Karnataka High Court
State Of Karnataka vs Prapulchandra Kallanagouda ... on 6 April, 2023
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
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CRL.A No. 100476 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF APRIL, 2023
PRESENT
THE HON'BLE MR JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR JUSTICE T. G. SHIVASHANKARE GOWDA
CRIMINAL APPEAL NO. 100476 OF 2019 (A)
BETWEEN:
STATE OF KARNATAKA
REPRESENTED BY THE
POLICE SUB INSPECTOR,
VIDYANAGAR POLICE STATION,
THROUGH THE ADDL.
STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH. .. APPELLANT
(BY SRI. V.M.BANAKAR, ADDL SPP.)
VIJAYALAKSHMI
M KANKUPPI AND:
High Court of
Karnataka,
Dharwad
1. PRAPULCHANDRA KALLANAGOUDA RAYANAGOUDA
AGE. 64 YEARS,
OCC. AGRICUTLURE,
R/O. DEVANGA PET,
GOPANAKOPPA,
HUBBALLI,
DIST. DHARWAD-580023
2. ANIL S/O PRATHAMANATH PATIL
AGE: 46 YEARS,
OCC: AGRICULTURE,
R/O: LAST BUS STOP,
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CRL.A No. 100476 of 2019
DEVANGA PET,
GOPANAKOPPA,
HUBBALLI,
DIST: DHARWAD-580023.
3. SUNILKUMAR @ SUNIL
PRAMATHNATH PATIL,
AGE: 40 YEARS,
OCC: BUSINESS,
R/O: DEVANGA PET,
NADUVINA ONI,
HUBBALLI,
DIST: DHARWAD-580023.
4. RAYAPPA @ YALLAPPA
S/O HANAMANTAPPA HULAKIPPA,
AGE: 30 YEARS,
OCC: DRIVER,
R/O: MADHAVANAGAR,
NEAR MADEVAPPANA TEMPLE,
HUBBALLI,
DIST: DHARWAD-580032.
5. WILSON SAGAR ANTHONI
AGE: 29 YEARS,
OCC: PAINTING WORK,
R/O: GADAG ROAD,
JANATA QUARTERS,
H.NO.197, HUBBALLI,
DIST: DHARWAD-580020.
6. FARUK RAJAK BEPARI
AGE: 34 YEARS,
OCC: PAINTING WORK,
R/O: GADAG ROAD,
JANATA QUARTERS,
H.NO.197, HUBBALLI,
DIST: DHARWAD-580020.
7. BASAVARAJ SHIVANAND HITTALE
AGE: 30 YEARS,
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CRL.A No. 100476 of 2019
R/O: DEVANGA PET,
HUBBALLI,
DIST: DHARWAD-580 023.
8. SANDEEP BASAVARAJ MUNAVALLI
AGE: 29 YEARS,
OCC: STUDENT,
R/O: DEVANGA PET,
HUBBALLI,
DIST: DHARWAD-580 023.
9. SAMEER JAYAVANT MANE
AGE: 26 YEARS,
OCC: STUDENT,
R/O: VIJAYANANGAR,
MANASA APARTMENT,
1ST FLOOR, HORAVALAYA,
HUBBALLI,
DIST: DHAAWAD-580 021.
10. SHIVAKUMAR PRAPULCHANDRA RAYANAGOUDAR
AGE: 26 YEARS,
OCC: STUDENT,
R/O: DEVANGA PET LAST BUS STOP,
H.NO.124, HUBBALLI,
DIS: DHARWAD-580 023.
