Karnataka High Court
Leshappa Shivappa Alur vs Ganesh @ Ganappa on 29 May, 2023
1
IN THE HIGH COURT OF KARNATAKA, DHARWAD
BENCH
DATED THIS THE 29TH DAY OF MAY, 2023
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO. 100062 OF 2016 C/W
CRIMINAL APPEAL NO. 100197 OF 2016
IN CRL.A. NO. 1000062 OF 2016:
BETWEEN:
LESHAPPA SHIVAPPA ALUR
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O. MANTUR, TQ: HUBBALLI,
DIST: DHARWAD.
...APPELLANT
(By SRI.M.B.GUNDAWADE, ADVOCATE)
AND:
1. GANESH @ GANAPPA
S/O. SHEKHAPPA HALYAL,
AGE: 25 YEARS, OCC: AGRICULTURE,
R/O: MANTUR VILLAGE, TQ: HUBLI.
2. SHEKHAPPA S/O. AVANEPPA HALYAL
AGE: 61 YEARS, OCC: AGRICULTURE,
R/O: MANTUR VILLAGE, TQ: HUBLI.
3. MALLIKARJUN S/O. BASAPPA HALYAL
AGE: 36 YEARS, OCC: AGRICULTURE,
R/O: MANTUR VILLAGE, TQ: HUBLI.
2
4. IRAPPA @ VEERANNA S/O. BASAPPA HALYAL
AGE: 32 YEARS, OCC: AGRICULTURE,
R/O: MANTUR VILLAGE, TQ: HUBLI.
5. SHANKRAPPA S/O. ADVEPPA HALYAL
AGE: 31 YEARS, OCC: AGRICULTURE,
R/O: MANTUR VILLAGE, TQ: HUBLI.
6. SHARNAPPA S/O. SHANMUKHAPPA HALYAL,
AGE: 33 YEARS, OCC: AGRICULTURE,
R/O: MANTUR VILLAGE, TQ: HUBLI.
7. SHANMUKAPPA S/O. AVANEPPA
@ SHEKHAPPA HALYAL,
AGE: 65 YEARS, OCC: AGRICULTURE,
R/O: MANTUR VILLAGE, TQ: HUBLI.
8. PARAMESH S/O. NINGAPPA HALYAL
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O: MANTUR VILLAGE, TQ: HUBLI.
9. BASAVARAJ S/O. ADIVEPPA HALYAL
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O: MANTUR VILLAGE, TQ: HUBLI.
10 . RAVI S/O. SHEKHAPPA HALYAL
AGE: 30 YEARS, OCC: AGRICULTURE,
R/O: MANTUR VILLAGE, TQ: HUBLI.
11 . SHIVAPPA S/O. SHEKHAPPA HALYAL
AGE: 32 YEARS, OCC: AGRICULTURE,
R/O: MANTUR VILLAGE, TQ: HUBLI.
12 . SHIVAPPA S/O. KARABASAPPA HALYAL
AGE: 27 YEARS, OCC: AGRICULTURE,
R/O: MANTUR VILLAGE, TQ: HUBLI.
13 . BASAPPA S/O. NAGAPPA HALYAL,
AGE: 69 YEARS, OCC: AGRICULTURE,
R/O: MANTUR VILLAGE, TQ: HUBLI.
3
(SINCE DECEASED, APPEAL STANDS ABATED
V.O.DATED 24.01.2023)
14 . SUBHASH @ SUBHASHCHANDRA
S/O. BOODAPPA HALYAL,
AGE: 35 YEARS, OCC: AGRICULTURE,
R/O: MANTUR VILLAGE, TQ: HUBLI.
15 . PRAKASH S/O. BOODAPPA HALYAL
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O: MANTUR VILLAGE, TQ: HUBLI.
16 . SURESH S/O. BOODAPPA HALYAL
AGE: 39 YEARS, OCC: AGRICULTURE,
R/O: MANTUR VILLAGE, TQ: HUBLI.
(SINCE DECEASED, APPEAL STANDS ABATED
V.O.DATED 24.01.2023)
17 . STATE OF KARNATAKA
BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, AT DHARWAD
THROUGH RURAL POLICE, HUBBALLI.
....RESPONDENTS
(By SRI.K.L.PATIL ADVOCATE FOR R1 TO R16,
SRI.U.M.BANAKAR, ADDL.SPP FOR R17,
APPEAL AGAINST R13 AND R16 IS ABATED V/O DATED
24.01.2023).
THIS CRIMINAL APPEAL IS FILED U/S 372 OF CR.P.C.
