Karnataka High Court
Siddappa vs The State Of Karnataka on 22 November, 2022
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.A No. 100175 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 22ND DAY OF NOVEMBER 2022
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO. 100175 OF 2016
BETWEEN:
1. SIDDAPPA
S/O YALLAPPA SHIRUR,
AGE: 53 YEARS,
2 PANDAPPA
S/O BHIMAPPA NAYANEGALI @ BAINMATTI,
AGE: 28 YEARS,
3. SANGANAGOUDA
S/O SAKRAPPAGOUDA KHAIRAWADGI,
AGE: 63 YEARS,
4. MALLAPPA
S/O SANGANAGOUDA KHAIRAWADGI,
AGE: 28 YEARS,
5. MALLAPPA
S/O PAPANAGOUDA KHAIRAWADGI,
AGE: 26 YEARS,
6. PANDAPPA @ PANDURANG
S/O TIPPANNA SIRUR, AGE: 31 YEARS,
7. HANAMANT
S/O YALLAPA KIRASUR, AGE: 38 YEARS,
8. SHIVAPPA, S/O GYANAPPA DODAMANI,
AGE: 35 YEARS,
9. YALLAPPA, S/O SIDDAPPA SHIRUR,
AGE: 25 YEARS,
10. BALAPPA, S/O BHIMAPPA NAYANEGALI,
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CRL.A No. 100175 of 2016
AGE: 33 YEARS,
11. BOGAPPA,S/O GYANAPPA GANI,
AGE: 38 YEARS,
12. SIDRAMAPPA, S/O RAMAPPA SHIRUR,
AGE: 31 YEARS,
13. GYANAPPA, S/O BHIMAPPA SHIRUR,
AGE: 25 YEARS,
14. BASAPPA, S/O SIDDAPPA AMARGOL,
AGE: 33 YEARS,
15. BEERAPPA,
S/O SHIVALINGAPPA HIREKURUBAR,
AGE: 34 YEARS,
16. VITHAL, S/O PARASAPPA DODAMANI,
AGE: 22 YEARS,
ALL ARE AGRICULTURIST,
R/O: BEVUR VILLAGE,
BAGALKOT TQ and DIST.
...APPELLANTS
(BY SRI. J BASAVARAJ, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENCH AT DHARWAD.
...RESPONDENT
(BY SRI. PRASHANTH V. MOGALI, HCGP)
THIS CRIMINAL APPEAL IS FILED U/S 374 OF CR.P.C.
SEEKING TO CALL FOR THE RECORDS PASSED BY THE II ADDL.
DIST. AND SESSIONS JUDGE, BAGALKOT IN SPL.C.NO.47/2013,
PERUSE THE SAME, ALLOW THIS APPEAL, SET ASIDE THE
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CRL.A No. 100175 of 2016
JUDGMENT AND ORDER OF CONVICTION AND SENTENCE
DTD.6.6.2016 FOR THE O/P/U/S.143, 147, 148, 323, 324, 354,
451, 504, 506(2) R/W SEC.149 OF IPC & SEC.3(1)(x)(xi) OF
SC/ST (POA) AND SET THE APPELLANTS AT LIBERTY.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed against the judgment of conviction and order on sentence dated 06.06.2016 passed in Spl.C. No.47/2013 by the learned II Additional District and Sessions Judge, Bagalkot, convicting the appellants/accused Nos.1 to 16 for the offences under Sections 143, 147, 148, 323, 324, 354, 451, 504 and 506 read with Section 149 of The Indian Penal Code (hereinafter referred to as the 'IPC', for brevity) and Section 3(1)(x) & (xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'SC & ST Act', for brevity).
The appellants/accused Nos.1 to 16 are sentenced to undergo imprisonment for three months and to pay fine of Rs.500/- each for the -4- CRL.A No. 100175 of 2016 offence punishable under Section 143 of IPC, to undergo six months and to pay fine of Rs.500/- each for the offences punishable under Sections 147, 148, 504 and 323 read with Section 149 of IPC and Section 3(1)(x) read with Section 149 of IPC and 3(1)(xi) of the SC & ST Act read with Section 149 of IPC. The appellants were also sentenced to undergo imprisonment for one year and to pay fine of Rs.500/- each for the offences punishable under Sections 324 read with Section 149 of IPC, Section 354 read with Section 149 of IPC, Section 451 read with Section 149 of IPC and Section 504 read with Section 149 of IPC. The trial Court has ordered to run all the sentences concurrently.
