Karnataka High Court
State Of Karnataka vs K. Basheer Sab S/O Nabisab on 11 October, 2023
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NC: 2023:KHC-D:12316-DB
CRL.A No. 100210 of 2017
C/W CRL.A No. 100032 of 2017, CRL.A No.
100033 of 2017, CRL.A No. 100034 of 2017,
CRL.A No. 100035 of 2017, CRL.A No.
100201 of 2017, CRL.A No. 100202 of 2017,
CRL.A No. 100209 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 11TH DAY OF OCTOBER, 2023
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.100210 OF 2017
C/W
CRIMINAL APPEAL NO.100032 OF 2017
CRIMINAL APPEAL NO.100033 OF 2017
CRIMINAL APPEAL NO.100034 OF 2017
CRIMINAL APPEAL NO.100035 OF 2017
CRIMINAL APPEAL NO.100201 OF 2017
CRIMINAL APPEAL NO.100202 OF 2017
CRIMINAL APPEAL NO.100209 OF 2017
IN CRIMINAL APPEAL NO.100210 OF 2017:
BETWEEN:
STATE OF KARNATAKA
THROUGH CIRCLE INSPECTOR OF POLICE
Digitally SANDUR CIRCLE, SANDUR
signed by REPRESENTED BY ADDL. STATE PUBLIC PROSECUTOR
VINUTHA M HIGH COURT OF KARNATAKA
Location: DHARWAD BENCH.
HIGH
COURT OF ...APPELLANT
KARNATAKA
(BY SRI M. B. GUNDAWADE, ADDL. S.P.P.)
AND:
K. BASHASAB
S/O NABISAB
AGE: 47 YEARS, MUSLIM, LORRY DRIVER
R/O: 2ND WARD, MARIYAMMANAHALLI VILLAGE
HOSAPETE TALUK.
...RESPONDENT
(BY SRI K. L. PATIL, ADVOCATE)
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NC: 2023:KHC-D:12316-DB
CRL.A No. 100210 of 2017
C/W CRL.A No. 100032 of 2017, CRL.A No.
100033 of 2017, CRL.A No. 100034 of 2017,
CRL.A No. 100035 of 2017, CRL.A No.
100201 of 2017, CRL.A No. 100202 of 2017,
CRL.A No. 100209 of 2017
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND
(3) OF CR.P.C., PRAYING TO GRANT LEAVE TO APPEAL AND TO SET
ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 6.01.2017
PASSED BY THE III ADDL. DISTRICT AND SESSIONS JUDGE,
BALLARI IN S.C. NO.5017/2014 AND TO CONVICT AND SENTENCE
THE RESPONDENT / ACCUSED FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 143, 147, 148, 323, 324, 504, 506 AND 302 READ
WITH SECTION 149 OF IPC.
IN CRIMINAL APPEAL NO.100032 OF 2017
BETWEEN:
SRI KHAJASAB
S/O MABUSAB KOTTAL
AGE: 57 YEARS
OCC: AGRICULTURIST
R/O MARIYAMMANAHALLI
HOSAPETE, BELLARI
...APPELLANT
(BY SRI SRINAND A. PACHHAPURE AND
SMT. PALLAVI S. PACHHAPURE, ADVOCATES)
AND:
1. THE STATE OF KARNATAKA
THROUGH CIRCLE INSPECTOR OF POLICE
SANDUR CIRLCE, SANDUR
NOW REP. BY S.P.P., HIGH COURT OF KARNATAKA
DHARWAD BENCH, AT DHARWAD.
2. SRI K. BASHEER SAB S/O NABISAB
AGE: 41 YEARS
OCC: LORRY DRIVER
R/O: 2ND WARD, MARIYAMMANAHALI
HOSAPETE
BELLARI.
3. SRI K. ISMAIL S/O NABISAB
AGE:61 YEARS
OCC: LORRY DRIVER
R/O: 2ND WARD,
MARIYAMMANAHALI
HOSAPETE
BELLARI.
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NC: 2023:KHC-D:12316-DB
CRL.A No. 100210 of 2017
C/W CRL.A No. 100032 of 2017, CRL.A No.
100033 of 2017, CRL.A No. 100034 of 2017,
CRL.A No. 100035 of 2017, CRL.A No.
100201 of 2017, CRL.A No. 100202 of 2017,
CRL.A No. 100209 of 2017
4. SRI K. GIDDUSAB S/O NABISAB
AGE: 61 YEARS, OCC: LORRY DRIVER
R/O: 2ND WARD, MARIYAMMANAHALI
HOSAPETE
BELLARI.
5. SMT.KAJABANNI
W/O K. BASHASAB
AGE: 43 YEARS
OCC: HOUSEWIFE
R/O: 2ND WARD, MARIYAMMANAHALI
HOSAPETE
BALLARI.
6. SRI ASLAM
S/O BASHA SAB
AGE: 22 YEARS
OCC: STUDENT
R/O: 2ND WARD, MARIYAMMANAHALI
HOSAPETE
BELLARI.
7. SRI K. RAFIQ
S/O GIDDUSAB
AGE: 31 YEARS
OCC: BELDAR
R/O: 2ND WARD, MARIYAMMANAHALI
HOSAPETE
BELLARI.
8. SRI K. BASHA
S/O GIDDUSAB
AGE: 27 YEARS
OCC: BELDAR
R/O: 2ND WARD, MARIYAMMANAHALI
HOSAPETE
BELLARI.
9. SRI RAJAMABI @ RAJABI
W/O GIDDUSAB
AGE: 48 YEARS
OCC: HOUSEWIFE
R/O: 2ND WARD, MARIYAMMANAHALI
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NC: 2023:KHC-D:12316-DB
CRL.A No. 100210 of 2017
C/W CRL.A No. 100032 of 2017, CRL.A No.
100033 of 2017, CRL.A No. 100034 of 2017,
CRL.A No. 100035 of 2017, CRL.A No.
100201 of 2017, CRL.A No. 100202 of 2017,
CRL.A No. 100209 of 2017
HOSAPETE
BELLARI.
...RESPONDENTS
(BY SRI M.B. GUNDAWADE, ADDL. S.P.P., FOR R-1,
SRI PRASAD R. SIDHANTHI, ADV. FOR R-2 TO R-9)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372 OF
CR.P.C., PRAYING TO CALL FOR THE RECORDS IN S.C. NO.124/2013
AND SET ASIDE THE JUDGMENT OF ACQUITTAL DATED 6.01.2017
PASSED BY THE III ADDL. DISTRICT AND SESSIONS JUDGE,
BELLARI, SITTING AT HOSAPETE IN S.C. NO.124/2013 AND
CONVICT THE ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTIONS 143, 147, 148, 323, 324, 504, 506 AND 302 READ WITH
SECTION 149 OF IPC AND ALLOW THE APPEAL.
IN CRIMINAL APPEAL NO.100033 OF 2017
BETWEEN:
SRI KHAJASAB
S/O MABUSAB KOTTAL
AGE: 57 YEARS
OCC: AGRICULTURIST
R/O: MARIYAMMANAHALLI
HOSAPETE
BALLARI.
...APPELLANT
(BY SRI SRINAND A. PACHHAPURE AND
SMT. PALLAVI S. PACHHAPURE, ADVOCATES)
AND:
1. THE STATE OF KARNATAKA
THROUGH CIRCLE INSPECTOR OF POLICE
SANDUR CIRCLE, SANDUR
NOW REP. BY S.P.P., HIGH COURT OF KARNATAKA
DHARWAD BENCH AT DHARWAD.
2. SRI K. HUSSAIN BASHA @ 94 BASHA
S/O NABISAB
AGE: 50 YEARS
OCC: LORRY DRIVER
R/O: 2ND WARD, MARIYAMMANAHALLI
-5-
NC: 2023:KHC-D:12316-DB
CRL.A No. 100210 of 2017
C/W CRL.A No. 100032 of 2017, CRL.A No.
100033 of 2017, CRL.A No. 100034 of 2017,
CRL.A No. 100035 of 2017, CRL.A No.
100201 of 2017, CRL.A No. 100202 of 2017,
CRL.A No. 100209 of 2017
VILLAGE, HOSAPETE
BALLARI.
...RESPONDENTS
(BY SRI M.B. GUNDAWADE, ADDL. S.P.P. FOR R-1,
SRI PRASAD R. SIDHANTHI, ADV. FOR R-2).
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372 OF
CR.P.C., PRAYING TO CALL FOR THE RECORDS IN S.C. NO.169/2013
AND SET ASIDE THE JUDGMENT OF ACQUITTAL DATED 6.01.2017
PASSED BY THE III ADDL. DISTRICT AND SESSIONS JUDGE,
BELLARI, SITTING AT HOSAPETE IN S.C. NO.169/2013 AND SET
ASIDE THE JUDGMENT OF ACQUITTAL DATED 06.01.2017 AND
CONVICT THE ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTIONS 143, 147, 148, 323, 324, 504, 506 AND 302 READ WITH
SECTION 149 OF IPC AND ALLOW THE APPEAL.