SEEKING TO CALL FOR THE RECORDS OF THE CASE BEARING
S.C. NO. 151/2010 ON THE FILE OF I ADDL. DISTCIT AND
SESSIONS JUDGE, DHARWAD, SITTING AT HUBLI AND TO SET
ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED
29/01/2016 PASSED BY I ADDL. DISTRICT AND SESSIONS
JUDGE DHARWAD, SITTING AT HUBLI IN S.C.NO.151/2010
INFAVOUR OF ACCUSED/RESPONDENTS 1 TO 16 FOR THE
4
OFFENCES PUNISHABLE U/SS 143, 147, 148, 323, 324, 504,
307 R/W 149 OF IPC AND TO CONVICT AND SENTENCE THE
ACCUSED/RESPONDENT NO.1 TO 16 FOR THE OFFENCES
PUNISHABLE U/SS 143, 147, 148, 323, 324, 504 307 R/W 149
OF IPC.
IN CRL.A NO. 100197 OF 2016:
BETWEEN:
STATE OF KARNATAKA,
REPRESENTED BY RURAL POLICE, HUBBALLI,
THROUGH THE ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA, DHARWAD BENCH.
...APPELLANT
(BY SRI. RAMESH B. CHIGARI, HCGP)
AND:
1. GANESH @ GANAPPA,
S/O. SHEKHAPPA HALIYAL,
AGE: 20 YEARS.
2. SHEKHAPPA S/O AVANEPPA HALYAL,
AGE: 60 YEARS.
3. MALLIKARJUN S/O BASAPPA HALYAL,
AGE: 31 YEARS.
4. IRAPPA @ VEERANNA, S/O BASAPPA HALYAL,
AGE: 30 YEARS.
5. SHANKRAPPA S/O ADVEPPA HALYAL,
AGE: 36 YEARS.
6. SHARANAPPA S/O SHANMUKHAPPA HALYAL,
AGE: 31 YEARS.
7. SHANMUKAPPA S/O AVANEPPA
@ SHEKHAPPA HALYAL,
5
AGE: 61 YEARS.
8. PARAMESH S/O NINGAPPA HALYAL,
AGE: 45 YEARS.
9. BASAVARAJ S/O ADIVEPPA HALYAL,
AGE: 30 YEARS.
10 . RAVI S/O SHEKHAPPA HALYAL,
AGE: 28 YEARS.
11 . SHIVAPPA S/O AVANEPPA HALYAL,
AGE: 32 YEARS.
12 . SHIVAPPA S/O KARABASAPPA HALYAL,
AGE: 28 YEARS.
13 . BASAPPA S/O NAGAPPA HALYAL,
AGE: 65 YEARS.
(SINCE DECEASED, APPEAL STANDS ABATED
V.O.DATED.24.01.2023)
14 . SUBHASH @ SUBHASHCHANDRA,
S/O BOODAPPA HALYAL,
AGE: 38 YEARS.
15 . PRAKASH S/O BOODAPPA HALYAL,
AGE: 38 YEARS.
16 . SURESH S/O BOODAPPA HALYAL,
AGE: 34 YEARS.
(SINCE DECEASED, APPEAL STANDS ABATED
V.O.DATED.24.01.2023)
...RESOPONDENTS
(BY K.L.PATIL ADVOCATE FOR R1 TO R16,
APPEAL AGAINST R13 AND R16 IS ABATED V.O.DATED
24.01.2023.)
6
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)
AND (3) OF CR.P.C., PRAYING TO GRANT LEAVE TO APPEAL
AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL
29.01.2016 PASSED IN SESSIONS CASE NO.151 OF 2010 BY
THE I ADDITIONAL DISTRICT AND SESSSIONS JUDGE,
DHARWAD, SITTING HUBBALLI, TO SET ASIDE THE JUDGMENT
AND ORDER OF ACQUITTAL DATED 29.01.2016 PASSED IN
SESSIONS CASE NO.151 OF 2010 BY THE I ADDITIONAL
DISTRICT AND SESSIONS JUDGE, DHARWAD, SITTING
HUBBALLI AND TO CONVICT THE RESPONDENT / ACCUSED
WAS ACQUITTED OF THE OFFENCES PUNISHABLE UNDER
SECTIONS 143, 147, 148, 323, 324, 504 AND 307 READWITH
SECTION 149 OF IPC.