2. The factual matrix of the case is that, PW.1-Renuka, wife of Sri.Kambappa Chalawadi belongs to Hindu Holeyar caste and a resident of Bevur in Bagalkot taluk. When she along with her son-Vijaykumar(PW.4) were in the house, on 08.05.2013 at about 3:00pm, all the accused -5- CRL.A No. 100175 of 2016 belonging to Kuruba community came to their house holding clubs, sticks, stones, abused her touching her caste and accused caught hold of her saree forcefully and accused No.1 forcefully snatched away her mangala-sutra. When her son-PW.4-Vijaykumar came questioning them as to why they are beating his mother, at that time, accused No.4- Mallappa bet her son with a club and also scolded him touching his caste and asked him where his father was and they will finish him. At that time, PW.2-Pundalikappa Basappa Chalawadi came to pacify the quarrel, accused No.6-Pandappa abused him touching his caste. Accused No.9-Yallappa Shirur assaulted him with stone. All the accused entered the house in which the complainant resides and abused her touching her caste threatening to kill her husband on the ground that they did not vote the candidate whom the accused had proposed in the Legislative Assembly Election. All the accused ransacked into the house of the complainant and at that time, -6- CRL.A No. 100175 of 2016 accused No.10-Balappa assaulted the complainant over her chest by stone and accused No.6-Pandappa Shirur assaulted her over her chest with club and caused internal injury to her. Accused No.3- Sanganagouda assaulted on the hand of her relative- Rudravva-PW.3 with a spade which he was holding and accused No.13-Gyanappa tore the shirt of PW.4- Vijaykumar and abused touching his caste. In order to set ablaze the complainant, accused No.4- Mallappa was holding kerosene can. The said complaint-ExP.1 is registered by Bagalkot Rural Police Station Crime No.111/2013 against all the 16 accused persons for the offences punishable under Sections 143, 147, 148, 323, 324, 354, 442, 452, 504, 506 and 511 read with Section 149 of IPC and Section 3(1)(x) & (xi) of ST & ST Act. The Investigating Officer after completing the investigation filed charge sheet. Charges were framed against the appellants/accused Nos.1 to 16 -7- CRL.A No. 100175 of 2016 for the offences referred to above and they denied the charges leveled against them.
The prosecution examined 12 witnesses as PWs.1 to 12 and got marked Exs.P.1 to P.10 and material objects were marked as M.Os.1 to 5. The statement of the accused under Section 313 of Cr.P.C. was recorded.
After hearing the arguments on both sides, the trial Court framed the points for consideration and convicted the appellants for the offences charged against them. The said judgment of conviction and order on sentence has been challenged by the appellants/accused Nos.1 to 16 raising several grounds
3. Heard the arguments of the learned counsel appearing for the appellants and the learned High Court Government Pleader for the respondent- State.
