Karnataka High Court
Kantu S/O Ramesh Kognoor vs The State Of Karnataka on 25 October, 2024
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NC: 2024:KHC-K:7865
CRL.A No. 200009 of 2020
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 200009 OF 2020
(374(Cr.PC)/415(BNSS)
BETWEEN:
KANTU S/O RAMESH KOGNOOR
AGED ABOUT: 24 YEARS, OCC: ELECTRICIAN,
R/O: BUDDHA NAGAR, KALABURAGI - 585102.
...APPELLANT
(BY SRI. GURURAJ V HASILKAR, ADV.)
AND:
THE STATE OF KARNATAKA
THROUGH STATION POLICE STATION
Digitally signed
by RAMESH KALABURAGI.
MATHAPATI
Location: HIGH REPRESENTED BY ADDL. SPP
COURT OF
KARNATAKA HIGH COURT OF KARNATAKA,
KALABURAGI BENCH - 585101.
...RESPONDENT
(BY SMT. ANITA M. REDDY, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374
(2) OF CR.P.C, PRAYING TO ADMIT THIS APPEAL CALL FOR THE
RECORDS FROM THE TRIAL COURT AND SET ASIDE THE
JUDGMENT AND ORDER OF CONVICTION DATED: 12.12.2019
PASSED IN III ADDL. DISTRICT AND SESSIONS JUDGE AT
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NC: 2024:KHC-K:7865
CRL.A No. 200009 of 2020
KALABURAGI IN SC NO:100/2015 AND ACQUIT THE
APPELLANT.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE G BASAVARAJA
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE G BASAVARAJA)
1. This appeal is preferred by the accused No.2 against the judgment of Conviction and Order on sentence, dated 12.12.2019 passed in SC No.100/2015 by the Court of the III Addl. District and Sessions Judge, Kalaburagi, convicting and sentencing him for the offence punishable under Sections 341 & 504 r/w 34 IPC and sentenced to undergo SI for a period of 15 days and to pay a fine of Rs.500/- for the offence under Section 341 IPC in default to payment of fine amount shall undergo SI for a period of 10 days, further he is convicted for the offence under Section 504 IPC and undergo a simple imprisonment for a period of one year and pay a fine of Rs.25,000/- in default to payment of fine shall undergo SI for a period of six months.
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2. For the sake of convenience, parties are referred to as per their ranking before the trial Court.
3. Brief facts leading to this Appeal are that, The Inspector of Bazar Police Station submitted a charge sheet against the Accused Nos.1 - 4 for the commission of offence punishable under Sections 341, 326, 323, 504 & 307 r/w Section 34 IPC. It is alleged by the prosecution that, one Matin Ahmed S/o Shabbir Ahmed is the complainant gave statement to the Police Constable Mallikarjun in Basaveshwar Hospital on 14.09.2014 stating that on 14.09.2014 at about 08.00 pm, he was informed by one Mehraj that accused No.1 and others assaulted his brother Mujeeb at about 07.30 pm near Hanuman Temple in Panchasheel Nagar. Immediately, he went to the spot and his brother was injured severely on his head and he came to know that, when his brother and Mehraj were proceeding on a motor cycle, the accused No.1 to 4 stopped the motor cycle of his brother. The accused Nos.2 and 3 held hands of his brother and accused No.1 -4- NC: 2024:KHC-K:7865 CRL.A No. 200009 of 2020 assaulted with Talwar on the head of his brother and accused No.4 assaulted with hands on the back of his brother. By that time, CW-8 and 10 came to the spot and on seeing them, the accused fled the spot. Immediately, the complainant shifted his brother to Basaveshwar Hospital along with his friend Wasim. It is stated that the accused assaulted his brother when his brother refused to pay the money demanded by accused.
4. On the basis of this complaint, case was registered in Crime No.152/2014 for the commission of offences punishable under Sections 341, 326, 323, 504 and 307 R/w Section 34 of IPC.
5. After filing the charge sheet, the case was registered in CC.No.6062/2014, thereafter the case was committed to the Sessions Court and case was registered in SC No.100/2015. Accused No.2 has obtained bail. Accused No.3 is the Juvenile and a case against Accused No.4 was spilt up and separate case is registered against him, as he was absconding.