THESE CRIMINAL APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 22.05.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, ASHOK S. KINAGI,
J., DELIVERED THE FOLLOWING:
JUDGMENT
Crl.A.No.100062/2016 is filed by the de-facto complainant and Crl.A.No.100197/2016 is filed by the State challenging the judgment and order of acquittal dated 29.01.2016 passed by the I Additional District and Sessions Judge, Dharwad sitting at Hubballi in S.C.No.151/2010 for the offences punishable under Sections 143, 147, 148, 323, 324, 504, 307 r/w Section 149 of IPC wherein the Sessions Court has acquitted the accused.
7
2. Brief background of the case:
A complaint came to be filed by P.W.2 on 05.05.2009 at about 12.30 hours alleging that there is enmity between his family members and the family members of accused No.1-Ganesh and it was in respect of panchayat elections. That on 04.05.2009 at about 9.00 p.m. P.W.4/C.W.4 came to his house and stated that he has parked his truck near Samudaya Bhavan and he will proceed to Hospet. After sometime, he heard the voice of P.W.4/C.W.4 and others and thus, he along with his son Rajesh P.W.5/C.W.8 proceeded near Samudaya Bhavan and found all the accused were in group and they possessed sticks and iron rods and they abused P.W.4/C.W.4 in vulgar language and questioned as to why he did not give way for the tractor of accused No.1-Ganesh and slapped him and assaulted on his face and at that time, the informant P.W.2/C.W.1 and his son P.W.5/C.W.8 tried to pacify the quarrel, all the accused abused in filthy language contending that there was galata during panchayat election and they would be 8 murdered. Saying so, accused Nos.1, 2, 3, 11 and 16 assaulted with sticks and iron rods with an intention to murder them and accused Nos.1 and 2 assaulted on the head of P.W.5/C.W.8 with iron rods and accused Nos.3, 11 and 16 assaulted with sticks on his legs, back, hands etc. When they raised hue and cry, P.Ws.7, 8 and P.W.3 pacified the matter and while going away, the accused left the sticks and iron rods on the spot and the incident has taken place at 9.45 p.m. Thereafter, they came to KIMS Hospital, Hubballi for treatment and injured P.W.5/C.W.8 was shifted to Sushruta Multi Specialty Hospital and Research Centre, Hubballi as he has suffered fatal injuries. The said information came to be registered on 05.05.2009 at 12.30 hours in crime No.110/2009 for the offences punishable under Sections 143, 147, 148, 323, 324, 504, 307 r/w Section 149 of IPC by Hubballi Rural Police Station. During the course of investigation, P.W.5 was subjected to medical check up at KIMS Hospital, Hubballi and thereafter, Sushruta Multi Specialty Hospital and Research Centre, Hubballi. The accused were not arrested 9 in pursuance of grant of anticipatory bail in Crl.Misc.No.264/2009. During the course of investigation, P.W.13-Investigating Officer recorded the statement of the witnesses and on completion of the investigation, charge sheet came to be submitted on 01.08.2009 for the offences punishable under Sections 143, 147, 148, 323, 324, 504, 307 r/w Section 149 of IPC. On committal of the case to the Sessions Court, it was numbered as S.C.No.151/2010. Charges came to be framed on 27.09.2012 and on accused pleaded not guilty and claimed to be tried, trial was commenced. On behalf of the prosecution, 13 witnesses were examined as P.Ws.1 to 13 and got marked 13 documents at Exs.P1 to P13 and M.Os.1 to 5. On incriminating material being suggested, the statement of the accused came to be recorded under Section 313 of Cr.P.C. on 09.07.2015. After hearing the detail arguments, learned Session Judge framed the following point for consideration.10
1) Whether the prosecution proves beyond reasonable doubt that the accused No.1 to 16 being the members of an unlawful assembly armed with deadly weapons with the common object of murdering Chandru (P.W.4), Leshappa (P.W.2) and Rajesh (P.W.5) picked up quarrel with Chandru (P.W.4) on 4.5.2009 at about 9.45 p.m., assaulted them by means of iron rods and sticks, abused them in filthy language at Mantur village and caused grievous injuries on P.W.5 Rajesh and simple injuries to P.Ws.2 and 4 and thereby committed the offences punishable under Sections 143, 147, 148, 323, 324, 504, 307 R/w Section 149 of Indian Penal Code
2) What order?