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4. The learned counsel for the appellants argued that, the prosecution witnesses who have supported the case of the prosecution, are all relatives of the complainant-(PW.1) and their evidence is not corroborated by any independent witness. There is delay in filing the complaint. The alleged incident occurred on 08.05.2013 at 3:00pm and the complaint came to be lodged on 09.05.2013 at 00:30 hours. It is his further submission that a false complaint came to be lodged against the accused persons as they belong to Congress party and they were celebrating for the winning candidate of the Congress party in the Assembly Election and were bursting crackers in front of Durgadevi Temple near the house of the complainant. The complainant, her husband and their family members and other relatives are supporters of BJP party and the appellants are supporters of Congress party and therefore, the lodging of the complaint is politically motivated. The alleged incident of abuse by the -9- CRL.A No. 100175 of 2016 accused touching the caste of PWs.1 to 4 is inside their house and it is not "in any place within the public view" and it is within the four walls of the complainant's building. Therefore, the accused were all stated to be present within four walls of the building as per FIR and charge sheet. On that ground, he placed reliance on the decision of the Hon'ble Supreme Court in the case of Hitesh Verma v. The State of Uttarakhand and Ors . reported in AIR 2020 SC 5584 wherein it is held as under:
"15. As per the FIR, the all egations of abusing the informant were within the four walls of her building. It is not the case of the informant that there w as any member of the public (not merely relati ves o r f riends) at the time of the incident in the house. Therefo re, the basic ingredient that the words were uttered "in any place within public view" is not made out. In the list of witnesses appended to the charge- sheet, certain witnesses are named but it could not be said that those were the persons pres ent within the four walls of the building. The offence is alleged to have taken plac e within the four w alls of the building. Therefo re, in view of
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the judgment of this Court in Swaran Singh, it canno t be said to be a plac e withi n public view as none w as said to be present within the four walls of the building as per the FIR and/o r charge-sheet."
It is his further submission that, as there are substantial and material contradictions in the testimonies of the prosecution witnesses, the evidence of the prosecution is wholly unreliable, as the prosecution has examined only related witnesses and not a single independent witness has been examined by the prosecution. On that point he placed reliance on the decision of the Hon'ble Apex Court in the case of Md. Ajmot Ali v. The State of Assam reported in 2022 Li veLaw (SC) 856 wherein it is held as under:
"54. In the present case, owing to the substantial and materi al contradi ctions in the testimonies of the prosecution witnesses, the evidence of the prosecution is considered wholly unreliable. Additionally, the prosecution has examined only rel ated witnesses and not a
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single independe nt witness. Therefore, in the facts and ci rcumstances of the case, the evidence does no t pro ve the alleged offences agains t the ac cused appellants."
It is his further submission that, only when the family members are present at the time of the incident and the case of the prosecution is based only on their evidence, the Courts have to be cautious and meticulously evaluate the evidence in the process of trial. On that point, he placed reliance on the judgment of the Hon'ble Supreme Court in Md.Ajmot Ali' s case (supra). Learned counsel for the appellants has pointed out several contradictions in the complaint and in the evidence of PWs.1 to 4. It is his further argument that, the alleged injury suffered by PWs.3 and 4 do not corroborate the overt act alleged against the accused. The Investigating Officer has not seized the cut mangalasutra and its beads said to have fallen on the ground, blood stains and the torn clothes of PWs.1, 3 and 4. It is his further argument that, the
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CRL.A No. 100175 of 2016 lodging of the complaint by PW-1 is politically motivated. The trial Court without considering all the above aspects and without properly appreciating the evidence on record has passed the impugned judgment of conviction and order on sentence which requires to be set aside. With this, he prayed to allow the appeal.
5. Per contra, learned High Court Government Pleader argued that the trial Court on proper appreciation of the evidence on record, has rightly convicted the appellants and he supports the reasons given by the trial Court. He further argued that the evidence of PWs.1, 3 and 4 is sufficient to convict the appellants for the offences leveled against them. It is his further submission that the house of the complainant(PW-1) is situated adjacent to the public road and therefore, even though the alleged incident had occurred inside the house, it has to be considered as "a place within the public view". On that point, he places reliance on the
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CRL.A No. 100175 of 2016 Division Bench decision of this Court rendered in Criminal Appeal No.100392/2017 between the State of Kar nataka and Ki shor Vajr a Naik decided on 17.02.2022. It is his further submission that the contradictions pointed out by the counsel for the appellants are not material contradictions. With this he prayed to dismiss the appeal.
6. On the grounds made out and considering the arguments advanced, the following point arises for my consideration:
" Whether the trial court erred in convicting the appellants/accused Nos.1 to 16 for the offences 143, 147, 148, 323, 324, 354, 442, 452, 504 and 506 and 511 read with Section 149 of IPC and Section 3(1)(x) & (xi) of ST & ST Act?"