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6. On hearing the arguments on both sides, the Trial Court has framed the charges, same was read over and explained to the accused. Having understood the same, accused pleaded not guilty and claimed to be tried.
7. To prove the case on the prosecution, in all, 21 witnesses were examined as PW-1 to 21, 15 documents were marked as Ex.P-1 to 15 and 8 material objects were marked as M.O.No.1 to 8. On closure of prosecution side evidence, statement under Section 313 of Cr.P.C was recorded, accused have totally denied the evidence of the prosecution witnesses but they have not adduced any defence evidence on their behalf.
8. Having heard the arguments on both sides, the Trial Court has convicted the accused Nos.1 and 2 for the commission of offence under Sections 341, 504 IPC and accused No.1 had also been convicted for the commission of offence under Sections 323, 326 and 307 R/w Section 34 of IPC. The accused No.2 - the appellant herein is -6- NC: 2024:KHC-K:7865 CRL.A No. 200009 of 2020 acquitted for the offence under Sections 323, 326 and 307 R/w 34 IPC.
9. Being aggrieved by this judgment of conviction and order of sentence against the accused No.2, he has preferred this appeal.
10. It is submitted by the learned counsel for the appellant that the accused No.1 had also preferred appeal against the conviction and order of sentence against him in Criminal Appeal No.200034/2021, but same was withdrawn by him as per order dated 31.10.2022 as he had already undergone the sentence imposed against him.
11. He further submits that, the judgment of conviction and order on sentence passed by the Trial Court is contrary to the facts of the case, evidence on record and against the settled principle of law.
12. The Learned Sessions Judge has committed a serious error in convicting the appellant without properly appreciating the evidence in its right perspective. The -7- NC: 2024:KHC-K:7865 CRL.A No. 200009 of 2020 Trial Court has not considered the cross-examination of the accused and even not considered the evidence of the complainant and injured. Both have not stated anything against this present accused - appellant and they have also not identified this appellant. Further it is submitted that, there is no case made out against this appellant under Sections 341, 326, 323, 504 and 307 R/w Section 34 of IPC. Neither appellant assaulted the injured person i.e. CW-6 nor touched the body of the injured. The only allegation is that appellant herein was present at the time of incident. He has demanded money from CW-6 i.e., injured person but at the time of examination, in-Chief CW-6 has not stated anything against the appellant and he has not taken the name of the appellant. Hence, there is no material to show that appellant has assaulted to the injured person. There are no ocular or circumstantial evidence, which supports the prosecution case. On the other hand, the evidence of interested witnesses are bound to be untrustworthy and does not inspire confidence. The Trial Court has not properly appreciated -8- NC: 2024:KHC-K:7865 CRL.A No. 200009 of 2020 the evidence on record in accordance with law and facts. On all these grounds, sought for allowing this appeal.
13. Per contra, learned HCGP appearing for the respondent - State vehemently contends that the judgment under appeal does not suffer from any perversity or illegality. After considering the entire evidence and materials available on record, the learned trial Judge passed the well reasoned judgment and as such, there is no reason to interfere with the said judgment. Accordingly, he prays to dismiss the appeal.
14. I have bestowed my anxious consideration to the submissions made by the learned counsel for the appellant, so also, the learned counsel for respondent - State and perused the evidence and materials available on record including the impugned judgment passed by the trial Court.
15. Having heard the learned counsel appearing for the parties and having perused the documents, the points that would arise for my consideration are;
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(a) Whether the appellant has made out a ground to interfere with the impugned judgment of conviction and sentence passed against this appellant for the commission of offence punishable under Section 341 and 504 IPC?
(b) What Order?