FINDINGS OF THE SESSIONS COURT:
3. The learned Sessions Judge has held that prosecution has failed to prove the intention of the 11 accused. If the accused had intention to commit murder, they would not have left the spot without committing the murder, more particularly, when the victims were not armed and the accused were armed with deadly weapons. Further, it has recorded that after assault, M.Os.1 to 5 were left on the spot by the accused. Thus, the intention is not proved by the prosecution and essential ingredients of Section 307 are not attracted. Apart from this, the doctor has not given his opinion that the injuries were sufficient to cause death. Further, P.W.9 has not specified the period of treatment undergone by P.W.5-Rajesh. Even P.W.5 has not deposed disclosing anything that the hurt sustained by him has endangered his life or that hurt has compelled him to suffer any bodily pain or that he was unable to follow his ordinary pursuits for 20 days. It is further held that, on perusal of the evidence even the scene of offence is also inconsistent. Thus, considering the material on record, the learned Sessions Judge was of the opinion that prosecution has failed to prove the charges against the accused beyond reasonable doubt and the accused are entitled for benefit 12 of doubt. Consequently, accused came to be acquitted. Hence, these appeals.
4. We have heard the arguments of the learned counsel Sri.M.B.Gundewade for the complainant, learned Additional SPP for the State and learned counsel Sri.K.L.Patil for the accused.
5. Learned Additional SPP submits that the impugned judgment and order of acquittal passed by the Sessions court is contrary to the facts, probabilities of the case, evidence on record, law and conduct of the respondents who had committed the offence punishable under Sections 143, 147, 148, 323, 324, 504, 307 r/w Section 149 of IPC and as such, the impugned judgment and order of acquittal is liable to be set aside. He submits that evidence of P.Ws.2, 4 and 5 clearly discloses that all these persons sustained injuries in the incident which has taken place on 04.05.2009. He submits that P.W.2 has specifically stated that when all the accused persons assaulted P.W.4 who had gone to rescue P.W.5, at that 13 time, accused persons namely, accused No.3 abused him in filthy language and assaulted on his left portion of the head with a club and accused Nos.11 and 16 assaulted him with clubs on his chest, back and legs. When his son P.W.5-Rajesh came for his rescue, accused Nos.1 and 2 assaulted on his head portion with iron rods and caused grievous injuries. He submits that accused Nos.11 and 16 assaulted him with sticks. He submits that the evidence of P.Ws.2, 4 and 5 is corroborated with injury certificate Exs.P1 and P2 issued by P.Ws.1 and 10 which are issued on the basis of the examination of the injured persons. He submits that on the basis of evidence, it clearly discloses that presence of the accused persons and the injured persons near Samudaya Bhavan on 04.05.2009 at about 9.45 p.m. and the victims have sustained injuries at that time. It is submitted that the evidence of P.W.13- Investigating Officer corroborates the evidence of the victims namely, P.Ws.2, 4 and 5. It is also contended that trial court committed an error in concluding that the evidence for the proof of the scene of offence is 14 inconsistent. Hence, on these grounds he prayed to allow the appeal.
6. Per contra, learned counsel Sri.K.L.Patil appearing for the respondents/accused supports the impugned judgment and order of acquittal. He submits that complainant had also assaulted the accused and the accused have lodged a criminal case against the complainant. He submits that if the accused had an intention to commit the murder, they would not have left the spot without committing the murder, more particularly when the victims were not armed and the accused were armed with the deadly weapons. He submits that intention is not proved by the prosecution and essential ingredients of Section 307 are not attracted. He submits that doctor was of the opinion that injuries were not sufficient to cause the death. He submits that P.W.9 has not stated the period of treatment undergone by P.W.5 and he has not deposed disclosing anything that the hurt sustained by him has endangered his life or that hurt has compelled to him to 15 suffer any bodily pain or that he was unable to follow his ordinary pursuits for 20 days. The trial court has assigned reasons and has rightly recorded the finding that the prosecution has failed to prove the charges against the accused beyond reasonable doubt and rightly extended the benefit of doubt to the accused and rightly acquitted the accused.
7. Having heard the learned counsel appearing for the parties and after bestowing our careful and anxious consideration to the rival contention raised at the bar, we are of the considered view that following points would arise for our consideration.
1) Whether the judgment of acquittal passed in S.C.No.151/2010 for the offences punishable under Sections 143, 147, 148, 323, 324, 504, 307 r/w Section 149 of IPC is based on proper appreciation of evidence and as such, it is liable to be sustained?
2) What order?
16
DISCUSSION AND FINDINGS ON THE POINTS
FORMULATED ABOVE:
8. As observed by us hereinabove, the learned Sessions Judge had charged the accused for the offences punishable under Sections 143, 147, 148, 323, 324, 504, 307 r/w Section 149 of IPC and it was on the basis of charge sheet material. The learned Sessions Judge has framed the charges on 27.09.2012. A plain reading of the charges framed against the accused are that, on 04.05.2009 at about 9.45 p.m. in front of the house of the P.W.2-complainant near Samudaya Bhavan in Mantur village, accused being the members of an unlawful assembly, armed with deadly weapons like iron rods and sticks picked up quarrel and assaulted P.W.2 and P.W.5 whereas accused Nos.3, 11 and 16 assaulted by means of club to P.W.2 on his back and thereby committed the offence under Sections 307, 324 and 504 of IPC.