IN CRIMINAL APPEAL NO.100034 OF 2017
BETWEEN:
SRI KHAJASAB
S/O MABUSAB KOTTAL
AGE: 57 YEARS
OCC: AGRICULTURIST
R/O: MARIYAMMANAHALLI VILLAGE
HOSAPETE
BALLARI.
...APPELLANT
(BY SRI SRINAND A. PACHHAPURE AND
SMT. PALLAVI S. PACHHAPURE, ADVOCATES)
AND:
1. THE STATE OF KARNATAKA
THROUGH CIRCLE INSPECTOR OF POLICE
SANDUR CIRCLE, SANDUR
NOW REP. BY S.P.P., HIGH COURT OF KARNATAKA
DHARWAD BENCH AT DHARWAD.
2. K. BASHASAB
S/O NABISAB
AGE: 47 YEARS
OCC: LORRY DRIVER
-6-
NC: 2023:KHC-D:12316-DB
CRL.A No. 100210 of 2017
C/W CRL.A No. 100032 of 2017, CRL.A No.
100033 of 2017, CRL.A No. 100034 of 2017,
CRL.A No. 100035 of 2017, CRL.A No.
100201 of 2017, CRL.A No. 100202 of 2017,
CRL.A No. 100209 of 2017
R/O: 2ND WARD, MARIYAMMANAHALLI
VILLAGE, HOSAPETE
BALLARI.
...RESPONDENTS
(BY SRI M.B. GUNDAWADE, ADDL. S.P.P. FOR R-1,
SRI. PRASAD R. SIDHANTHI, ADV. FOR R-2).
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372 OF
CR.P.C., PRAYING TO CALL FOR THE RECORDS IN
S.C. NO.5017/2014 AND SET ASIDE THE JUDGMENT OF ACQUITTAL
DATED 6.01.2017 PASSED BY THE III ADDL. DISTRICT AND
SESSIONS JUDGE, BELLARI, SITTING AT HOSAPETE IN
S.C. NO.5017/2014 AND CONVICT THE ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTIONS 143, 147, 148, 323, 324, 504, 506
AND 302 READ WITH SECTION 149 OF IPC AND ALLOW THE APPEAL.
IN CRIMINAL APPEAL NO.100035 OF 2017
BETWEEN:
SRI KHAJASAB
S/O MABUSAB KOTTAL
AGE: 57 YEARS
OCC: AGRICULTURIST,
R/O: MARIYAMMANAHALLI VILLAGE,
HOSAPETE
BALLARI.
...APPELLANT
(BY SRI SRINAND A. PACHHAPURE AND
SMT. PALLAVI S. PACHHAPURE, ADVOCATES)
AND:
1. THE STATE OF KARNATAKA
THROUGH CIRCLE INSPECTOR OF POLICE
SANDUR CIRCLE, SANDUR
NOW REP. BY S.P.P.,
HIGH COURT OF KARNATAKA
DHARWAD BENCH AT DHARWAD.
2. SRI HONNURALI
S/O LATE MOHAMMED SAB
AGE: 29 YEARS
-7-
NC: 2023:KHC-D:12316-DB
CRL.A No. 100210 of 2017
C/W CRL.A No. 100032 of 2017, CRL.A No.
100033 of 2017, CRL.A No. 100034 of 2017,
CRL.A No. 100035 of 2017, CRL.A No.
100201 of 2017, CRL.A No. 100202 of 2017,
CRL.A No. 100209 of 2017
OCC: TRACTOR DRIVER
R/O: 2ND WARD, MARIYAMMANAHALLI VILLAGE
HOSAPETE,
BALLARI.
3. SRI K. RAJABAKSHI
S/O LATE MOHAMMED SAB
AGE: 27 YEARS
OCC: TRACTOR DRIVER
R/O: 2ND WARD, MARIYAMMANAHALLI VILLAGE,
HOSAPETE
BALLARI.
...RESPONDENTS
(BY SRI M.B. GUNDAWADE, ADDL. S.P.P. FOR R-1,
SRI. PRASAD R. SIDHANTHI, ADV. FOR R-2 AND R-3)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372 OF
CR.P.C., PRAYING TO CALL FOR THE RECORDS IN S.C.
NO.5033/2014 AND SET ASIDE THE JUDGMENT OF ACQUITTAL
DATED 6.01.2017 PASSED BY THE III ADDL. DISTRICT AND
SESSIONS JUDGE, BELLARI, SITTING AT HOSAPETE IN S.C.
NO.5033/2014 AND CONVICT THE ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTIONS 143, 147, 148, 323, 324, 504, 506
AND 302 READ WITH SECTION 149 OF IPC AND ALLOW THE APPEAL.
IN CRIMINAL APPEAL NO. 100201 OF 2017
BETWEEN:
STATE OF KARNATAKA
THROUGH CIRCLE INSPECTOR OF POLICE
SANDUR CIRCLE, SANDUR
REPRESENTED BY ADDL. STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
DHARWAD BENCH, DHARWAD.
...APPELLANT
(BY SRI. M. B. GUNDAWADE, ADDL. S.P.P.)
AND:
1. HONNURRALI
S/O LATE MOHAMMED SAB
AGE: 29 YEARS
-8-
NC: 2023:KHC-D:12316-DB
CRL.A No. 100210 of 2017
C/W CRL.A No. 100032 of 2017, CRL.A No.
100033 of 2017, CRL.A No. 100034 of 2017,
CRL.A No. 100035 of 2017, CRL.A No.
100201 of 2017, CRL.A No. 100202 of 2017,
CRL.A No. 100209 of 2017
OCC: TRACTOR DRIVER
R/O: 2ND WARD, MARIYAMMANAHALLI VILLAGE
HOSAPETE TALUK.
2. K.RAJABAKSHI
S/O LATE MOHAMMED SAB,
AGE: 27 YEARS
OCC: TRACTOR DRIVER
R/O: 2ND WARD, MARIYAMMANAHALLI.
...RESPONDENTS
(BY SRI K. L. PATIL, ADVOCATE FOR R-1 AND R-2)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (1)
AND (3) OF CR.P.C., PRAYING TO GRANT LEAVE TO APPEAL AND TO
SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED
6.01.2017 PASSED BY THE III ADDL. DISTRICT AND SESSIONS
JUDGE, BALLARI IN S.C. NO.5033/2014 AND TO CONVICT AND
SENTENCE THE RESPONDENT / ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 143, 147, 148, 323, 324, 504, 506
AND 302 READ WITH SECTION 149 OF IPC.
IN CRIMINAL APPEAL NO.100202 OF 2017
BETWEEN:
STATE OF KARNATAKA
THROUGH CIRCLE INSPECTOR OF POLICE
SANDUR CIRCLE, SANDUR
REPRESENTED BY ADDL. STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
DHARWAD BENCH, DHARWAD.
...APPELLANT
(BY SRI M.B. GUNDAWADE, ADDL. S.P.P.)
AND:
1. K. BASHEER SAB
S/O NABISAB
AGE: 41 YEARS, OCC: LORRY DRIVER
R/O 2ND WARD MARIYAMMANAHALLI VILLAGE
HOSAPETE TALUK.
-9-
NC: 2023:KHC-D:12316-DB
CRL.A No. 100210 of 2017
C/W CRL.A No. 100032 of 2017, CRL.A No.
100033 of 2017, CRL.A No. 100034 of 2017,
CRL.A No. 100035 of 2017, CRL.A No.
100201 of 2017, CRL.A No. 100202 of 2017,
CRL.A No. 100209 of 2017
2. K. ISMAIL
S/O NABISAB
AGE: 61 YEARS, MUSLIM
LORRY DRIVER, R/O: 2ND WARD
MARIYAMMANAHALLI VILLAGE
HOSAPETE TALUK.
3. K.GIDDUSAB
S/O NABISAB
AGE: 61 YEARS, MUSLIM
LORRY DRIVER, R/O: 2ND WARD
MARIYAMMANAHALLI VILLAGE
HOSAPETE TALUK.
4. SMT. KAJABANNI
W/O BASHASAB
AGE: 43 YEARS, MUSLIM
OCC: HOUSEWIFE, R/O: 2ND WARD
MARIYAMMANAHALLI VILLAGE
HOSAPETE TALUK.
5. ASLAM
S/O BASHA SAB
AGE: 22 YEARS, MUSLIM
OCC: STUDENT
R/O: 2ND WARD
MARIYAMMANAHALLI VILLAGE
HOSAPETE TALUK.
6. K.RAFIQ
S/O GIDDUSAB
AGE: 31 YEARS, MUSLIM
OCC: BELDER
R/O: 2ND WARD
MARIYAMMANAHALLI VILLAGE
HOSAPETE TALUK.