My answer to the above point is in the affirmative for the following reasons:
7. PW.10-Renuka Chalawadi, her son PW.4-
Vijaykumar and PW.3-Rudravva Chalawadi are
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CRL.A No. 100175 of 2016 belonging to Hindu Holeyar caste coming under SC is not disputed. It is also not disputed that the appellants/accused Nos.1 to 16 are belonging to Hindu Kuruba caste and they are not the members of SC/ST. Ex.P-8 is the letter issued by PW-9- Tahsildar, showing the caste of PWs.1 to 3 and accused Nos.1 to 16. The accused have not disputed that PWs-1, 3 and 4 belongs to SC. It is stated in Ex.P.1-complaint and evidence of PW.1 and PW.4 that accused Nos.1 to 16 entered their house and they abused PWs.1 and 4 touching their caste. Ex.P- 2 is the spot mahazar drawn by PW-12 as shown by PW.1 wherein it is stated that, the alleged offence has taken place inside the house of the complainant. Ex.P-10 is the hand sketch of the scene of offence drawn by PW.12 wherein the scene of offence is shown inside the house of PW.1. PW.2 and PW.6 are panchas to the said Ex.P.2 spot mahazar and they have deposed regarding drawing of spot mahazar by
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CRL.A No. 100175 of 2016 PW.12 as shown by PW.1 as per Ex.P-2 and it containing their signatures.
8. PW.12 has stated in his evidence that he has drawn spot mahazar as shown by the complainant-PW.1 as per Ex.P-2 and drawing of hand sketch of scene of offence as per Ex.P-10. In the cross-examination of PW.12, he has admitted that, the scene of offence is inside the house as per Ex.P-
2. Therefore, from the above, it is clear that the abuse by the accused touching the caste of PWs.1, 3 and 4 is inside the house of PW.1 and it is within the 4 walls of her building. Therefore, the alleged scene of offence is not "in any place within the public view". On that point, it is relevant to refer to the decision in Hitesh Ver ma's case (supra) wherein it is held as under:
"15. As per the FIR, the allegations of abusing the informant were within the four walls of her building. It is not the case of the informant that there was any member of
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the public (not merely relatives or friends) at the time of the incident in the house. Therefore, the basic ingredient that the words were uttered "in any place within public view" is not made out. In the list of witnesses appended to the charge-sheet, certain witnesses are named but it could not be said that those were the persons present within the four walls of the building. The offence is alleged to have taken place within the four walls of the building. Therefore, in view of the judgment of this Court in Swaran Singh, it cannot be said to be a place within public view as none was said to be present within the four walls of the building as per the FIR and/or charge-sheet."
Therefore, to attract an offence under Section 3(1)(x) and (xi) of SC & ST Act, abuse to the informant or any other person must be "in any place within public view". In the case on hand, the alleged incident has taken place within four walls of the building of PW.1. In the list of witnesses appended to the charge-sheet, no witnesses are cited of either having seen the incident or having
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CRL.A No. 100175 of 2016 been present and seen the incident within the four walls of the building except PW.1, her son-PW.4 and other relatives-PWs.2 and 3. Therefore, the basic ingredient that the words were uttered "in any place within public view" is not made out.
9. PW.1 is the complainant and the injured and PW.4-Vijaykumar is her son who is also injured. PW.3-Rudravva Chalawadi is also injured. PW.2 is the neighbour of PW.1. Learned counsel for the appellants has pointed out several contradictions in the evidence of PWs.1 to 4 and it is relevant to consider their evidence.
10. PW.1-Renuka Chalawadi in her evidence has stated that on 08.05.2013 in the afternoon at 3:00pm when herself and her son PW.4-Vijaykumar were in the house, at that time, all the accused holding axe, club, kerosene can and spade entered her house and started quarelling with her on the ground that she has not voted in the election to
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CRL.A No. 100175 of 2016 their candidate and at that time, accused No.6- Pandappa Shirur threw stone on her and it hurt her chest. Accused No.2-Pandappa held her saree pulled it and they pelted stones, ransacked the articles in her house, at that time, PW.4, her son Vijaykumar came to rescue her, accused No.4-Mallappa assaulted him with club on his hand and all the accused abused her touching her caste and at that time, PW-2-Pundalikappa and PW.3-Rudravva came there, accused No.3-Sanganagouda assaulted with club on the hand of PW.3-Rudrava and all the accused giving threat to her and saying that they will finish her husband, went away from the spot. At that time, accused No.10-Balappa was holding kerosene can and threatened to burn them. In the cross-examination she has stated that, Janapa Arjunappa Chalawadi, who is the son of her husband's brother, supports BJP party.