9. P.W.2-complainant submitted complaint to the police as per Ex.P5. It is mentioned in Ex.P5 that on 17 04.05.2009 there is enmity between family members of the complainant and family members of the accused and it was in respect of panchayat elections. On 04.05.2009 at about 9.00 p.m. P.W.4-Chandru came to his house and stated that he has parked his truck near Samudaya Bhavan and he will proceed to Hospet. After sometime, he heard the voice of P.W.4 and others and thus, he along with his son Rajesh proceeded near Samudaya Bhavan and found all the accused were in group and they possessed sticks and iron rods and they abused P.W.4-Chandru in vulgar language and questioned whey he did not give way for the tractor of accused No.1 and slapped him and assaulted on his face. At that time, the informant and his son Rajesh tried to pacify the quarrel and all the accused again abused in filthy language contending that there was galata during panchayat elections and they would be murdered and saying so, accused Nos.1, 2, 3, 11 and 16 assaulted with sticks and iron rods with an intention to murder them and accused Nos.1 and 2 assaulted on the head of Rajesh with iron rod and accused Nos.3, 11 and 16 18 assaulted with sticks on his legs, back, hands etc. When they shouted out of pains, P.Ws.7, 8 and 3 pacified the matter and while going away, the accused left the sticks and iron rods on the spot and the incident has taken place at 9.45 p.m. Thereafter, they came to KIMS Hospital for treatment and injured P.W.5-Rajesh was shifted to Sushruta Multi Specialty Hospital and Research Centre, Hubballi as he has suffered fatal injuries. He states that during the year 2000 he was chairman of Gram Panchayat and accused No.2 had put up a shed on the road and there was altercation and further Shivappa Alur had contested the Gram Panchayat elections during the year 2005-06 and the relative of the accused Honnappa Sunkad lost elections and thus, there was enmity. In the cross-examination, it is elicited that none of the family members of the accused had contested the Gram Panchayat elections. He admits that the secretary of the Gram Panchayat would deal with encroachment etc. Though he named four persons said to have been present during the incident of 2000, they have not been shown in the charge sheet or examined by the 19 prosecution. He admits that Honnappa Sunkad has never contested the elections. He admits that number of people will be present near and in front of Samudaya Bhavan and people will be found up to 10.00 p.m. He admits that P.W.6-Yallappa Bhangi has maintained cordial relationship with him. He admits that P.W.7-Gurayya and P.W.8- Kallappa are the friends of Jagadish who is his relative. He admits that here is police outpost at Bhandiwad village which is 1 k.m. from Mantur. He admits that neither himself nor his family members have given report to the police outpost at Bhandiwad village. It is elicited that the cloths of P.W.5-Rajesh were bloodstained and they were taken in KIMS Hospital etc. He denied all other suggestions. He denied that after assaulting accused No.1, they started to run and while running they fell on stone and came into contact with rough surface and suffered injuries.
10. P.W.3-Shankrappa Ganiger is said to be an eye-witness. He states that galata took place on 20 04.05.2009 at about 9.30 p.m. near Samudaya Bhavan situated in front of Hanuman temple and all the accused were abusing, kicking and assaulted P.W.4-Chandru and on hearing the cries, P.W.2 came and he was assaulted with sticks by accused Nos.3 and 11. He stated that he does not remember more details. He states that P.W.5- Rajesh came to rescue of his father, the accused Nos.1 and 2 assaulted on his head with iron rod causing bleeding injuries and accused threw the weapons and ran away. He did not identify M.Os.1 to 5 as the incident has taken place long back. He identified his signature on Ex.P6-Spot Panchanama. After giving the evidence, the witness died and thus, he did not tender himself for cross-examination. The trial court discarded the evidence of P.W.3.