7. K. BASHA
S/O GIDDUSAB
AGE: 27 YEARS, MUSLIM
OCC: BELDER, R/O: 2ND WARD
MARIYAMMANAHALLI VILLAGE
HOSAPETE TALUK.
- 10 -
NC: 2023:KHC-D:12316-DB
CRL.A No. 100210 of 2017
C/W CRL.A No. 100032 of 2017, CRL.A No.
100033 of 2017, CRL.A No. 100034 of 2017,
CRL.A No. 100035 of 2017, CRL.A No.
100201 of 2017, CRL.A No. 100202 of 2017,
CRL.A No. 100209 of 2017
8. K.RAJAMABI @ RAJABI
W/O GIDDUSAB
AGE: 48 YEARS, MUSLIM
OCC: SINECURE, R/O: 2ND WARD
MARIYAMMANAHALLI VILLAGE
HOSAPETE TALUK.
...RESPONDENTS
(BY SRI PRASAD R. SIDHANTI, ADV. FOR R-1 TO R-8)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND
(3) OF CR.P.C., PRAYING TO GRANT LEAVE TO APPEAL AND TO SET
ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL 6.01.2017
PASSED BY THE III ADDL. DISTRICT AND SESSIONS JUDGE,
BALLARI, SITTING AT HOSAPETE IN S.C. NO.124/2013 AND TO
CONVICT AND SENTENCE THE RESPONDENT / ACCUSED FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 143, 147, 148, 323, 324,
504, 506 AND 302 READ WITH SECTION 149 OF IPC.
IN CRIMINAL APPEAL NO.100209 OF 2017
BETWEEN:
STATE OF KARNATAKA
THROUGH CIRCLE INSPECTOR OF POLICE
SANDUR CIRCLE, SANDUR
REPRESENTED BY
ADDL. STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
DHARWAD BENCH
DHARWAD.
...APPELLANT
(BY SRI. M. B. GUNDAWADE, ADDL. S.P.P.)
AND:
K. HUSSAIN BASHA @ BASHA
S/O NABISAB, AGE: 53 YEARS
MUSLIM, OCC: LORRY DRIVER
R/O: 2ND WARD,
MARIYAMMANAHALLI VILLAGE
HOSAPETE TALUK.
...RESPONDENT
(BY SRI. K. L. PATIL, ADVOCATE)
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NC: 2023:KHC-D:12316-DB
CRL.A No. 100210 of 2017
C/W CRL.A No. 100032 of 2017, CRL.A No.
100033 of 2017, CRL.A No. 100034 of 2017,
CRL.A No. 100035 of 2017, CRL.A No.
100201 of 2017, CRL.A No. 100202 of 2017,
CRL.A No. 100209 of 2017
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND
(3) OF CR.P.C., PRAYING TO GRANT LEAVE TO APPEAL AND TO SET
ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 6.01.2017
PASSED BY THE III DISTRICT AND SESSIONS JUDGE, BALLARI IN
S.C. NO.169/2013 AND TO CONVICT THE SENTENCE THE
RESPONDENT / ACCUSED FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 143, 147, 148, 323, 324, 504, 506 AND 302 READ WITH
SEC. 149 OF IPC.
THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 19.07.2023 AND COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, VENKATESH NAIK T., J., DELIVERED THE
FOLLOWING:
JUDGMENT
The State as well as the complainant, being aggrieved by the judgment and order of acquittal dated 06.01.2017 passed by the learned III Additional District and Sessions Judge, Ballari (sitting at Hospete), have preferred these appeals against accused Nos.1 to 12.
2. The State has preferred Crl.A.No.100210/2017 arising out of SC No.5017/2014, Crl.A.No.100202/2017 arising out of SC No.124/2013, Crl.A.No.100209/2017 arising out of S.C. No.169/2013, Crl.A.No.100201/2017 arising out of in S.C. No.5033/2014, whereas, the complainant has preferred Crl.A.No.100035/2017 arising
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NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 out of S.C. No.5033/2014, Crl.A.No.100034/2017 arising out of S.C. No.5017/2014, Crl.A.No.100033/2017 arising out of S.C. No.169/2013 and Crl.A.No.100032/2017 arising out of S.C. No.124/2013, wherein, the trial Court has acquitted accused Nos.1 to 12 for the offences punishable under Sections 143, 147, 148, 323, 324, 504, 506 and 302 read with Section 149 of the Indian Penal Code (hereinafter referred to as 'the IPC', for short).
3. Brief facts of the prosecution case are as under:
As per the case of the complainant-PW.1-Khaja Sab, there was a civil dispute pending between the family of PW-1 and accused No.1-K.BashaSab of Mariyammanahalli, Hospete, in respect of lands bearing Sy.Nos.16 and 17 of Nandibandi village and an open space by the side of their house. There was enmity prevailing for kidnapping of daughter of accused No.1-K.BashaSab by name Aminabi (PW.16) by deceased Allabakshi, who is none other than the son of the complainant/PW.1. It is contended that on
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NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 06.06.2013, about 4:10 pm, near the house of PW.1, all the accused formed an unlawful assembly with common object of eliminating the son of PW.1 and his family members in respect of the civil dispute and kidnap of daughter of accused No.1, picked up quarrel with them, abused in indecent words and threatened with dire consequences to eliminate their lives and also committed rioting by holding stones, clubs and rod by using force and violence. It is contended that, in furtherance of common object, accused No.3-Ismail, accused No.4-Giddu Sab assaulted PW.1 on his left eye and head with stones.
Accused No.7-Aslam assaulted PW.2-Hussain Peera with club on his head and neck. At the same time, Allabakshi (deceased) came near the house of one Nazeer Sab and accused No.1 assaulted him with rod on his head and right eye; accused No.2-K. Basheer Sab assaulted the deceased with club on his head; accused No.8-Honnurali, accused No.9-Rafiq, accused No.10-K. Basha and accused No.11-
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NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 Rajabakshi throwed the injured Allabakshi to the ground by holding his hands and legs; accused No.6-Kajabanni, accused No.12-Rajamabi dragged the hair of PW-4- Khairunbi and assaulted her and inflicted simple injuries. Further, all the accused indiscriminately assaulted PWs.1 to 5 and deceased Allabakshi and thus caused simple and grievous injuries. On the same day, the injured Allabakshi was shifted to the hospital for treatment and he took treatment as an inpatient till 12.06.2013 and on 12.06.2013 at 1:30 am, the injured Allabakshi succumbed to the injuries at VIMS Hospital, Ballari. Hence, PW-1 lodged the complaint as per Ex.P-1 at Mariyammanahalli Police Station. The same was registered in Crime No.63/2013 and the complaint was initially registered for the offences punishable under Sections 143, 147, 148, 323, 324, 326, 504 and 506 read with Section 149 of the IPC. During the course of treatment, as the injured Allabakshi succumbed to the injuries on 12.06.2013,
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NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 Section 302 of IPC was incorporated. The Investigating Officer visited the spot, drew panchanama, recorded the statements of the witnesses, recovered all the incriminating materials under seizure panchanama, arrested the accused persons and after collecting all the material documents, filed charge sheet against the accused persons before the jurisdictional Magistrate.
4. On receipt of charge sheet, the jurisdictional Magistrate took cognizance of offences under Section 190(1)(b) of the Code of Criminal Procedure (hereinafter referred to as 'the Cr.P.C.', for short) against accused persons. The case was committed to the court of Sessions for trial. Soon after committal of the case, the learned Sessions Judge secured the presence of the accused and after hearing both sides, charges were framed and read over to the accused in the language known to them, they pleaded not guilty and claimed to be tried. The trial Court
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NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 recorded common evidence in S.C.No.120/2013 and passed common judgment.
5. The prosecution in order to prove its case, examined in all 26 witnesses as PWs.1 to 26 and got marked 26 documents as Exs.P-1 to P-26 and 8 material objects marked as M.Os.1 to 8. The trial court, after conclusion of the trial, recorded the statements of the accused under Section 313 of the Cr.P.C. by explaining the incriminating material appeared in the evidence of the prosecution witnesses and the accused denied the same. The case of the accused persons was one of the total denial of the charges and they did not lead any defence evidence on their behalf.
6. The trial court, after hearing the learned counsel on both sides, framed the following points for consideration:
''1. Whether the prosecution proves beyond all reasonable doubt that the accused on
- 17 -
NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 6.6.2013 at about 4.00 p.m., infront of the house of the complainant at Ward No.2 of M.M.Halli due to earlier enmity of land dispute and kidnapping C.W.18:Ameenabi, daughter of accused No.1 by the son of complainant deceased Allabakshi, formed an unlawful assembly with the common object of committing murder of Allabakshi and by using force and violence and by holding rod, stone, club committed rioting and thereby committed an offence punishable U/s. 148 R/w.S. 149 of IPC?