11. NINGAPPA RAYAPPA JATTAPPANAVAR
AGE: 30 YEARS,
OCC: AGRICULTURE,
R/O: GOPANAKOPPA MAIN ROAD,
NEAR BIRADEVAR TEMPLE,
HUBBALLI,
DIST: DHARWAD-580 023. .. RESPONDENTS
(BY SRI.S.H.MITTALKOD, ADVOCATE FOR
R-1, 5 TO 7, R-9 & 10;
SRI.MAQBOOL PATIL, ADV. FOR
SRI.K.L.PATIL FOR R-2, 3, 4, 8 & 11)
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CRL.A No. 100476 of 2019
THIS CRIMINAL APPEAL IS FILED U/S 378(1) AND (3) OF
CR.P.C. AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL
DATED 17/04/2018, PASSED BY THE V ADDL. DISTRICT AND
SESSIONS JUDGE, DHARWAD SITTING AT HUBBALLI IN
S.C.NO.96/2012 AND TO SET ASIDE THE JUDGMENT AND
ORDER OF ACQUITTAL DATED 17/04/2018, PASSED BY THE V
ADDL. DISTRICT AND SESSIONS JUDGE, DHARWAD SITTING
AT HUBBALLI IN S.C. NO.96/2012 AND CONVICT THE
RESPONDENTS / ACCUSED NO.1 TO 4) AND (6 TO 12) FOR THE
OFFENCES PUNISHABLE U/SEC.143, 147, 148, 363, 307 AND
295(A) R/W SECTION 149 OF IPC.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, T.G.SHIVASHANKARE GOWDA DELIVERED THE
FOLLOWING:
JUDGMENT
The State has challenged the judgment and order of acquittal dated 17.04.2018 passed in Sessions Case No.96/2012, by the Court of V Addl. District and Sessions Judge, Dharwad, sitting at Hubballi (for short 'the Trial Court'), acquitting accused Nos.1 to 4 and 6 to 12 of the offences punishable under Sections 143, 147, 148, 363, 307 and 295A read with Section 149 of IPC.
2. Respondents No.1 to 4 were accused Nos.1 to 4 and respondents No.5 to 11 were the accused Nos.6 to 12 before the Trial Court. For the sake of -5- CRL.A No. 100476 of 2019 convenience, the parties shall be referred to as per their status in the Trial Court.
3. The case pleaded by the prosecution is that, PW-6/Ratan Shivakumar Sangolli, PW-14/Gurujot Singh Ameja and CW-9/Vijaya Ramanatha Naika were the students of KLE Polytechnic situated at Munavalli, Vidyanagar, Hubballi town, in the year 2011. On 6th and 7th of April 2011, there was a College Annual Day in the complex of B.V.B. College campus situated at Vidyanagar, Hubballi. On 07.04.2011 at about 1.00 p.m., PW-6, PW-14, CW-9 and few of their friends were in the college campus, they eve-teased one Aishwarya Rayanagouda (daughter of accused No.1), who is also a student of the said college. For the said conduct of PW-6 and others, Aishwarya enraged herself, went and informed it to her father/accused No.1. Accused No.1 accompanied by other accused rushed to the B.V.B.College campus armed with rods and clubs, committed rioting and caught-hold of PW- -6- CRL.A No. 100476 of 2019 14, inflicted him the injuries on his head, forehead, neck, face, nose, forearm, ankle and back and removed his 'Pagadi' (turban) knowing fully well that it is a sentimental object worn by a Sikh person and thereby insulted his religious sentiment and made an attempt to commit his murder. Thereafter P.W.14 was dragged and kidnapped in a car asking him to show his other friends, took him near Visveswaranagar Sub-Jail, Hubballi, where also they inflicted him with several injuries and asked him to sit in the dicky of the car. However, PW-14 managed to escape from there. PW-14 after escaping from the clutches of the accused, went home and through his Manager i.e., PW-15/Chennappa Kallappa Salagar got scribed Ex.P25/complaint and set the law into motion in Crime No.25/2011 of Vidyanagar Police Station, Hubballi.
4. PW-16/Vishnu Nagappa Bajenaikara and PW- 17/Ashoka Gundappa Chauhana, the Police Officers -7- CRL.A No. 100476 of 2019 have investigated the case and charge sheeted the accused.
