made by the injured P.W.1 in the Hospital and he
specifically mentioned in the statement which was recorded
by P.W.10. He says that accused No.1 to 3 started
quarreling with him and scolded that he did not enter the
politics and abused in a filthy language and when they
came to assault him, he ran from that place and they
chased him and he was held near the place where shamiyan
was put and accused No.1 inflicted injury with the chopper
which was kept in his back side on his head and also
assaulted on his ear with the chair and caused injuries to
body and hence he had sustained bleeding injury. When his
brother C.H.Shankar was along with him, he was assaulted
by all the three accused persons with their hands and the
same was witnessed by Anandaswami and his another
brother Shivakumar and others pacified the galata and with
the help of his brothers ad also the Police, he went to
Hospital in an Auto rickshaw and he was brought by
Jagadeesh and hence, requested the Police to take action.
16. It is also important to note that the evidence
available before the Court that P.W.1 deposed before the
Court that on the date of incident, he says accused No.2
scolded him not to enter politics and threatened that he
would take away the life and after sometime, accused No.3
when he was sitting in the counting center, made galata.
The accused No.1 - Krishnakumar once again threatened
not to enter into politics and caused life threat and
immediately he took out the chopper and kept behind his
neck and assaulted with the same on his head. It is also his
evidence that all of them assaulted with iron chair on his
head and nose, as a result, his nose was opened and this
incident was witnessed by thousands of people gathered.
The Police who were there at the spot also helped him and
PSI- Balegowda instructed him to go to Hospital and also
secured an Auto rickshaw by himself and in the very same
Auto rickshaw, he himself and injured P.W.2, P.W.3-
Shivakumar, Ramaswamigowda went to Hospital and
thereafter Shivaraj also came to Hospital, but his evidence
is that accused called the Doctor and told not to give any
treatment to him, thereafter, he went to Victoria Hospital
and also he took treatment in the house itself for a period
of 15 days securing the Doctor and also he has given the
certificate issued by the Victoria Hospital and he gave the
statement before the Police in terms of Ex.P.1.
17. Having considered the evidence of P.W.1 in chief
examination and in Ex.P.1, statement made by him before
the Police. He says that when they have chased him, he
was held near the shamiyana and accused No.1 assaulted
with chopper which was kept behind his back on his head
and also fisted with the chair near the eye and also all over
the body. When his brother came to rescue him, all of them
assaulted him with their hands and this incident was
pacified by the witnesses who are present in the spot, but
in his oral evidence, he says that there was a threat by
accused No.2 that not to enter the politics and caused life
threat and thereafter, the accused No.3 when he was sitting
in the counting room, made galata suddenly and accused
No.1 also reiterated about not to come to politics and
suddenly he removed the machete which was kept behind
his back and assaulted with the same on his head and all
the three persons taken the chair and also assaulted on his
head and nose, as a result, his nose was injured, but the
same is not stated in Ex.P.1 and Ex.P.1 says that he
assaulted only with chopper, not with the iron chair and the
same was witnessed, but there is an improvement in the
evidence of P.W.1. It has to be noted that in Ex.P.1, he
categorically says that assault was made with machete, but
when the injured went to the Hospital, he makes the
statement with the Doctor that he was assaulted with
stone, not with the machete. But only during the course of
cross-examination, he says that he was assaulted with
machete, as a result, he had sustained bleeding injuries. In
respect of place of incident mentioned in Ex.P.1 and in his
oral evidence, there is a mismatch and both are different.
Apart from that the evidence of P.W.13-Doctor is also clear
that with regard to the place of incident is concerned,
P.W.13 Doctor says that when he was sitting in Room No.6,
an assault was taken place and the history was given before
the P.W.13 that in Room No.6 incident was taken place, but
with regard to the place of incident, averments in the
complaint and oral evidence is contrary that to the
statement made with the Doctor P.W.13 and history is
different from the evidence. Having taken note of the
evidence of P.W.9 - Doctor, in his evidence, he says that
the P.W.1 came and given intimation that he was assaulted
with stone, but the same is not spoken by P.W.1 during his
chief evidence and though P.W.9 says that he was referred
to the Victoria Hospital, but no document is placed.