2. Whether the prosecution further proves beyond all reasonable doubt that, on the above said date, time and place in furtherance of common object abused the complainant, his wife, sons in indecent words so as to insult and provoke them to break the peace and thereby committed the offence punishable U/s.504 R/w.S.149 of IPC?
3. Whether prosecution proves beyond all reasonable doubt that you accused No.6 and 12 on the above said date, time and place in furtherance of common object, dragged C.W.8 Khairunbi, the wife of the complainant
- 18 -
NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 by holding her hair and threatened the complainant and his family members with life and thereby committed the offence punishable U/s.506 R/w.S. 149 of IPC?
4. Whether the prosecution proves beyond all reasonable doubt that, accused No.6 and 12 on the above said date, time and place, in furtherance of common object assaulted C.W.8:Khairunbi, the wife of the complainant with hands and voluntarily caused simple hurts and thereby committed offence punishable U/s.323 R/w.S.149 of IPC?
5. Whether the prosecution proves beyond all reasonable doubt that, accused No.3 and 4 in furtherance of common object on the above said date, time and place, assaulted the complainant with stone on head and left eye, accused No.7 assaulted C.W.2: Hussain Peer, the son of the complainant with club on his head and back and voluntarily caused grievous hurts to them and thereby committed an offence punishable U/s.324 R/w.S. 149 of IPC?
6. Whether prosecution proves beyond all reasonable doubt that, on the above said
- 19 -
NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 date, time and place, accused No.1 in furtherance of common object assaulted deceased Allabakshi intentionally and caused his death by assaulting him with rod on his head, right eye and accused No.2 assaulted him with club on head and accused No.8, 9, 10, 11 assaulted him by throwing him to the ground to commit his murder and said Allabakshi died due to said injuries while under treatment in the hospital and thereby committed the offence punishable U/s.302 R/w.S.148 of IPC?
7. What order?''
7. The trial Court based on the oral and documentary evidence on record, acquitted accused Nos.1 to 12 holding that the prosecution has failed to prove that the accused were members of unlawful assembly and committed rioting on 06.06.2013 at about 4:10 pm in front of the house of PW-1 at Mariyammanahalli village and they not only insulted PWs.1 to 5 to cause their breach of peace, but also made criminal intimidation with dire
- 20 -
NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 consequences to eliminate the lives of PWs.1 to 5 and Allabakshi and voluntarily caused hurt to Khairunbi-PW-4 by accused Nos.6 and 12 and thereby caused simple injuries, accused Nos.3 and 4 in furtherance of their common object assaulted PW-1 with stone on his head and left eye, accused No.7 assaulted PW-2 with club on his head and back and thus voluntarily caused hurt. Accused No.1 in furtherance of the common object assaulted deceased Allabakshi with iron rod on his head and right eye, accused No.2 assaulted him with club on his head and accused Nos.8 to 11 threw Allabakshi to the ground and thereby committed murder of Allabakshi. Accordingly, the trial Court answered point Nos.1 to 6 in the negative and consequently acquitted accused Nos.1 to 12 for the offences alleged against them.
8. Aggrieved by the judgment of acquittal passed by the trial Court, the State as well as the complainant have preferred these appeals.
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NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017
9. Heard the learned Additional State Public Prosecutor for the State, the learned counsel for the complainant and the learned counsel for the accused persons.
10. Learned Additional SPP contended that the judgment and order of acquittal is contrary to the law, facts and evidence on record. Though there are sufficient material, particularly, the evidence of PWs.1 to 5 who are an injured eyewitnesses, whose evidence is fully supported by the prosecution evidence, the trial Court has ignored the same without properly appreciating and assigning reasons to disbelieve their oral testimony and wrongly directed itself to acquit the accused persons. He further submitted that, there are lots of materials placed before the trial Court to establish that, there was strong motive on the part of the accused persons to do away with the life of the deceased, but, the trial Court has not considered this aspect, in its proper prospective. Considering the
- 22 -
NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 minor and ignorable inconsistencies and contradictions, the trial Court has acquitted the accused persons. It is contended that PWs.1 to 5 are the injured witnesses. PWs.6, 7, 13, 16, 17, 19 and 21 are other eyewitnesses who have supported the case of the prosecution and all these witnesses have specifically stated about the individual overt acts of each of the accused persons. Further, the evidence of these witnesses is fully corroborated by the evidence of PW.26 - Doctor, who treated the injured persons and the deceased, but, the trial Court has not properly read and appreciated the evidence of these witnesses in its proper perspective and thereby erred in acquitting accused Nos.1 to 12. He further contended that, the trial court has discarded the evidence of an eyewitnesses on the ground that all the eyewitnesses and injured witnesses are related to each other and they are an interested witnesses. It is contended that, the trial Court has wrongly held that they
- 23 -
NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 are in inimical terms with the accused family and hence, the reasoning assigned by the trial Court is contrary to the principles laid down by the Hon'ble Apex Court in catena of decisions and therefore, the reasons assigned by the trial Court is not sustainable in law.
11. He further contended that the trial Court has acquitted accused Nos.1 to 12 on the ground that there was no clear evidence of infliction of particular injury by particular accused with the particular object but the said reasoning is not sustainable, as the material witnesses have specifically and categorically stated about the presence of the accused persons holding particular weapon on the date and time of the incident. It is contended that, all the witnesses have stated about the specific overt acts attributed to the accused and all the eyewitnesses to the incident and injured witnesses have clearly stated that accused Nos.3 and 4 have assaulted PW.2 on his left eye and head with stones, accused No.7 assaulted with club on
- 24 -
NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 his head and back, accused No.1 assaulted with rod to deceased Allabakshi on his head and right eye, accused No.2 assaulted with club on the head of the deceased, accused Nos.8, 9, 10 and 11 threw the deceased to the ground by holding his hands and legs, accused Nos.6 and 12 dragged PW.4 and assaulted her. Hence, the trial Court has not considered this clinching and reliable evidence which was corroborated by other independent eyewitnesses. Thus, the reasoning assigned by the trial Court is contrary to the evidence on record. It is contended that the trial Court also acquitted the accused persons on the ground that the prosecution has not proved the spot, as the pancha witnesses have not supported the case of the prosecution, as such, the said reasoning is also not sustainable since the Investigating Officer has categorically stated about drawing of panchanamas at the place of incident but nothing is elicited in his evidence to disbelieve his testimony and nothing has been elicited
- 25 -
NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 about any animosity or ill-will between the accused persons and the investigating officer. Hence, the reasoning assigned by the trial Court is not sustainable in law.
12. It is contended that the trial Court has acquitted accused Nos.1 to 12 on the ground that the deceased was working as bar bender and mason in construction of house of PSI and the said PSI who has investigated the case has not been examined before the Court and accordingly, the trial Court has drawn an adverse inference against the prosecution. The reasoning assigned by the trial Court is not sustainable for the simple reason that the role of investigation made by the PSI was deposed by PW-25-the Investigating Officer. Therefore, the PSI had not come forward to give evidence before the trial Court and on these grounds, the reasons assigned by the trial Court are not sustainable. It is contended that the judgment and order of acquittal would give a wrong signal to the society as the incident has occurred in the broad day light, and
- 26 -
NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 the incident had been witnessed by many witnesses and they have supported the case of the prosecution. Therefore, the judgment of acquittal passed by the trial Court is not sustainable. It is further contended that the trial Court ought to have convicted the accused, taking into consideration of the evidence of the eyewitnesses i.e. PWs.1 to 4, 6, 7, 13, 16, 19, 2 and 21, but, failed to consider the same which lead to miscarriage of justice. The learned Additional SPP further contended that the present case does not come within the purview of case and counter case as the time shown in both the cases are different and places are also different. Further, he submits that in the case filed by the accused persons against the complainant party, the complainant party is acquitted of the offences. Therefore on the same ground the present accused cannot be acquitted. Further, being aggrieved by the judgment of acquittal, the accused persons have not preferred any appeal against the acquittal of the
- 27 -
NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 complainant party. Hence, the learned Additional SPP prayed to allow the appeals. The learned Additional SPP in support of his contentions, has relied on the following judgments:
a) ''Karulal and others v. State of Madhya Pradesh reported in (2021) 13 Supreme Court Cases 391.
b) Baleshwar Mahto and another v. Sate of Bihar and another reported in (2017) 3 Supreme Court Cases 152.
c) Joint Commissioner of Income Tax v. Classic Industries Limited reported in (2017) 13 Supreme Court Cases 80.
d) State of Karnataka, by Circle Inspector of Police v. Hosakeri Ningappa and another reported in ILR 2012 KAR 509.
e) Manodutt v. State of Uttar Pradesh reported in AIR online 2012 SC 25
f) Jodhan v. State of Madhya Pradesh reported in AIR 2015 SCW 3589''
13. The learned counsel for complainant submitted similar arguments as that of the submissions made by learned Additional SPP and prayed to convict the accused persons.