5. On receipt of the final report, a case has been registered in C.C.No.1615/2011 by the Court of II Additional J.M.F.C., Hubballi and after compliance of Section 207 of Cr.P.C. committed the case to the Court of Sessions. On receipt of the court records, the learned Principal District and Sessions Judge, Dharwad, registered the case in S.C.No.96/2012 and assigned the case to the V Additional District and Sessions Judge, Dharwad sitting at Hubballi. The accused stood trial and pleaded not guilty of the charges under Sections 143, 147, 148, 363, 307 and 295A read with Section 149 of IPC.
6. Prosecution has examined 17 witnesses as P.Ws.1 to 17, relied upon 46 documents as per Exs.P.1 to P46 and four material objects as M.Os.1 to
4. The accused were questioned under Section 313 of Cr.P.C., after hearing the both sides, the impugned -8- CRL.A No. 100476 of 2019 order came to be passed. Aggrieved by the same, the State has preferred this appeal on various grounds.
7. The trial court has assigned the reasons that the injuries sustained by PW-14 are all simple in nature. There is a lot of improvements post-filing of the complaint that an attempt is made to make the simple quarrel between the students into communal quarrel. The evidence of PW-14 is not supported by any of the independent witnesses. In the absence of independent witnesses, it is not proper to accept the testimony of PW-14 for the reason of various omissions, contradictions and improvements. The prosecution was not able to establish the charges and the evidence of the prosecution cannot be accepted that it has proved the charges. There is a cloud of suspicion and the worst part of the prosecution appears to be invoking religious sentiments to settle personal score of adolescents, which was never intended as found in the law of Penal Code and -9- CRL.A No. 100476 of 2019 thereby, the Trial court has extended the benefit of doubt.
8. We have heard the arguments of Sri V.M.Banakar, learned Additional S.P.P. appearing for the appellant/State, Sri.S.H.Mittalkod, Advocate for respondent nos.1, 5 to 7, 9 and 10, Sri.Maqbool Patil, learned counsel on behalf of Sri.K.L.Patil for respondent Nos.2, 3, 4, 8 and 11 and perused the records.
9. It has been argued by the learned S.P.P. that the evidence of PW-14 clearly explains what was transpired on the afternoon of 7.4.2011 he has been inflicted with severe injuries. The injury that has been sustained has been explained through treated doctor and the evidence of PW-14 is supported by PW-15, who is the scribe of Ex.P25/complaint. Though the prosecution has examined many of the witnesses, unfortunately, the fellow students of KLE Polytechnic and the Lecturers, who are the
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CRL.A No. 100476 of 2019eyewitnesses to the incident, have turned hostile. The evidence of PW-6 clearly explains the alleged incident on 7.4.2011 and the reason for the alleged incident. Hence, the evidence of all these witnesses sufficiently explain the alleged charges, but the trial court did not accept the same and the reasons assigned are not acceptable and therefore, the findings recorded by the trial court is erroneous and calls for interference.
10. Per contra, Sri.S.H.Mittalkod, learned counsel appearing for respondent Nos.1, 5 to 7, 9 and 10 has contended that except PW-14, there is no quality of evidence in the prosecution. The prosecution evidence is not inspiring the confidence of the court. The dispute is between the students, as there was a huge gathering, how one can carry the weapons like rod and club inside the guarded college campus is not explained. PW-14 himself admits absence of one Kabir in the incident, but he was
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CRL.A No. 100476 of 2019brought in as accused in the FIR. There is no allegation in the complaint that the Pagadi of PW-14 was touched by any of the assailants. But the case has been converted that there is an attack on the religious sentiment of PW-14. Considering all these aspects, the trial court has rightly appreciated the evidence that none of the witnesses defined as eyewitnesses have supported the prosecution. Since there is no incredible evidence, the small incident has been blown up. PW-14 has already been booked for eve-teasing the daughter of accused No.1/Aishwarya Rayanagouda. As a counter, this case has been foisted and the trial court is right in accepting the defence as more probable and in extending the benefit of doubt.