18. It is also important to note that Ex.P.6-wound
certificate discloses that he came alone and not
accompanied with any of the witnesses. It is also important
to note that in the cross examination of P.W.1, he
categorically admits that where the incident was taken
place, Police bandobast was also there and thousands of
people were there, but none of the independent witnesses
have supported the case of P.W.1. In the cross examination
he says that incident was taken place near the shamiyana,
but not in Room No.6 or when he was sitting in the
counting room. It is also important to note that in Ex.P.1,
he says that all of them have assaulted his brother with
their hands, not with any of the weapon and also his
evidence that he has given the blood stained cloth to the
Police, but no such material object is produced before the
Court. Even none of the weapons are seized. He
categorically says that in his further statement, he did not
make any statement that accused No.1 assaulted him with
stone on his head and also on nose, but history given that
he was assaulted with stone when the counsel for accused
No.1 was cross examined him. When the counsel for
accused No.2 and 3 was cross examined him, he
categorically admits that there are 4 cases against him, but
he claims that false cases are registered against him. He
also admits that he did not make any statement with the
Police that they used plastic chair to assault him and also
he was having conscious, but he says in further chief that
accused No.1 to 3 abused in a filthy language and assaulted
with chair, but both of them informed the Police that they
assaulted with chair and the same was noted by the Doctor,
but Doctor evidence is very clear that P.W.9 says that
assaulted with stone and not with any chair or even any
machete.
19. The other witness according to the prosecution
P.W.2 who was also very much present and he says that
accused has chased his brother P.W.1 and accused No.1
assaulted with machete and his friends snatched the
machete from him and hence, accused No.1 also
immediately took the iron chair and assaulted on the face
and forehead. When he tried to pacify the incident, all the
accused persons assaulted with the chair and torn his cloth
and this is also an improvement in the evidence of P.W.2.
The P.W.1 says that assaulted him with their hands, but he
claims that assaulted with the chair and also stated that
accused No.1 took up the stone and assaulted with the
stone and the same was snatched by C.W.3 and thrown the
same. The C.W.3 and his friends took the injured to the
hospital, but P.W.1 says that both of them went together to
the Hospital. He also says that he took treatment at PHC,
Kunigal and then went to Victoria Hospital, but no
document of Victoria hospital is placed before the Court.
However, in the cross-examination he also admits that
before leaving inside the counting center, Police used to
check them and hence, question of taking the machete by
the accused No.1 is doubtful and also those who are having
pass only allowed inside and the very presence of the Police
is not in dispute at the spot. But, he claims that accused
No.1 assaulted with machete in front portion and also
assaulted with chair and the machete. The Police also
seized his cloth, but no such cloth before the Court and also
says that he had sustained injuries on the shoulder, but he
says that when he tried to pacify the scuffle, took out the
plastic chair and assaulted her, but P.W.1 says that
assaulted with iron chair and P.W.2 says that assaulted with
plastic chair. The P.W.1 in his complaint says that they
assaulted with their hands not with any weapon on the
P.W.2.
20. The other witness is P.W.3 who is also the
brother of P.W.1 and in his evidence he says accused No.1
with machete, chair and stone assaulted P.W.1 and accused
No.1 to 3 with the stone and plastic chair assaulted him and
also the P.W.2, but no wound certificate in respect of this
witness that he was subjected to assault. In the cross
examination, he also admits that there was a restriction to
enter the counting center and Police were also sitting near
the shamiyana and there were also other people, but he
says P.W.1 cloth was stained with blood, but he cannot say
whether blood was on the ground.
21. Having considered these evidence of P.W.1 to
P.W.3, the very presence of P.W.2 at the spot is doubtful
and though says that P.W.1 was taken to the hospital
immediately and P.W.1 evidence is contrary. The wound
certificate discloses that P.W.2 went to Hospital at 11:00
a.m., but P.W.1 went to hospital at 9:45 a.m., and the
wound certificate Ex.P.6 is very clear that he went alone
and also Ex.P.7 - wound certificate is very clear that he
went alone that is not accompanied with anyone to the
hospital and timings are also different, if both of them have
injured and both of them would have rushed to the hospital
at the same time, but P.W.1 went to hospital at 9:45 a.m.,
and P.W.2 went to hospital at 11.00 a.m. and also the
Ex.P.10 issued by the Doctor at Victoria Hospital wherein he
says that P.W.1 went to Hospital at 11.40 a.m., alone and
none of the witnesses mentioned the name of the accused
persons that they have assaulted and except stating that he
was assaulted by stone, P.W.1 not stated anything about
the name of the assailants and even when P.W.1 went to
the Victoria Hospital, there also he did not disclose the
same. The document Ex.P.10 says that X-ray was taken
and X-ray shows the fracture of nasal bone and wound is
grievous in nature and in order to prove the same, X-ray is
not placed before the Court, except deposing before the
Court that he has sustained the fracture and based on
clinical examination, Court cannot come to such a
conclusion and there must be an X-ray, in the absence of
document of X-ray, it cannot be decided that there was a
fracture.