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NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017
14. On the other hand, learned counsel Sri. K.L. Patil, for the accused persons has contended that, in the instant case PWs.1 to 5 are the family members and deceased is none other than the son of PW-1. In the present case, there are no independent witnesses, whose evidence is corroborated with the oral testimony of PWs.1 to 5 and the prosecution must prove that there was homicidal death of deceased, as deceased was under coma for 6 days and his whereabouts was not brought on record by the prosecution and there is no evidence to the effect as to who treated the injured Allabakshi during those 6 days; whether he was conscious or unconscious, nobody has stated about this aspect and the investigating Officer has not attempted to record the statement of the injured Allabakshi during those 6 days. He further contended that the treated Doctor has not been examined. Though, PW.20 is examined, but she has not treated the deceased and she too has not stated that the injured Allabakshi was
- 29 -
NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 under coma. Therefore, the burden is cast on the prosecution to prove that the accused persons have committed murder of Allabakshi and they are guilty of the offences charged against them. In fact, PWs.1 to 5 are interested witnesses and there is a case and a counter case between the complainant party and the accused persons. As per the hospital records, the time of alleged incidents are one and the same and the complainant party are aggressors, they attacked on the family of accused persons, they damaged the house of accused No.1 and they have not explained injuries sustained by accused persons in the incident. It is contended that there was civil dispute between the accused persons and the family of PW.1 and the fact that deceased Allabakshi had kidnapped the daughter of accused No.1(PW.16), therefore, deceased Allabakshi prior to the alleged incident was remanded to judicial custody and prior to the alleged incident, he was released from judicial custody and in this
- 30 -
NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 regard, the family of the complainant become aggressive. The counsel further contended that in the evidence of PW.1, he has stated that accused No.1 and others came to commit offence against the family members as such, present incident occurred, but on perusal of Ex.P1 - complaint, the accused came and assaulted PWs.1 to 5 and deceased Allabakshi. It is contended that PWs.1 to 5 took treatment in the hospital voluntarily and the police never brought them for any treatment and PWs.1 to 5 took treatment as out patients. Further, in the compliant (Ex.P1), there is no allegation of intentional insult (Sec.504), criminal intimidation (Sec.506), unlawful assembly (Sec.143), rioting(Sec.147), but, in the evidence they have made some improvements. He further contended that PWs.7 to 11, who are important eyewitnesses to the incident, have not supported the case of the prosecution. Further, there is delay in sending the FIR as the complaint was lodged on 6.06.2013, but it
- 31 -
NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 reached the court on 07.06.2013 at 10:00am and there is 18 hours delay and the said delay has not been explained properly. Further, as per the prosecution case, the alleged incident had occurred in front of the house of PW.1 and the incident also occurred in front of the house of one Nazeer Sab. In fact, as per the prosecution case, there are two spots of incident, one is in front of the house of PW.1 and the other is, in front of the house of one Nazeer Sab. But, the change of place of spot has not been explained by the prosecution. It is contended that there is case and counter case and as per law, same Investigating Officer has to conduct the investigation, but in this case, there are two different Investigating Officers and though the present case is a case arising out of counter case tried by Court of Sessions and the case filed by the complainant was tried by the learned Civil Judge and JMFC, Hospete. On this ground also, the accused persons are entitled for acquittal. Further, he submits that no reasons are
- 32 -
NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 assigned/explained for the delay in recording the statements of eyewitnesses by the Investigating Officer.
15. It is contended that, as these appeals are filed against the judgment of acquittal, the court must be very cautious while reversing the impugned judgment. On these grounds, the learned counsel for the accused submits that the trial Court was justified in passing the impugned judgment of acquittal and prays to dismiss the appeals.
16. In support of his contentions, the learned counsel has relied on the following decisions:
a) ''Bhagwan Tana Patil v. The State of Maharashtra reported in AIR 1974 Supreme Court 21.
b) Bankey Lal and others v. The State of U.P. reported in AIR 1971 Supreme Court 2233.''
17. After hearing the learned counsel for the parties to the lis, the following point would arise for consideration:
- 33 -
NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 ''Whether the appellant - State and the complainant have made out any strong and reasonable grounds to interfere with the judgment of acquittal passed by the trial Court in favour of the respondents/accused Nos.1 to 12?"
18. Before adverting to the appreciation of evidence of the witnesses on record, we feel, it is just and necessary to have a cursory look at the evidence of the prosecution witnesses.
a) PW.1- Khajasab, is the complainant and father of deceased Allabakshi, in his evidence, he has stated that his house is situated in front of the house of accused No.1, in second ward of MM Halli and there was ill-will prevailing between himself and family members of the accused since 12 years in respect of land and a open space and accused No.1 lodged a complaint against the deceased son of complainant by name Allabakshi for kidnapping of his daughter Aminabi (PW.16) and therefore, Allabakshi was
- 34 -
NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 sent to jail and later he was released on bail prior to the alleged incident. PW.1 further stated that, on the date of incident, accused came at 4 p.m. and abused in filthy language, accused No.3 -K. Ismail assaulted him on his head, accused No.4 - Giddu Sab assaulted him with stone on his head, accused No.7 assaulted him on his head and back with club, accused No.1 - Basha Sab assaulted Allabakshi with iron rod on his head and eye, accused No.2 K. Basheer Sab assaulted on his head with club and inflicted bleeding injuries, accused Nos.8, 9, 10 and 11 throwed Allabakshi to the ground, accused Nos.6 and 12 assaulted his wife by holding her hair. In the meanwhile, PW.3 - Irfan and PW.5 - Rehaman tried to pacify the quarrel, but, accused No.9 - Rafiq, accused No.8 - Honnurali assaulted with hands. PW.6 - Gaibu sab, PW.11 - Gafoor Sab and one Imam Sab came to pacify the quarrel. All the injured persons were shifted to the Government hospital for treatment and PW.1 lodged complaint as per
- 35 -
NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 Ex.P1. PW.1 was cross examined. In the cross examination, he admitted that there was a civil dispute between his family members and family of accused since 10 years. Accused No.1 filed complaint against the deceased alleging kidnap of his daughter- PW.16. He admits that on 06.06.2013 at 4.00 pm, himself, and PW.2, PW.3, PW.4 and PW.5 went to the house of accused No.1 committed rioting , thus case has been registered. He further admits that, initially he lodged complaint against 7 accused only. At the time of incident all male members had been to work, and only female members were in the house viz wife and daughter in law of PW.1 and the male members came to the spot soon after the incident.
b) PW.2 - Hussain Peera who is another injured witness has stated that, accused No.3-Ismail assaulted his father- PW1 with stone on left eye. Accused No.4-Giddu Sab also assaulted his father -PW1 with stone on head. Accused No.7-Aslam assaulted PW.2 with club on his head
- 36 -
NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 and back. PW.2 further stated that, accused No.2 K. Basheer Sab assaulted deceased Allabakshi on his head with club Accused Nos.8, 9, 10 and 11 thrown Allabakshi to the ground. He further stated that PW.5-Rehaman and his mother came to pacify the quarrel between accused No.8-Honnuralli, accused No.9-Rafiq, accused No.6- Kajabanni and accused No.12-Rajamabi. PW.2 was cross examined. In the cross examination, he admitted that there is civil dispute between his family members and family of accused in respect of land. He admits that, accused No.1 lodged complaint against deceased for kidnap of his daughter and for damage of the house of accused No.1. He further admits that though police visited M.M. Halli Hospital, they did not enquire him and recorded his statement. There is distance between the house of PW.1 and one Nazeer Sab. He further admits that deceased Allabakshi completed the centering work of the house of
- 37 -
NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 PSI-Jayaprakash and said Jayaprakash conducted investigation in kidnap case.
c) PW.3 - Irfan is son of PW1 and brother of deceased Allabakshi has stated that accused No.3 Ismail assaulted his father(PW.2) with stone on left eye, accused No.4- Giddu Sab assaulted his father with stone on head and PW.2-Hussain Peer with club and accused No.2-K. Basheer Sab assaulted Allabakshi on his head, accused No.6- Kajabanni and accused No.12-Rajamabi assaulted his mother by pulling her hair. PW.3 was cross examined. In the cross-examination, he has stated that there is civil dispute between them and deceased, kidnapped PW.16 Amina Bee, who is the daughter of accused No.1 and rest of the suggestions were denied.
d) PW.4 - Khairunbi, w/o of PW1 and the mother of deceased Allabakshi, has stated that accused No.3-Ismail, accused No.4-Giddu Sab assaulted PW.1 with stone on his left eye and also assaulted deceased Allabakshi, near the
- 38 -
NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 house of one Nazeer Sab with iron rod, accused No.2-K. Basheer Sab also assaulted PW.2 with club on the head of Allabakshi and her son PW.2- Hussain Peera, PW.3-Irfan PW.4-Khairunbi sustained injuries, further accused Nos.8 to 11 dragged her hair. In the cross examination, she denied that, one cannot see the house of Nazeer Sab from the place of PW.1. She admits that there was a civil dispute relating to the property and was decreed in their favour. She further admits that the deceased kidnapped the daughter of accused No.1.