11. Further, Sri.Maqbool Patil, learned counsel appearing for respondent Nos.2, 3, 4, 8 and 11 has contended that there is an allegation in Ex.P25/complaint that the accused themselves were
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CRL.A No. 100476 of 2019apprising their names, so that PW-14 came to know their names. The accused were not known to PW-14 at any point of time and all of a sudden, their names have been arrayed in the FIR in the manner practiced by the Police while dealing with a habitual offenders. There is no test identification parade conducted, only on the basis of the photographs, identification has been carried out, which is not admissible in law. PW- 14 and his friends are the culprits, who eve-teased the girl student on the College Annual Day and some small incident might have taken place. For the reason of complaint has been filed against PW-14 for eve- teasing Aishwarya, her father and their relatives are being arrayed as the accused in order to counter the case filed against PW-14. The alleged incident took place in the college campus and it has been witnessed by many of the witnesses, but none of the witnesses, who have been examined before the trial court, have supported the prosecution. Hence, the trial court has rightly recorded that the simple quarrel of eve-teasing
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CRL.A No. 100476 of 2019being converted into religious sentiment to provoke the breach of peace in the society. Hence, the order of acquittal is proper and he supported the impugned judgment.
12. We have given our anxious consideration to the arguments addressed on both sides and perused the material on record.
13. The prosecution cited as many as 19 witnesses in the charge sheet, among them, it has relied upon the evidence of PWs-1 to 17. PWs-1, 2 and 3 are the panch witnesses. PWs-4 to 12 are the eye-witnesses. PW-13 is the treated Doctor. PW-14 is the complainant and the injured. PW-15 is the scribe of Ex.P25/complaint. PWs-16 and 17 are the Investigating Officers. Let us examine the weight of evidence that the prosecution has relied upon.
14. The testimony of PW-1 / Gangadhar Gurushiddappa Hugar, PW-2 / Siddappa Fakkirappa Sanniyavar and PW-3 / Sharifsab Dastagirsab Mulla shows that PW-1 was asked to
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CRL.A No. 100476 of 2019attest Ex.P1; PW-2 was asked to attest Exs.P1 and P3 and PW-3 was asked to attest Exs.P1 and P4. All the three were not aware of either spot inspection or any of the seizure of the CD or car effected by the Police, PW-3 is not aware of the seizure of two rods and one club. PW-1 was called to the Vidyanagar Police Station 4-5 years ago, he was made to attest the document. Same is the position of PWs-2 and 3. PW- 3 was not taken near B.V.B.College front gate nor taken to sub-jail and he was not aware of any of these things. Hence, the panch witnesses/PWs-1 to 3 have not supported the prosecution and turned hostile.
15. The testimony of PW-4/Druvaraja Kulkarni shows that he is the Principal of KLE Polytechnic. It is he, who informed the Police about the alleged incident. He was not aware of what was transpired and he has not seen the accused persons coming inside his college campus. He admits that PWs-6, 8, 14 and CW-9 are their college students, on 7.4.2011,
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CRL.A No. 100476 of 2019College Annual Day was going on and he saw a huge gathering in front gate of the college, he rushed to the spot, by seeing him, the students and public, who gathered, have scattered away. He informed the Police about this. Except this, PW-4 did not point out anything about the accident committing rioting armed with rods and clubs and inflicting any injury to PW-14 or removing his Pagadi by hurting his religious sentiments. He resiled from his previous statement as per Exs.P5 and P6.
16. The testimony of PW-5/Bhimappa Pashapura shows that he is the Peon of KLE Polytechnic. Before the court, he has resiled from his previous statements as per Exs.P7 and P8 claiming that he was not aware of any of the incident and he has not identified any of the accused persons in the photographs shown to him by the Police. Hence, he has completely given go-by to the prosecution case.