11. PW.2-Pundalikappa Chalawadi has deposed that about 3 years ago, at about 2:00pm when he
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CRL.A No. 100175 of 2016 was in the house, he heard quarreling sound and came to the house of PW.5-Kambappa, accused persons were pelting stones and at that time, PW.1 and her son PW.4 were there in the house and all the accused were quarelling with them that, they have not voted to their candidate in the election and accused assaulted PW.1-Renuka with stone on her back and he cannot say which accused assaulted her and the accused also assaulted PW.4-Vijaykumar with club and he cannot say which accused assaulted him. At that time, himself, CW-2 and the wife of his younger brother and PW.3-Rudravva came to pacify the quarrel, the accused threw stone on them and they, with fear, ran away. PW.2 has been treated as hostile and in the cross-examination by the PP, he has admitted some suggestions. In the cross- examination by the learned counsel for the accused, he has stated that he has not seen the incident and he came to the spot after the incident. Therefore,
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CRL.A No. 100175 of 2016 his evidence is not material to consider the case of the prosecution.
12. PW.3-Rudravva Chalawadi has deposed that, about 2½ years ago, at about 3:00pm herself, PW-2, her husband's elder brother were in the house and on hearing the quarrel, they came in front of the house of PW.5-Kambappa and at that time, all these accused were pelting stones to the house of the complainant and PWs.1 and 4 were in the house and the accused abused them touching their caste. She further deposed that PW-6-Pandappa Shirur assaulted on the chest of the complainant with stone. Accused No.10-Balappa pulled her saree and accused No.5-Mallappa threw stone to the back of PW.4-Vijaykumar and when she went to rescue, accused No.3-Sanganagouda assaulted with sickle on her right hand and remaining accused were abusing and assaulting. In the cross-examination, she has admitted that PW.5-Kambappa, husband of
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CRL.A No. 100175 of 2016 PW.1/complainat, is her relative and she has sustained bleeding injury on her right hand.
13. PW.4-Vijaykumar Chalawadi is the son of PW.1-Renuka Chalawadi. He has stated in his evidence that, on 08.05.2013 at about 3:00pm, himself and PW.1-his mother were in the house, accused holding axe, club, spade and kerosene can came to their house and asked them why they have not casted vote to their candidate in the election and abused them touching their caste and pulled his mother, at that time, accused No.2 held her saree and pulled her and accused No.10- pulled the mangalasutra of his mother which was on her neck and torn it. Accused No.5-Mallappa assaulted on the chest of his mother with club and at that time, when he went to rescue his mother, accused No.5 assaulted him with club to his right leg and accused No.13 torn his shirt and PWs.2 and 3 came to rescue them, accused No.7 assaulted PW.3-Rudravva with spade on her right hand and all the accused threw
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CRL.A No. 100175 of 2016 stones and chappals and broken the door and remaining accused were pelting stones and abusing them touching their caste. At that time, accused No.10-Balappa was holding kerosene can and he was threatening to burn them. He has identified the kerosene can at M.O.5. In his cross-examination he has stated that, when mangalasutra which was on the neck of his mother was pulled, it got cut and beads had fallen on the ground and they have shown the beads to the police but they the police did not seize. He has stated that, Congress party candidate had won the election and the Congress party supporters were bursting crackers in front of the DurgaDevi Temple situated near his house.