e) PW.5 - Rehaman has stated that accused No.3- Ismail assaulted PW.1 with stone and accused No.1 assaulted deceased Allabakshi near the house of one Nazeer Sab with iron rod on his head. Accused No.2-K. Basheer Sab also assaulted the deceased Allabakshi with club on his head, accused No.8-Honnurali, accused No.9- Rafiq, accused No.10-K.Basha, accused No.11- K. Rajabakshi throwed the injured Allabakshi to the ground
- 39 -
NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 and accused Nos.8 and 9 also assaulted the deceased. In the cross examination, PW5 admits that, PW1 is his uncle, and he is working in BMM Factory, which is at a distance of 5km from his house and there is civil dispute pending between them and deceased Allabakshi kidnapped daughter of PW1.
f) PW.6 - Gaibusab, an eye witness to the incident, turned hostile to the case of prosecution and in the cross examination done by learned Public Prosecutor, he denied to have given statement before the Police as per Ex.P14 and PW.6 has not identified material objects Nos.1 to 8 articles.
g) PW.7-Azeem Sab in his evidence,has stated that there was quarrel between the family of complainant and family of accused and it was between ladies and somebody came and assaulted deceased Allabakshi, accused- Rehaman assaulted with rod on the head of Allabakshi, accused-Ismail assaulted with stone on the head of PW.1,
- 40 -
NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 accused-Basheer assaulted on the head of Allabakshi with club and after five days Allabakshi succumbed to the injuries. Hence, Police conducted inquest panchanama at VIMS Hospital, Bellari and seized material objects 1 to 8 in his presence. Therefore, the learned Public Prosecutor treated this witness as hostile witness and permitted to cross examine him. In the cross examination, he admitted all the suggestions made by the learned Public Prosecutor and in the cross examination done by the learned counsel for accused, this witness gave contrary evidence as stated in the chief examination.
h) PW.8-Rajabakshi the witness to the inquest panchanama in his evidence, he has stated that Police have conducted inquest panchanama on the dead body of Allabakshi and at that time, Police seized cloths of deceased and material objects 1 to 8. In the cross examination, he admits that PW.2, his uncle visited the hospital. The postmortem examination was completed and
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NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 the dead body was handed over to his uncle, the dead body was completely packed. Therefore, he did not see any injuries on the body of the deceased.
i) PW.9 - Hussain who is the relative of deceased Allabakshi is also witness to the inquest panchanama (EX.P13) who reiterated the evidence of PW8, but in the cross examination, he admits that, he do not know the date of death of deceased Allabakshi, he has not seen the clothes of deceased and he do not know about the incident.
j) PW.10 - Smt.Raziya Begum who is the wife of deceased Allabakshi, in her evidence, she has stated that accused No.3-Ismail, accused No.4-Giddu Sab assaulted PW.1 with stone and later on, accused No.1-Basha Sab assaulted her husband Allabakshi near the house of Nazeer Sab with iron rod on his head and accused No.2-K.Basheer Sab assaulted deceased Allabakshi with club on his head and accused Nos.8, 9, 10 and 11 throwed him to the ground by holding the shirt. In the cross examination, she
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NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 admits that, deceased Allabakshi was in prison in respect of kidnap case, hence there was rivalry between both the family. She further admits that one cannot see the house of Nazeer Sab, if anybody stand in front of house of PW1. She cannot identify all accused persons except, accused Basha Sab and rest of the suggestions were denied.
k) PW.11 - Gafur Sab, and PW.12 - Hussain Sab who are witnesses to spot mahazar (Ex.P2), have not supported the case of prosecution and thus they turned hostile to the case of prosecution and denied to have drawn mahazar in their presence and recovered material objects 1 to 5 articles at the spot.
l) PW.13 - Smt.Mamthaz is an eyewitness to the incident, however, she turned hostile to the case of prosecution. In the cross examination, she denied to have given the statement to the Police as per Ex.P.14.
m) PW.14 - Sri.M.Umesh - PDO, who has issued house extract of PW.1 as per Ex.P.15.
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NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017
n) PW.15 - Mansoor Basha, witness to recovery of clothes (seizure panchanama-Ex.P.7) in his evidence, he has stated that the Police have seized the clothes of deceased as per Material objects 6 to 8 under Ex.P7. In the cross examination he admits that, police did not issue any notice to him before conducting seizure panchanama, PW1 is his uncle and he brought PW15 to the Court.
o) PW.16 - Ameenabi, who is the daughter of accused No.1 has stated that deceased Allabakshi had forcibly taken her to Koppal on 03.02.2013 and committed rape on her, in this regard, her father- accused No.1 lodged complaint against the deceased Allabakshi, hence, he was arrested and remanded to judicial custody and later released on bail. She identified photos of the house of accused No.1, wherein, the family of complainant had damaged the house of accused No.1. In the cross examination she admits that on the day of alleged incident, PW1 and his family
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NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 members had come to her house and damaged the house, hence her father lodged complaint.
p) PW.17 - Dr.Yogiraj, who conducted autopsy on the dead body of the deceased Allabakshi. In his evidence, he has stated that on 12.06.2013, he conducted postmortem examination on the dead body of deceased Allabakshi and found following external injuries:
1. Laceration of 5X1 c.m. above right eye brow.
2. Another laceration of 1 X 5 c.m. on the right parietal region.
3. Laceration of 1 X 4 c.m. on left parietal region.
On dissection of the body, he noticed fracture of right parietal bone with extra dural hemorrhage. The death was due to head injury. Accordingly, he issued postmortem report as per Ex.P.16. He further stated that on 04.08.2013, the Police had also sent two wooden logs and metal rod (Material objects 1 to 3), thus, he examined said
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NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 articles and issued his opinion as per Ex.P.17. In the cross examination, he admitted that he has not treated the deceased Allabakshi. Police disclosed the history of assault but they did not furnished any documents, he has not seen the case sheet, X-ray of skull, he noticed suturing on the dead body of deceased. He has not mentioned said aspect in his report, he does not remember whether material objects 1 and 2 were packed and sealed before examination. He further admits that there is some mistake crept in mentioning the name of articles as logs instead of club. He further admits that he has not examined the articles like material objects 1 and 2. He has not described the description and shape of rod.
q) PW.18-Ravi Naik, Assistant Engineer, PWD, Hospete has stated that, as per the request of investigating officer, he visited the spot on 06.07.2013 and prepared map of the spot as per Ex.P.11.
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NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017
r) PW.19 - Sri.B.Somappa, who alleged to have advised both family of complainant and accused persons in respect of land dispute, but, he turned hostile to the case of prosecution and in the cross examination, he denied to have given statement as per Ex.P.18.
s) PW.20 - Dr.Radhika, in her evidence, she has stated that on 06.06.2013 at 5.30 p.m. victim Allabakshi was brought with history of assault and she noticed injury on head, right eye, left side forehead, upper part of head and those injuries are grievous in nature, she gave preliminary treatment to Allabakshi and referred him to Hospete Government Hospital for further treatment. She further stated that on the same day she examined other five injured persons by name Khajasab, Hussainpeera, Khairunbee, Irfan, Rehaman and issued wound certificate as per Exs.P.20 to 24. In the cross examination, she admits that the contusion mentioned in the wound certificate were superficial in nature and it would be self inflicted. She
- 47 -
NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 further admits that, she has not mentioned the shape and colour of injuries as there were no parallel edges. She has not assigned the reasons for each of the injuries, there were some old injuries on the victims, the injuries could be inflicted by accidental fall. She has not treated the victim Allabakshi. She further admits that there is some insertion in Expa, but, she has not treated such persons shown in Ex.P.19. She further admits that due to administrative work, she was unable to see the patient all the time. She further admits that, she cannot say as to whether said insertion is made to help the Police and she do not know the reason for the said insertion by other doctor.
t) PW.21 - Sri. Heggappa, police constable, who carried out the dead body of Allabakshi for postmortem examination and after postmortem examination, as per the instructions of the investigating officer, he handed over the dead body to family members of deceased Allabakshi. He further, stated that on 06.06.2013 at 5.20 p.m. as per the
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NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 instructions of PW.1-Khajasab, he drafted the Ex.P1- complaint. In the cross examination, PW.21 clearly admitted that in Ex.P1, the complainant has not stated that all the accused persons were assaulted Allabakshi in front of the house of one Nazeer Sab and PWs.1 to 5 were seen the incident. He further admits that complaint was prepared in hospital and he drafted the complaint and registered the same in crime No.60/2012. u) PW.22 - Karibasappa, who is the data entry operator, has stated that, he has not issued any khata extract of the house.