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CRL.A No. 100476 of 2019
17. The testimony of PW-6/Ratan Sangolli shows that he was the student of KLE Polytechnic and a friend of PW-14. On 7.4.2011, there was a College Annual Day; in the afternoon, he, PW-14 and CW-9 were talking and moving around the college, in front of them, Aishwarya was going. By misunderstanding that they are talking about her, she returned to them, threatened them that they are not aware of her and she is going to teach them a lesson. She went and informed it to her father. One hour later, he came to know about some galata and somebody in the college informed him to leave the college premises. So, he ran away from the college premises. Later he came to know that in the said galata, PW-14 has sustained injuries on his head and back. He has not seen M.O.1 nor any galata. According to prosecution, he was accompanied by PW-14 when the incident took place and he is an eyewitness, but PW-6 resiled from his previous statement at Exs.P9, 10 and 11. Though he speaks about the alleged galata, he did not speak in
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CRL.A No. 100476 of 2019support of having witnessed the alleged assault against PW-14 in the hands of the accused.
18. The testimony of PW-7/Maruti Bhavani shows that he is the Security Guard in the KLE Polytechnic. On 7.4.2011, there was a College Annual Day, but he was not aware of any galata nor he was shown any CD or 15 photographs where he has identified the accused persons. He has not witnessed anything and he resiled from his previous statement at Exs.P12 and P13.
19. The testimony of PW-8/Rakesh Raddera shows that he is a Diploma student in KLE Polytechnic in the year 2011. On 7.4.2011 at about 1.00 p.m., Aishwarya questioned him and his four friends as to why they are teasing her. When they clarified that they are not teasing her, she threatened that she will teach them a lesson. 30 minutes later, when he was near the stage of the college to receive the prize, 20 meters away from the stage, there was a galata.
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CRL.A No. 100476 of 2019Since he had not gone to that spot, he is not aware of what are all happened in the said galata. He has not seen the accused committing rioting or inflicting any injury to PW-14 or removing his Pagadi. He resiled from his previous statement at Exs.P14 and P15.
20. The testimony of PW-9/Pradeep Rachappa Angadi, PW-10/Savita Jagadish Yalasangi, PW- 11/Vijaya Premanath Patil and PW-12/Marigouda Gurupada Gouda Shettangoudar, who are the Lecturers of KLE Polytechnic, show that on 7.4.2011 at 1.30 p.m., some galata had taken place in their college and they were not aware of the particulars. They have not seen any incident of assault against PW-14 by the accused persons. PW-9 resiled from his previous statement as per Exs.P16 and P17. PW-10 resiled from his previous statement as per Exs.P18 and P19, PW-11 resiled from his previous statement as per Exs.P20 and P21 and PW-12 resiled from his previous statement as per Exs.P22 and P23. Hence,
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CRL.A No. 100476 of 2019the Lecturers, who witnessed the alleged incident, did not support the prosecution.
21. PW-13/Dr.B.H.Manjappa is the treated Doctor and he is the Medical Officer at KIMS Hospital, Hubballi. His testimony shows that on 7.4.2011 at 7.10 p.m., he has examined PW-14 and noticed contusion on his neck measuring 6 x 1 cm, abrasion measuring 4 x 3 cm. on left forehead, contusion on the left thigh, right ankle, right forearm and also pain and tenderness of his right face, nose and back for which he was being treated and issued the injury certificate as per Ex.P24 with an opinion that said injuries are simple in nature. His further opinion is that if there is assault by means of M.Os.1 to 3/rod and club, such injuries are possible and the at the same time, during the course of cross-examination, he also gives second opinion that if a person falls on a rough surface, such injuries are possible. Therefore, there are two opinions in the medical evidence, one in
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CRL.A No. 100476 of 2019favour of the prosecution and another in favour of the defence. Whether the defence is probabalised or whether the prosecution evidence is acceptable will be dealt with while appreciating the evidence of PW-14.