16. My answer to the above points are as under:
Point No.1: In the affirmative. Point No.2: As per final order. Regarding Point No.1:
17. I have examined the materials produced before this Court.
18. It is alleged by the prosecution that the accused Nos.1 and 2, along with the accused No.3 Juvenile offender and spilt up accused No.4, on 14.09.2014 at about 07.30 pm in front of house of CW-11 - Gururaj while CW-6 - Mujeb Ahmed and CW-7 - Mehraj were coming on their motor cycle, in furtherance of common
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NC: 2024:KHC-K:7865 CRL.A No. 200009 of 2020 intention, wrongfully restrained CW-7 and demanded money from CW-6. The accused Nos.2 and 3 caught hold of CW-6 and accused No.4 assaulted with hand on the back of CW-6, thereby voluntarily caused simple hurt to him. Further, it is alleged that accused No.1 assaulted by means of sword over the head of PW-6 thereby voluntarily caused grievous hurt to CW-6. Accused Nos.3 and 4 in furtherance of common object, accused the abused CW-6 and 7 in filthy language, thereby intentionally insulted and gave provocation to them intending or knowing that such provocation would cause them to break the public peace. Further, it is alleged that accused No.3 and 4 with a common object, when the accused Nos.2 and 3 caught hold of hands of CW-6, then accused No.1 assaulted by means of sword over the head of CW-6, thereby, attempted to commit offence under Sections 341, 323, 326, 504 and 307 R/w Section 34 of IPC.
19. This complaint reveals that on the basis of the information given by one Mehraj, he had lodged a
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NC: 2024:KHC-K:7865 CRL.A No. 200009 of 2020 complaint against accused Nos.1 to 4. As per the averments of the complaint, the present appellant Kantu has caught hold of the hands of Ravi. PW-1 - Mathin Ahmed has not deposed anything about the present appellant. But he has deposed that accused Nos.1 to 4 demanded money from his brother. The material witness PW-6 - Mehraj has deposed in his evidence that he knows the accused Nos.1 & 2; that on 14.09.2014 at about 07.30 pm, he and PW-5 were proceeding on a motor cycle and when they reached kirani shop of Panchasheel Nagar, accused stopped their motor cycle and demanded money from them. When PW-5 replied that, he does not have money, the accused Nos.1, 3 & 4 started quarrel with his friend PW-5. Accused No.3 caught hold hand of PW-5. Accused No.4 assaulted PW-5 on his back, Accused No.1 assaulted by means of sword on the head of PW-5, he informed the incident to PW-1 and 10. PW-1 and 10 came to the spot and took the PW-5 to Basaveshwara Hospital with the help of others. Therefore, it is clear that, the material witness PW-6 has not deposed anything against
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NC: 2024:KHC-K:7865 CRL.A No. 200009 of 2020 the present appellant as to the commission of offence under Sections 341 and 504 IPC. The another witness PW- 5 - Mujeeb Ahmed, the injured has not deposed against this present appellant as to the commission of offence under Sections 341 & 504 IPC.
20. The injured Mujeeb Ahmed has also not disclosed anything before the Medical Officer against this accused. The Wound Certificate, Ex.P-12 will not indicate the name of present accused. When the material witnesses have not whispered anything against the present appellant, the Court cannot convict him for the commission of offence under Sections 341 and 504 of IPC. Absolutely, there is no legally acceptable evidence against the accused to convict him for the commission of offence under said sections. However, the Trial Court has convicted him for the commission of offence under Sections 341 and 504 IPC, which is not sustainable under law.
21. On re-examination / re-appreciation and re- consideration of the entire record, I do not find any
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NC: 2024:KHC-K:7865 CRL.A No. 200009 of 2020 cogent, convincing, corroborative evidence against the present appellant who is accused No.2. Accordingly, prosecution has failed to prove the guilt of the accused against the present appellant for commission of offence under Sections 341 and 504 IPC beyond all reasonable doubts. Accordingly, the appellant has made out a ground to interfere with the impugned judgment of conviction and sentence passed against him. Hence, I answer Point No.1 in affirmative.
Regarding Point No.2:
For the aforesaid reasons and discussions, I proceed to pass the following order:
i) Appeal is allowed;
ii) The judgment of conviction and order on
sentence dated 12.12.2019 passed in SC
No.100/2015 by the Court of the III Addl. District and Sessions Judge, Kalaburagi, is hereby set aside;
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iii) The appellant - accused No.2 is acquitted for the commission of offence under Section 341 and 504 IPC;
iv) The fine amount, if any, deposited by the accused, shall be returned to the appellant, in accordance with law;
v) Registry is directed to send the copy of this judgment along with the Trial Court Records to the concerned Court.
(G BASAVARAJA) JUDGE DHA List No.: 1 Sl No.: 11 CT: PS