v) PW.23 - Sathyanarayana, retired ASI has stated that on 06.06.2013 at 5.20 p.m., he received MLC intimation. Hence, he went to hospital, recorded the statement of PW.1-Khaja sab and registered the complaint in crime No.63/2013 and submitted FIR to court and his higher authorities. In the cross examination, he admits that he has not given any statement before the investigating
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NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 officer and he has not received any MLC intimation. He has not written any complaint and complaint was written by PW.21. He further admits that the endorsement made in Ex.P1-complaint was not in his hand writing. He further admits that, as per the contents of Ex.P1, the alleged incident took place infront of the house of PW1-Khajasab. He further admits that Khajasab was not admitted to the hospital, as he was not sustained any injuries. w) PW.24 - Niranjangouda, who is Head Constable, in his evidence he has stated that on 07.06.2013 as per the directions of his higher authority, he visited the spot conducted the panchanama as per Ex.P2, seized material objects 1 to 5- a rod, two clubs and two stones from the spot, took photograph as per Ex.P3 to 6, recorded further statement of Nazeersab and recorded statement of Khairunbi, Irfan, Rahamath and Mamthaz Begum. In the cross examination, he admits that he has not issued any notes to the mahazar witnesses, the contents of Ex.P2
- 50 -
NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 mahazar was not in his handwriting, he has not mentioned, the names of mahazar witnesses in Ex.P2. He further admits that he had no impediment to mention the names of pancha witnesses in mahazar and in photographs, material objects Nos.1 to 5 were not appearing and he further admitted that, PW1 has not given statement before him stating that accused persons were assaulted his son Allabakshi in front of the house of Nazeer Sab and he has seen the incident.
x) PW.25 - Ashok Kumar, Police Inspector, who conducted investigation, filed charge sheet against accused persons.
y) PW.26 - A.Suresh, is the police constable, who carried FIR to the Court.
19. Based on the aforesaid evidence, trial Court has proceeded to acquit the accused.
20. Having perused the entire oral and documentary evidence on record, it is clear that, deceased Allabakshi
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NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 died on account of head injuries sustained in the alleged assault. It is the case of prosecution that on 06.06.2013 at 4.10 p.m., near the house of PW.1, accused Nos.1 to 12, being the members of unlawful assembly holding deadly weapons, insulted PWs.1 to 5 and made criminal intimidation and assaulted PWs.1 to 5 indiscriminately and accused no.1 assaulted Allabakshi with iron rod and accused no.2 also assaulted deceased Allabakshi with club on his head, face and above eye brow. It is also the case of the prosecution that, according to PWs.1 to 5, they also saw that the deceased Allabakshi while coming near the house of one Nazeer Sab, accused No.1 assaulted him with rod on his head and right eye, accused No.2 - K. Basheer Sab assaulted him with club on his head, accused No.8 - Honnurali, accused No.9-Rafiq, accused No.10 - K.Basha and accused No.11-Rajabakshi thrown him to the ground by holding his hands. Hence, Allabakshi succumbed to the injuries on 12.06.2013 at 1.30 a.m. i.e., after six days of
- 52 -
NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 the incident. However, the accused have denied the allegations made against them and has taken contention that there was a civil dispute between the parties and the deceased Allabakshi kidnapped the daughter of accused No.1 and committed rape. Therefore, there was free fight between them and PWs.1 to 5 and deceased Allabakshi were the aggressors. Hence, they are not committed any offence as alleged by the prosecution. In order to bring home the guilt of the accused, it is necessary to ascertain whether the prosecution proved the ingredients of Section 302 of IPC.
21. The basic ingredients to attract the offence under Section 300 of IPC are as follows:
"Section 300 in The Indian Penal Code
300. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--
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NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 (Secondly) --If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--
(Thirdly) --If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--
(Fourthly) --If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."
22. On perusal of the oral and documentary evidence, in the light of the provision of law, it appears that initially, the complaint was filed against the accused Nos.1 to 7 and thereafter, names of accused Nos.8 to 12 were included, after the death of deceased Allabakshi, the investigating officer has not assigned any reasons and the prosecution
- 54 -
NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 witnesses also not clearly stated as to why the complainant and other witnesses included accused Nos.8 to 12 in this case. The counsel for accused contended that, on perusal of Exs.P3 to P6, it shows that, there is a car parked in front of the house and there is drainage and therefore, fall of victims on the drainage slabs in a free fight cannot be ruled out.
23. Admittedly, PW1-Khajasab, who is father of deceased, PW2-Hussain Peera and PW3-Irfan are younger brothers of deceased Allabakshi, PW.4-Khairunbi is mother of deceased PW.5-K.Rehaman, PW.7-Azeem Sab PW.8- Rajabakshi, PW.9-Hussain and PW15-Mansoor Basha are also relatives of deceased Allabakshi and PW.10-Raziya Begum is wife of deceased Allabakshi.
24. On perusal of the evidence of PW.1, he has stated that accused persons have assaulted deceased Allabakshi infront of his house only. But, as per the evidence of PW.7-Azeem Sab, all the accused have assaulted the
- 55 -
NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 deceased Allabakshi in front of the house of complainant, but, as per the evidence of PWs.2 to PW.5 and PW.10, deceased Allabakshi was assaulted in front of the house of one Nazeer Sab. On perusal of the evidence of PW.25- Ashok Kumar (Investigating Officer), he has stated that PWs.1 to 5, 7 and 10 have stated before him that accused saw the deceased coming near the house of Nazeer sab. Thus, went towards the house of Nazeer sab and they too followed them and saw the occurrence. On perusal of the evidence of PW.24-Niranjanagouda(Head constable) and PW.23-Assistant Sub-Inspector, who registered the complaint, has clearly stated that, PW1, complainant has not stated in that regard. Therefore, there are material contradictions as to the scene of offence.
25. Admittedly, one cannot see the house of Nazeer Sab from the house of PW.1 as the house of Nazeer Sab and house of PW.1 are situated in different street and different area. Admittedly, Police have not conducted spot
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NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 panchanama in front of the house of PW.1 and infront of the house of Nazeer sab.
26. So far as mahazar witness is concerned, the witness to the spot panchanama has not supported the case of prosecution under the recovery of material object Nos.1 to 5 from the spot. On perusal of Ex.P2, spot panchanama, the view in front of the house of Nazeer Sab is not visible from the house of complainant.
27. Admittedly, PW.10 (wife of deceased) has not stated the names of accused persons and thus shown her inability to identify the accused persons except accused No.1.
28. Admittedly, there is a case and counter case between the complainant party and accused persons. The case filed by accused No.1 was numbered as CC No.640/2013 and same was registered against the complainant and his family members and the learned
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NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 Magistrate did not committed said case to the Court of Sessions for trial along with the present case. Admittedly, the accused persons in C.C.No.640/2013 were acquitted for the offences alleged against them. So also, the present accused persons are also acquitted for the offences alleged against them.
29. Though, the present case and case in CC No.640/2013 are arising out of the same incident and both are case and counter case, however, both cases have not been tried by the same Court and it was tried by two different courts.
30. In the instant case, PWs1 to 5, 7 and 10 are related to each other and interested witnesses and their oral testimony is not corroborated with each other and there is contradictions and omissions in their testimony. Admittedly, there is counter case filed by accused No.1 against PWs.1 to 5 and deceased Allabakshi, wherein, accused No.1, lodged a complaint in crime No.62/2013
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NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 against PWs.1 to 5 and Allabakshi, which is corroborated by documentary evidence as per Exs.D1 to D7 and on perusal of these documents, it establishes that the family of the complainant damaged the house of accused No.1 and also made assault on the family of accused No.1 and during said assault, accused Nos.2 and 8 were sustained injuries. But, none of the prosecution witnesses have explained about the injuries sustained by accused Nos.2 and 8. Therefore, non-explanation of injures sustained by accused Nos.2 and 8 would fatal to the case of the prosecution.
31. In the instant case, some of the prosecution witnesses have stated that the incident took place in front of the house of PW.1 and some witnesses have deposed that the incident took place in front of the house of Nazeer sab, hence, scene of offence has been changed. Therefore, on these grounds also, the accused persons are entitled for acquittal.
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NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017
32. In the instant case, the motive for lodging the complaint against the accused persons was kidnap of PW.16, who is none other than the daughter of accused No.1 and hence, a case was registered in Crime No.62/2013 against deceased Allabakshi for the offences punishable under Sections 366A, 504 and 506 of IPC and soon before his death, Allabakshi got released from the prison and he came to his village. Therefore, the family of Allabakshi i.e. PWs.1 to 5 had grudge against the family of accused persons and therefore, they damaged the house of accused No.1 as per Exs.D1 to D7 and also made assault on the family of accused No.1 and during said assault, accused Nos.2 and 8 have sustained injuries.