11. P.W.4-Chandru Alur is also an injured witness. He states that, on that day he had parked his truck near Samudaya Bhavan and at about 9.30 p.m. at that time, the accused in group came and assaulted him with stones and hands and when he cried, P.Ws.2 and 5 came to his 21 rescue and accused Nos.2, 3 and 16 assaulted P.W.2 and accused Nos.1 and 2 assaulted P.W.5 on his head with iron rods. He states that P.W.5 became unconscious and suffered bleeding injures and further, the accused abused in filthy language and threw M.Os.1 to 5. He states that he has taken treatment at Sushruta Multi Specialty Hospital and Research Centre, Hubballi and also after taking treatment at KIMS Hospital. His statement was recorded by the police when he was under treatment at KIMS Hospital. During the course of cross-examination, he admits that number of people were present near Hanuman temple and Samudaya Bhavan. He admits that Honnappa Sunkad is a KSRTC driver since 15 years and he has never contested panchayat elections. He admits that Honnappa Sunkad is not related to the accused. He denied that he had parked his truck across the road and thus, quarrel ensued in between him and accused No.1 etc and he along with P.Ws.2 and 5 had assaulted the accused No.1. He also admits that none of the accused had contested the elections. He admits that one has to pass through the 22 police outpost at Bhandiwad village and Hubballi Rural police station to reach KIMS Hospital and no information was lodged in those police stations. Though he claims to have records with regard to earlier complaints and counter complaints, no records are produced. He admits that he has not stated to about 16 accused forming a group and assaulting him with stones and by means of hands in the statement given to police under Section 161 of Cr.P.C.
12. P.W.5-Rajesh is also an injured witness. He has given evidence which is similar to the evidence of P.Ws.2 and 4. He specifically states that the accused Nos.1 and 2 assaulted on his head with iron rods and further gave life threat etc. He states that he was an inpatient for 40 days in Sushruta Multi Specialty Hospital and Research Centre, Hubballi. In the cross-examination, it is elicited that none of the accused had contested the elections. He admits that elders of the village have pacified the matter. He denied all other suggestions.
23
13. P.W.6-Yappalla Bhangi is the co-pancha. He states that police have called him for panchanama and three sticks and two rods were lying near Hanuman temple and a quarrel had taken place on the previous night. He states that P.W.7 showed the spot and M.Os.1 to 5 and he identified them and also his signature on the spot panchanama. A suggestion was put to him that at the instance of P.W.3, he is giving false evidence and he admits the said suggestion.
14. P.W.7-Gurayya Lokapurmath is the pancha. He states that on 04.05.2009 at about 9.00 p.m. he was sitting near Samudaya Bhavan circle along with P.W.3 and P.W.8 and a quarrel had taken place. He states that he does not know the reason for quarrel and only as per the say of P.W.3, he knows about the quarrel and he did not identify iron rods M.Os.1 and 2, but he identifies M.Os.3 to
5. He states that he did not see who suffered injuries and who assaulted whom. On the next day he was present when the police came and a panchanama was drawn at 24 2.00 p.m. This witness was declared as hostile witness. In the cross-examination, he states that during the assault, he was not present.
15. P.W.8-Kallappa Bilibhantar is another witness and he states that he is resident of Morab village and speaks about the galata between Alur family and Halyal family. He did not identify the accused. He was declared hostile but he denied the suggestions made in the cross- examination. He admits that nearly 50-60 persons had gathered during the incident, but he does not know the reason for galata.
16. P.W.1-Dri.Mahadevappa Giddanavar is the Senior Surgeon in the District Hospital and he was working in KIMS Hospital during the relevant time. He states that on 04.05.2009 he examined P.W.5-Rajesh at 10.00 p.m. and noticed the injuries on the body of P.W.5. He states that P.W.5 was admitted as indoor patient and was discharged against the medical advise on 05.05.2009. He states that injuries Nos.1 to 3 are grievous in nature and 25 other injuries are simple in nature and they could be caused by hard and blunt object and their age was three hours prior to his examination. He states that he also examined P.W.2 at 12.30 a.m. on 05.05.2009 and found tenderness over right cheek, chest and right side of the groin and also swelling and abrasion and tenderness over right arm and right shoulder and he was discharged against the medical advise on 07.05.2009. He states that injuries could be caused by hard and blunt object etc. He has given his opinion after examining M.Os.1 to 5 and according to him, the injuries suffered by P.W.5 could be caused by M.Os.1 to 5. He admits that injuries shown in the wound certificate Exs.P1 and P2 are possible in the event of a person falls on a hard surface while running fast or while running after assaulting some person, gets himself dashed against the walls or doors etc. He admits that he had examined accused Nos.1, 10 and 11 on 04.05.2009 and accused No.10 had suffered grievous injuries etc. 26
17. P.W.9-Dr.Nagaraj is CMO from Sushruta Multi Specialty Hospital and Research Centre, Hubballi. He states that on 05.05.2009 at 2.00 a.m. he has examined P.W.5 and the said patient was referred from KIMS Hospital. He states that based on the C.T. scan report, P.W.5 had suffered depressed comminuted fracture of left fronto parietal bone with displaced fracture of fragments and hemorrgagic contusion in the left tempero fronto parietal region associated with thin rim of subdural bleed and sub arachnoid bleed and further defused cerebral oedema was present. He opines that the above injury is grievous in nature and could be caused if assaulted with an iron rod and further states that such injury could be caused by assault with M.Os.1 and 2. He admits that KIMS Hospital, Hubballi is one of the best hospitals in Karnataka having all facilities. He admits that he has not treated the patient but Dr.Mithun Sattur treated him. He admits that he has not mentioned the nature of injury in the wound certificate Ex.P9.