14. On considering the averments of the complaint and the evidence of PWs.1, 3 and 4, there are several material contradictions. As per Ex.P.1- complaint, accused No.1 pulled mangalasutra of PW.1 and as per the evidence of PW.4, accused No.10 pulled the mangalasutra of PW.1 and broken
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CRL.A No. 100175 of 2016 it. PWs.1 and 3 have not stated anything regarding pulling of mangalasutra of PW.1. As per Ex.P-1- complaint, accused No.4-Mallappa assaulted PW.4- Vijaykumar with club but as per the evidence of PW.3-Rudaravva, accused No.5 threw stone to PW.4. PW.4 has stated that accused No.5 assaulted him with club on his right leg. As per Ex.P.1-compliant, accused No.6 assaulted PW.1/complainant with club on her chest. PW.1 has stated that accused No.6 assaulted her with stone on her chest. In Ex.P.1- complaint, it is stated that accused No.3 assaulted PW.3-Rudravva with rod on her hand. PW.1 has stated that accused No.3 assaulted with club on the hand of PW-3. PW.3 had stated that accused No.3 assaulted with spade to her right hand. PW.1 has stated that accused No.10-Balappa was holding kerosene can. In the complaint, it is stated that accused No.4 was holding kerosene can. PW-4 stated that accused No.10 was holding kerosene can. PWs.2 and 3 have not stated as to who was holding
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CRL.A No. 100175 of 2016 kerosene can. PW.1 stated that accused No.2 held her saree and pulled it. In the complaint, it is stated that, all the accused held her saree and pulled.
15. PW.3 has stated that she was assaulted on her right hand. Ex.P-6 is the wound certificate where in it is mentioned that, there is cut lacerated wound over her left forearm. PW.7 is the Doctor who issued the wound certificate-Ex.P-6 and he has deposed that PW.3 has sustained cut lacerated wound over her left forearm. PW.1 has deposed that she has sustained bleeding injury. As per Ex.P-4- wound certificate issued by PW.7 she has not sustained any external injury. Ex.P-5 is the wound certificate of PW.4-Vijaykumar and he has sustained abrasion over left thumb and tenderness on left chest. PW-4 has not stated in his evidence regarding any assault to his hand and chest but he has deposed that accused No.5 assaulted him with
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CRL.A No. 100175 of 2016 club on his right leg but there is no corresponding injury on PW.4-Vijaykumar.
16. PW.4-Vijaykumar has stated that the door of the house was broken but the same is not forthcoming in Ex.P-2-spot mahazar. PW.5-husband of PW.1 has stated that gate was broken, cycle was damaged, front door was broken but the same is not forthcoming in Ex.P-2-spotmahazar. As per the evidence of PW.4, mangalasutra of his mother PW-1 was broken and its beads had fallen on the ground. But PW.12 the Investigating Officer has stated that, on the next day of the incident, at the time of drawing the spot mahazar, as seen in Ex.P-3- photograph, mangala sutra was on the neck of the complainant and it falsifies the statement of PW.4.
17. Therefore considering all the above contradictions, which are material contradictions, the evidence of PWs.1 and 3 to 5 is not trust worthy. There is a political rivalry between the accused
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CRL.A No. 100175 of 2016 persons and PWs.1 and 3 to 5. The candidate of Congress party-Sri Hullappa Meti had won the election and the appellants were celebrating the victory of their party candidate by bursting crackers in front of the Durgadevi temple situated near the house of the complainant. As the candidate belonging to the political party of the accused had won the election, therefore, there was no grudge by them against the complainant and her family members. It is the complainant and her family members who are having grudge as the candidate of their party was not elected and the candidate of the political party whom the accused were supporting had won the election. Therefore, there was no motive for these appellants to commit the offences alleged against them.
18. The trial Court has not appreciated the evidence on record properly and erred in holding that the appellants have committed the offences punishable under Sections 143, 147, 148, 323, 324,
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CRL.A No. 100175 of 2016 354, 442, 452, 504 and 506 and 511 read with Section 149 of IPC and Section 3(1)(x) & (xi) of ST & ST Act. Accordingly, the point is answered and pass the following order:
The criminal appeal is allowed. The judgment of conviction and order on sentence dated 06.06.2016 passed by the learned II Additional District and Sessions Judge, Bagalkote, in Spl.C. No.47/2013 is set aside. The appellants/accused Nos.1 to 16 are acquitted of the offences charged against them.
The bail bond and surety bond stand cancelled. Fine amount if any paid by the appellants, shall be refunded to them.
Sd/-
JUDGE kmv