22. The testimony of PW-15/Chennappa Kallappa Salagara, the scribe of Ex.P25/complaint shows that, he accompanied the father of PW-14, who is his employer, to KIMS Hospital, Hubballi on coming to know that the accused have assaulted PW-14. In KIMS Hospital, PW-14 gave details about the incident, he has scribed it as per Ex.P25 between 9.30 a.m. to 10.00 p.m. of 7.4.2011. His cross-examination has brought out that only as per the instructions of PW- 14, he has written the names of the accused persons, who have inflicted the injuries. It is brought out that PW-14 has informed him that at the time of accused assaulted him, he fell down to the ground, PW-14 never told him that accused have removed his Pagadi, PW-14 never told him that accused persons held his
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CRL.A No. 100476 of 2019hair-tut and dragged him and for this reason, he did not write all these aspects in Ex.P25. The evidence of PW-15 clearly points out that when the complaint was filed, there was no allegation that Pagadi of PW-14 was removed by the accused nor was he dragged holding his hair-tut. This clearly explains why the trial court has not accepted the version of the prosecution that the accused have committed criminal act in hurting the religious sentiments of PW-14.
23. The testimony of PW-16/Vishnu Nagappa Bajenaikara shows that he was the A.S.I. at Vidyanagar Police Station, Hubballi. On 14.04.2011, he has arrested accused Nos.6 and 7 and produced them before the court. On 23.04.2011, he has seized Exs.P29 to P43/photographs, Ex.P44/CD under Ex.P2/mahazar produced by PW-14 in the presence of PWs-1 and 3. As we have already discussed, the evidence of PWs-1 and 3 shows that they were not aware of these things and they were made to attest
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CRL.A No. 100476 of 2019Ex.P2 at the instance of the Police, the only witness remains for appreciation is PW-14.
24. The testimony of PW-17/Ashok Gundappa Chauvan shows that he was the PSI of Vidyanagar Police Station, Hubballi and Investigating Officer. On 7.4.2011, he received Ex.P25/complaint and registered the FIR in Crime No.25/2011. On 8.4.2011 he has inspected the place shown to him by PW-7 and drawn mahazar as per Ex.P1 and also recorded his statement as per Ex.P12. We have already referred the evidence of PW-7, who did not support the prosecution. On different dates, PW-17 has recorded the statement of witnesses and on 2.5.2011, he has seized the car produced by accused No.1 under Ex.P3/mahazar, but it is not supported by independent panch witness. On 20.05.2011, he has arrested accused No.10, recorded his voluntary statement as per Ex.P46 and seized the rods and clubs at M.Os.3 and 4. As we have observed above,
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CRL.A No. 100476 of 2019the seizure at the instance of accused No.10 has not been supported by any of the witnesses. On receipt of the wound certificate and on completing the formalities, he has filed the charge sheet. His evidence did not point out that during the course of investigation, he came to know that the accused have hurt the religious sentiments of PW-14 by dismantling his Pagadi and holding his hair-tut and dragging him. This probabalises the evidence of PW-15, who scribed Ex.P25 in the KIMS Hospital as per the instructions of PW-14.
25. The star witness to the case is PW-
14/Gurujoth Singh Ameja, who is the complainant and the injured. His testimony shows that in the year 2011, he was studying in Diploma in Civil Engineering II year semester at K.L.E. Polytechnic, Hubballi. PWs- 4, 6 and CW-9 are his friends. On 7.4.2011, at about 1.00 p.m., he and his said friends were going inside the college. In the college garden, some gathering
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CRL.A No. 100476 of 2019was going on. At that time, 5-6 persons, all of a sudden rushed inside, by seeing them, all his friends ran away from the spot and the said 5-6 persons while asking him whereabouts of his friends by means of rod inflicted injuries on his head. He tried to enquire them as to why they are assaulting him, but they dragged him towards car, they put in a dicky and took him away. According to him, accused Nos.1 and 3 by means of M.O.3/rod, accused No.2 by means of M.O.4/club inflicted injuries and the other accused persons inflicted injury by means of stone. The entire college gathering including the teachers have witnessed the incident. In a Skoda car, he was carried away and they removed his Pagadi, dragged his hair-tut, thereby they hurt his religious sentiments. He was taken near sub-jail on the back side of the Hanuman temple, there also they assaulted him by means of rod asking whereabouts of his friends and they threatened him that they are going to kill him. When they dragged him to sit in the
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CRL.A No. 100476 of 2019dicky of the car, he escaped from them and rushed to Vidyanagar Police Station at 6.00 p.m. He was sent to KIMS Hospital for treatment. He gave the information to his parents and friends. They all came along with Police. He gave the complaint at Ex.P25 scribed through PW-15 at 8.00 p.m. According to him, accused with an intention to commit his murder, hurt his religious sentiments by removing his Pagadi and inflicted him injuries. He collected the video recorded by his friends and copied it to a CD and gave it to Police. Though he gave complaint about the presence of one Kabir as one of the assailants, but he was not seen in the video. He gave additional statement as per Ex.P26 that his religious sentiment has been hurt and also given 15 photographs to the Police as per Exs.P29 to P43.