27
18. P.W.10-Dr.Siddeshwar Katakol who examined P.W.4 on 05.05.2009 and noticed an abrasion with scab over the right side of the neck. He opines that both the injuries are simple in nature and age of the injuries were within 24 hours and in that regard he has issued Ex.P10.
19. P.W.11-Suresh Savalagi is an engineer who has prepared the sketch of scene of offence Ex.P11.
20. P.W.12-Maltesh Yaliwal is an Assistant Executive Engineer in HESCOM and he has given Ex.P12 and states that there was supply of electricity during the time of incident.
21. P.W.13-Shashikant Kambale is the Investigating Officer. He states that he received MLC from KIMS Hospital, Hubballi on 05.05.2009, visited KIMS Hospital and visited the informant who was under
treatment and went to the police station and registered it in crime No.110/2009. He sent FIR to the court and on the same day visited the scene of offence and conducted spot panchanama. He states that on the same day he requested 28 PWD Engineer to draw the sketch of the scene of offence and requested HESCOM authorities to give certificate regarding power supply to Mantur village at the relevant time. He states that he sent M.Os.1 to 5 to the Medical Officer for his opinion whether the injuries cold be caused with M.Os.1 to 5 and received the report as per Ex.P3. He collected the medical certificate from Sushruta Multi Specialty Hospital and Research Centre, Hubballi as per Ex.P9 and after collecting all the documents, completed the investigation and filed the charge sheet. In the cross- examination, he admits that he registered crime No.111/2009 reported by accused No.1 having assaulted him by the informant and others. He admits that he does not know the reason for galata. According to him, M.Os.1 to 5 were in the Hanuman temple lane which is at a distance of 25-30 meters from the scene of offence.
22. From perusal of the evidenced led by the prosecution, the prosecution has failed to notice that there is enmity between the family members of the complainant 29 and family members of accused No.1. Further, P.W.2 in his cross-examination has admitted that none of the family members of the accused had never contested the Gram Panchayat elections. Though he named four persons said to have been present during the incident of 2000, they have not been shown in the charge sheet or examined by the prosecution. Further, number of people were present near and in front of Samudaya Bhavan and the Investigating Officer has not recorded the statement of the persons who were present on the spot at the time of alleged incident. He submits that P.W.6 has maintained cordial relationship with P.W.2. He admits that P.Ws.7 and 8 are friends of Jagadish who is relative of P.W.2. So, P.Ws.6, 7 and 8 are the interested witnesses. Further, if the alleged incident has taken place on 04.05.2009 at 9.30 p.m. P.W.2 has not reported to the Police outpost at Bhandiwad village which is 1 k.m. away from Mantur village. On the contrary, complaint as per Ex.P5 was filed before the Hubballi Rural Police Station at 12:30 hours. Therefore there is an inordinate delay in lodging the 30 complaint. P.W.2 has not explained the reason for not informing the police outpost at Bhandiwad village. Even P.W.4 admits that number of people were present near Hanuman temple and Samudaya Bhavan and he also admits that Honnappa Sunkad has never contested the panchayat elections and he is not related to the accused. He admits that none of the accused have contested the elections. He admits that he has not stated about 16 accused forming a group and assaulting him with stones and by means of hands in the statement given to the police under Section 161 of Cr.P.C.
23. P.W.5 also admits that none of the accused have contested the elections. He admits that except the case on hand, there are no cases in courts or police stations and according to him, the elders of the village have pacified the matter. He admits that good number of persons had gathered during the incident. He also admits about the location of police stations while reaching KIMS Hospital. A suggestion was made to P.W.6 that at the 31 instance of P.W.3, he is giving false evidence, he admits the said suggestion.