22. The P.W.13 is another Doctor. In his evidence,
he deposed that Room No.6 is the place of incident as
history is given by injured, but he says that he took the
treatment before coming to him at Nimhans and with
regard to the history of assailants, no material is placed
before the Court and there was no any difficulty to produce
the same, but he says that it will be in the MLC, not in the
wound certificate, but even he has not produced any MLC
register to show that these accused persons have
assaulted. The witness P.W.13 says that second type of
injury could be caused if any person falls on the hard
surface and rolls down.
23. The other witness is P.W.14. He says that first
P.W.1 took the treatment at Kunigal Hospital, then he
examined him, he found two injuries, but he says that he
has given the certificate in terms of Ex.P.10, but not
produced the X-ray, though he claims that the X-ray was
taken. In Ex.P.10 he did not mention the age of the injury
and also he did not mention from which hospital he came
and also he admits that if any person falls on the hard
surface facing towards the ground if any sharp edged object
came in contact with the same there is a chances of
sustaining the injury which is mentioned in Ex.P.10. He also
admits that while mentioning in the wound certificate, he
did not even mention the weapon which was used for
assaulting him. The evidence of P.W.2 is also contrary to his
own statement as per Ex.P.2. The P.W.2 in his evidence
before the Court says that accused No.1 suddenly took out
the stone which was lying on the spot and assaulted on his
head and nose. He also says that the accused No.2 took out
the plastic chair and assaulted the P.W.1, but P.W.1 did not
say anything about the same, but says that accused No.3
Jagdeesh fisted him with hands, but there are discrepancies
that too a major discrepancies with regard to using of the
same and overt act. The P.W.1 says that assault with
machete, but P.W.2 in his statement in terms of Ex.P.2
assault with stone, but P.W.1 says that assault was made to
P.W.2 with the hands by accused No.1 to 3, but P.W.2 in his
statement says that he was assaulted with chair. All these
contradictions were taken note of by the Appellate Court
while considering the material on record and none of the
independent witnesses have supported the case of
prosecution except the interested witnesses P.W.1 to P.W.3
and they are brothers. The incident according to the
prosecution was taken place in the election counting center
and public were there and only P.W.10 while recording the
statement, he says that he has received the information
and then he went to record the statement, but P.W.1 says
that Inspector-Balegowda was very much present at the
spot and he only secured the Auto rickshaw and sent him to
hospital to take the treatment, but that is not the evidence
of the I.O who conducted the investigation that he was very
much present that is P.W.12. The evidence which was given
by P.W.1 to P.W.3 not matches with particularly with regard
to the place of incident, there are contradictions and also
with regard to the using of weapon for assault also there
are contradictions and even in respect of overt act in
respect of P.W.1 and P.W.2 is also different. Even if P.W.1
and P.W.2 were present at the time of the incident and
sustained injury, both would have gone to the Hospital
together and took the treatment. I have already pointed out
that wound certificate discloses different timings of P.W.1
and P.W.2 and with regard to weapon used, P.W.1 says that
it was stone as per the wound certificate, but in the
evidence he says that it was machete. It is also clear that
while giving permission to enter the counting center, the
Police who are deployed at the spot, they make the
checking and also those who are having pass only allowed
to the center. When such contradictions are found, the
same is evaluated by the Appellate Court that there are
material contradictions and not inspires the confidence of
the Court with regard to incident is concerned as well as
assault made with the particular weapon and also the
bloodstained clothes were also not seized and even weapon
was also not seized either the chair or machete. There is a
clear improvement in the evidence of each witnesses. It has
to be noted that according to the prosecution, incident was
taken place on 01.03.2005 and in terms of Ex.P.3- Mahazar
which was drawn on 05.04.2005 that too after lapse of
almost 1 month 4 days. Having taken note of all these
material contradictions, we do not find any error on the part
of the Appellate Court in reversing the judgment of the Trial
Court. All these material contradictions were not taken note
of by the Trial Court while convicting the accused. When the
evidence of P.W.1 to P.W.3 who are the star witnesses of
the prosecution was not reliable and not trustworthy and
hence, rightly accepted the contention of the
appellant/accused before the Appellate Court and set aside
the judgment of the Trial Court and consequently dismissed
the appeal filed by the appellant/victim for enhancement of
sentence is concerned. Hence, no ground is made out to set
aside the judgment of the Appellate Court in dismissing the
appeal filed by the victim and allowing the appeal filed by
the accused persons. Hence, we answer the points
accordingly.
24. In view of the discussions made above, we pass
the following:
ORDER
The Criminal Appeal is dismissed. If any Bond is
executed and the same are cancelled.
Sd/-
(H.P. SANDESH)
JUDGE
Sd/-
(VENKATESH NAIK T)
JUDGE
RHS