26. This is the weight of the evidence that the prosecution is relying upon to bring home the guilt of the accused and the learned Additional SPP wants the
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CRL.A No. 100476 of 2019court to accept his evidence, in order to reverse the impugned judgment. In view of the above evidence and also the arguments addressed by both parties, the points that arise for our consideration are:
(i) Whether the trial court has wrongly appreciated the prosecution evidence?
(ii) Whether the impugned judgment is perverse, illegal and calls for interference?
Reg. Point No.1:
27. We have carefully perused the evidence referred to above. As we noticed, none of the panch witnesses i.e., PWs-1 to 3 have supported the prosecution; PWs-4 to 12 are the eyewitnesses to the incident, none of them supported except saying that there was a galata on 07.04.2011 in KLE Polytechnic campus. None of them were aware as to who has assaulted PW-14. PW-13 is the treated doctor, who gave dual opinion that an assault by means of M.O.3
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CRL.A No. 100476 of 2019and 4/rods and club may cause injuries referred in Ex.P24 sustained by PW-14. As we also noticed in the evidence of PW-15 that at the time of giving statement as per Ex.P25, PW-14 never whispered about the accused persons removing his Pagadi or holding hair-tut and hut his religious sentiment, but only comes from the mouth of PW-14 by Ex.P26/report on 2.5.2011. Interestingly, the alleged incident took place on 7.4.2011, but Ex.P26 came to light only on 2.5.2011 after lapse of 26 days of the incident. This has been narrated by PW-15 that there was no such statement given by PW-14 before him. Hence, much weight cannot be attached to Ex.P26. It is interesting to note that in Ex.P25, the information was recorded as per the statement of PW-14, but PW- 14 before the court states that one Kabir, whose name was referred as an accused, was not at all present at the spot when the alleged incident took place. This conduct of the PW-14 shows that he is
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CRL.A No. 100476 of 2019making some improvements in his version so as to make the case so serious.
27(a) We have also perused the statements of PW-14 during the course of his cross-examination. It has been brought out that he is not a regular student as he was a failed student and he was not expected to attend the College Annual Day, but on 7.4.2011, he along with his friends visits the college for which he has offered no explanation. When he was not a regular student, what made him to attend the College Annual Day, drawn inference against him that he was not a solicited guest. PW-14 admits that Aishwarya Rayanagouda was not his classmate and he was not knowing the accused persons prior to 7.4.2011. PW- 14 admits that Aishwarya has filed a complaint against him and his friends for eve-teasing her. According to him, his clothes were stained with blood, but no bloodstained clothes were seized by the Police nor collected by the treated doctor. According to him,
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CRL.A No. 100476 of 2019when he visited the Police Station, he gave a statement to the Police, but Police have not recorded the statement till he gives Ex.P25. This shows that what was transpired in the alleged incident was not fairly reported to the Police. What has been reported to the Police has been tainted with implication of third parties and it lacks certain information about the accused removing his Pagadi and holding hair-tut and hurting his religious sentiments. PW-14 claims that he knew the names of these accused persons very well and all these persons were known to him prior to 7.4.2011. If so, how could PW-14 be able to know the names of accused persons explains that something fishy is coming from the mouth of PW-14. One Kabir is not his friend nor he was present in the alleged incident, but his name has been referred in Ex.P25 as one of the assailants. PW-14 never disclosed to the Police that accused removing his Pagadi or holding his hair-tut, only 10 days later, he informed the Police. Contrarily, we seen from Ex.P26