24. P.W.7 was declared as hostile and he has stated that during the assault he was not present. P.W.8 was also declared as hostile. In the cross-examination he stated that he does not know the reason for galata and he admits that nearly 50-60 persons had gathered during the incident. In the said incident, some of the accused have also sustained injuries. P.W.13-Investigating Officer in the cross-examination has admitted that he knew about the assaults made by the informant and his followers in this case on some of the accused. The accused in their statement under Section 313 of Cr.P.C. have stated about the injuries suffered by some of the accused. He admits that accused No.1 has reported on 05.05.2009 that the informant and some witnesses in this case had assaulted them and the said crime was registered in Hubballi Rural Police Station in crime No.111/2009 and the complaint was against P.Ws.2, 4 and 5.
32
25. The trial court recorded the demeanor of P.W.7 at paragraph 46 of the impugned judgment. P.Ws.7 and 8 were declared as hostile. Considering the entire material on record, it discloses that there was quarrel between two groups and the prosecution has failed to prove that who are the aggressors as there is case and counter case arising out of the same incident. Considering the entire evidence on record, the prosecution has failed to prove the intention of the accused in the case.
26. In the light of the above and the prosecution witnesses being interested witnesses and witnesses being friends and relatives of the complainant and there being no independent corroborative evidence by third party witnesses though they were present on the spot, but P.W.13 has not recorded the statement of any independent witnesses. PW.13 has recorded the statement of interested witnesses in order to furnish the accused persons. Therefore, we are of the considered opinion that prosecution has failed to prove the charges against the 33 accused beyond reasonable doubt and the accused are entitled for benefit of doubt. It is well settled law that evidence of interested witnesses requires careful scrutiny to discover falsehood, embellishment or exaggeration, which must be eschewed.
27. Whereas it is relevant to refer the judgment of the Hon'ble Apex Court rendered in the case of Sharad Birdhi Chand Sarda vs. State of Maharashtra reported in (1984) 4 SCC 116 wherein at paragraph 163, it is held as under:
"164. We then pass on to another important point which seems to have been completely missed by the High Court. It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused undoubtedly entitled to the benefit of doubt. In Kali Ram v. State of Himachal Pradesh, [(1973) 2 SCC 808] this court made the following observations (para 25 p.820). "Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to 34 the guilt of the accused and the other to his innocence, they view which is favourable to the accused would be adopted. This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence."
(emphasis supplied)
28. The Hon'ble Apex Court in the case of Umedbhai Jadavbhai vs. State of Gujarat reported in 1978 SCC (Cri) 108 wherein at paragraph 10 held as under:
"10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence."
(emphasis supplied)
29. The Hon'ble Apex Court in the case of Chandrappa and Others vs. State of Karnataka reported in (2007) 4 SCC 415 wherein at paragraph 44 it is held as under:
35
"In our view, if in the light of above circumstances, the trial Court felt that the accused could get benefit of doubt, the said view cannot be held to be illegal, improper or contrary to law. Hence, even though we are of the opinion that in an appeal against acquittal, powers of appellate Court are as wide as that of the trial Court and it can review, reappreciate and reconsider the entire evidence brought on record by the parties and can come to its own conclusion on fact as well as on law, in the present case, the view taken by the trial court for acquitting the accused was possible and plausible. On the basis of evidence, therefore, at the most, it can be said that the other view was equally possible. But it is well-established that if two views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial Court, it ought not to be disturbed by the appellate Court. In this case, a possible view on the evidence of prosecution had been taken by the trial Court which ought not to have been disturbed by the appellate Court. The decision of the appellate Court (High Court), therefore, is liable to be set aside."
(emphasis supplied)
30. It is well establish principles of law laid down by the Hon'ble Apex Court that there is no embargo on the 36 appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of the justice in criminal cases is that, if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to the accused should be adopted from the conviction of an innocent. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent.
31. The trial court on considering the evidence of prosecution inclusive of defence theory rendered judgment of acquittal. The finding recorded by the trial court while acquitting the accused is just and proper and based on the evidence of prosecution. There is no merit in the appeals which calls for interference by this court. 37
32. Considering the law laid down by the Hon'ble Apex Court in the judgments referred above, we answer point No.1 in the affirmative and proceed to pass the following:
ORDER The appeal preferred by the State under Section 378(1) & (3) of Cr.P.C and appeal preferred by the complainant under Section 372 of Cr.P.C. are dismissed.
The judgment and order of acquittal passed by the I Additional District and Sessions Judge, Dharwad sitting at Hubballi in S.C.No.151/2010 is confirmed.
Sd/-
JUDGE Sd/-
JUDGE MBS/-