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CRL.A No. 100476 of 2019that only after 26 days i.e., on 2.5.2011 he brings the said aspect to the notice of the Police for taking action. This clearly shows that PW-14 is making improvements and the reason is very clear that he wants to make the incident very serious and he tries to give a color of hurting religious sentiments. This shows the unfair conduct of PW-14 who blown the incident disproportionate to what was happened. Where were the weapons of offence when the incident took place and how the weapons came to be seized is only explained by PW-17, but it has not been supported by the independent witnesses. Even the testimony of PW-13 did not point out having examined M.Os.3 and 4 for giving opinion as per Ex.P24. In view of the admission of PW-14 that a case has been registered against him and his friends for eve-teasing Aishwarya, her father and her relatives have been arrayed as accused persons. The fact that PW-14 knew the names of accused persons shows that there was something more apart from
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CRL.A No. 100476 of 2019what was transpired on the date of incident. If the totality of the evidence of PW-14 is taken into consideration, his evidence lacks fairness and transparency and is not revealing what actually happened on the date of incident. Under such circumstances, the evidence of PW-14 requires corroboration. Unless corroborative evidence is placed before the court, it is dangerous to rely upon his testimony. As we have observed above, none of the eyewitnesses PWs-4 to 12 did able to explain what was transpired in the incident including the very friends of PW-14 against whom an eve-teasing case has been registered. Under such peculiar circumstances, mere medical evidence without corroborative evidence of PW-14 is not qualitative for acceptance. Hence, as we analyzed the discussion made by the trial court, the trial court has rightly appreciated the evidence and I do not find any illegality in appreciation of the evidence. Accordingly, we answer point No.1 in the negative.
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CRL.A No. 100476 of 2019Reg.Point No.2:
28. We have carefully perused the impugned judgment with reference to the evidence of PWs-13 and 14. The trial court has rightly observed that PW- 14 is an unwanted guest on 7.4.2011 to the College Annual Day. He and his friends eve-teased Aishwarya Rayanagouda and for that reason, a case has been registered against them. Thereafter, the alleged incident said to have came out where PW-14 implicated one Kabir and also he tries to blow disproportionately by dragging the religious sentiment into the incident. If a person, who is expected to give a fair information, suppresses certain aspects and blown certain acts, which were not at all happened, the trial court has rightly observed that he is not a reliable witness. We have also referred the evidence of PWs-13 and 14 in view of this interestedness and in the background of eve-teasing case filed against a person who is not required to be present on the date and time of the alleged incident, the trial court has
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rightly appreciated that he is not a trustful witness and we do not find any infirmity in the said finding recorded by the trial court. Hence, the trial court has rightly recorded its finding with proper reasoning in not relying on the evidence of the prosecution. We do not find anything in support of the prosecution to bring home the guilt of the accused beyond all reasonable doubt and there is no infirmity or illegality in the impugned judgment. Accordingly, we answer point No.2 in the negative.
29. In view of the discussion made above, we find that the evidence of the prosecution is not reliable and the defence has probabilized its defence that PW-14 might have sustained injuries due to self- fall and therefore, the defence is more probable. Under the facts and circumstances of the case, the appeal is devoid of merit and is liable to be dismissed.
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CRL.A No. 100476 of 2019
30. In the result, we proceed to pass the following:
ORDER
i) The appeal filed by the State is hereby dismissed being devoid of merit.
ii) The judgment and order of acquittal dated 17.04.2018 passed in Sessions Case No.96/2012, by the Court of V Addl. District and Sessions Judge, Dharwad, sitting at Hubballi, acquitting accused Nos.1 to 4 and 6 to 12 of the offences punishable under Sections 143, 147, 148, 363, 307 and 295A read with Section 149 of IPC, is hereby confirmed.
SD/-
JUDGE SD/-
JUDGE KNM List No.: 1 Sl No.: 44