33. On perusal of the wound certificates produced by the prosecution, it appears that the names of PWs.2 to 5 and 8 were inserted and the doctor, who examined PWs.1 to 5 clearly stated that she do not know how the said names were inserted in the case sheet and due to
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NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 administrative reasons, she could not make out any reasons. It appears that, wound certificates appear to be created one.
34. So far as perusal of FIR is concerned, wherein, names of accused No.1 to 7 alone appearing and names of accused Nos.8 to 12 were subsequently added. But, no reasons are forthcoming in the prosecution evidence in this regard.
35. On perusal of the medical evidence and the evidence of PWs.1 to 5, it appears that the death of Allabakshi was due to head injury as could be seen from postmortem report at Ex.P16 and PWs.1 to 5 have sustained simple injuries as per Exs.P20 to P24. Admittedly, on the date of incident i.e. on 06.06.2013, complaint was lodged and after six days of the incident, deceased Allabakshi died. But, the prosecution witnesses have not explained that, from 06.06.2013 to 12.06.2013, whether injured Allabakshi was admitted to hospital, who
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NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 was treated him, whether he was conscious or unconscious and whether the Investigating Officer has recorded his statement in the presence of the medical officer, no explanation is forthcoming on record in the oral testimony of prosecution witnesses.
36. Hence, the counsel for accused contended that the evidence of PW.1 to 5 appears to be interested witnesses, in order to get conviction of accused persons.
37. It is well settled law that, the evidence of interested witnesses required careful scrutiny to discover falsehood, embellishment or exaggeration, which must be eschewed.
38. The Hon'ble Apex Court in case of HARIRAM VS. STATE OF U.P. reported in (2004) 8 SCC 146 observed that, "the evidence of related witnesses and their credibility has to be considered. In case of interested witness, foundation has to be laid, if plea of false
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NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 implication is made, then in such case, the Court has to adopt a careful approach and analyze evidence to find out whether it is cogent and credible".
39. Whereas in the instant case, the incident occurred in front of the house of Nazeer Sab and PWs.1 to 5 were in their house, at the time of incident, further one cannot see the house of Nazeer Sab from the house of accused no.1. None of the independent witness residing in the locality of the house of Nazeer Sab made as witness. Further, all independent witnesses have not supported the case of prosecution and on perusal of the oral testimony of PWs.1 to 5, they have deposed contrary evidence and their testimonies are not corroborated with each other.
40. It is settled position of law that, circumstances how so ever cannot take place of proof and that, the guilt of the accused have to be proved by the prosecution beyond reasonable doubt. The golden principle has been laid down by the Hon'ble Supreme Court in the case of
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NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 SHARAD BIRDHI CHAND SARDA vs. STATE OF MAHARASHTRA reported in (1984) 4 SCC 116, wherein at paragraph No.153, it is observed as under:
"153. A close analysis of this decision, would how that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be"
established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao bobade V. State of Maharashtra (1973) 2 SCC 793: 1973 SCC (Cri) 1033: 1973 Crl LJ 1783) where the observations were made. Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.
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NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 (2) The facts so established should be consistent only with the hupothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) The circumstances should be of a conclusive nature and tendency, (4) They should exclude every possible hypothesis except the one to be proved, and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused"
41. The Hon'ble Supreme Court while considering the provisions of Sections 302 and 394 R/w 34 of IPC and Section 27 of the Evidence Act in the case of DIGAMBER VAISHNAV AND ANOTHER Vs. STATE OF CHHATTISGARH reported in (2019) 4 SCC 522 at pagraphs-18, 19 and 40 has held as under:
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NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 "18. In Sujit Biswas v. State of Assam, (2013) 12 SCC 406, this Court, while examining the distinction between 'proof beyond reasonable doubt' and 'suspicion' has held as under:
"13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "may be" proved, and something that "will be proved". In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between "may be" and "must be" is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between "may be" true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between "may be" true and "must be" true, the court must maintain the vital distance between mere conjectures
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NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense".
19. It is also well-settled principle that in criminal cases, if two views are possible on evidence adduced in the case, one binding to the guilt of the accused and the other is to his innocence, the view which is favourable to the accused, should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence [See Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC 808].
40. The prosecution has relied upon the evidence of PW-8 to show that the accused
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NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 and victims were last seen together. It is settled that the circumstance of last seen together cannot by itself form the basis of holding accused guilty of offence. If there is any credible evidence that just before or immediately prior to the death of the victims, they were last seen along with the accused at or near about the place of occurrence, the needle of suspicion would certainly point to the accused being the culprits and this would be one of the strong factors or circumstances inculpating them with the alleged crime purported on the victims. However, if the last seen evidence does not inspire the confidence or is not trust worthy, there can be no conviction. To constitute the last seen together factor as an incriminating circumstance, there must be close proximity between the time of seeing and recovery of dead body.
42. The counsel for accused submitted that, the trial Court has appreciated oral and documentary evidence on record and has passed well reasoned order and accordingly, acquitted the accused, hence no interference is required to set aside the judgment of acquittal.
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NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017
43. In view of the above proposition of law and decisions cited supra, in the present case, we have independently analyzed and scrutinized the evidence of the material witnesses and found that there is practically no evidence to show that accused persons have committed murder of deceased Allabakshi in the manner stated by the prosecution.
44. The learned trial Judge has appreciated the evidence of PWs.1 to 25 in its right perspective and concluded that the evidence of these witnesses has not been established that the deceased Allabakshi was murdered by accused persons.
45. It is also to be noticed that the Trial Court on the basis of evidence, has chosen to acquit accused persons on the ground that, the prosecution has failed to prove its case beyond reasonable doubt.
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NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017
46. The Hon'ble Supreme Court of India in case of N. VIJAYAKUMAR Vs. STATE OF TAMIL NADU reported in (2021) 3 SCC 687, has held as under;
"Though, High Court was of the view that prosecution witness can be believed, unless it is held that the view taken by trial Court disbelieving the witness is not a possible view, High Court ought not have interfered with the acquittal recorded by trial Court, thus reversal of acquittal by High Court is not justified and thus, conviction set aside."
47. In case of NAGABHUSHAN Vs. STATE OF KARNATAKA reported in (2021) 5 SCC 222, the Hon'ble Apex Court observed that;
''7.2.2. When the findings of the fact recorded by a Court can be held to be perverse has been dealt with and considered in para 20 of the aforesaid decision, which reads as under; (Babu case, SCC P. 199) " The finding of fact recorded by a Court can be held to be perverse, if the findings have been arrived at by ignoring or excluding relevant
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NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 material or by taking into consideration irrelevant/ inadmissible material. The finding may also be set to be perverse if it is against the weight of the evidence, or if the findings so outrageously defies logic as to suffer from the vice of irrationality. 7.2.3. It is further observed, after following the decision of this Court in Kuldeep Singh Vs. Commissioner of Police that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But, if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with."
(emphasis supplied)
48. On perusal of the ratio laid down supra, and the facts and circumstances of the case, it appears that the only evidence of PW.1 to PW.5 would be available to connect accused persons to the crime. As per the
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NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 prosecution evidence, there are two spots, one spot is in front of the house of PW.1 and one spot in front of the house of Nazeer Sab. As per the evidence of PW.10, who is none other than the wife of deceased, at the time of incident, PWs.1 to 5 and PW.10 were in the house, therefore they cannot see the incident, that took place in front of the house of Nazeer Sab and the Doctor opined that, the injuries mentioned in wound certificates could be caused by accidental fall. In that view of the matter, we find that, solely on the basis of uncorroborated testimony of PWs.1 to 5 and 10, the conviction cannot be recorded. Further, deceased Allabakshi was in the hospital for 6 days, during this period, the Doctor who examined him, has not been examined, the I.O. did not record his statement, and the condition of injured Allabakshi not elicited. In that view of the matter, the prosecution utterly failed to prove the guilt of the accused. In fact, the evidence of PWs.1 to 5 and 10 do not inspire the
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NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 confidence, as their testimony is not corroborated with each other and there was animosity between accused person and PWs.1 to 5 and 10 in respect of land dispute and deceased Allabakshi was kidnapped the daughter of accused No.1 and a kidnap case was registered against him and a counter case is also registered against PWs.1 to 5 for damage of the house of accused No.1, as can be seen in Ex.D.1 to D.7.
49. The coordinate Bench of this Court in case of ESHWARA AND OTHERS Vs. THE STATE OF KARNATAKA AND OTHERS, in Criminal Appeal 100101 of 2016 decided on 17 March 2022, held as under;
"In deciding each case, the Trial Judge can only rely on the evidence recorded in that particular case and the evidence recorded in the cross case (or counter case) cannot be looked into. The Judge shall not be influenced by the evidence or arguments in the cross case. However, if the evidence recorded in one case is brought on record in another case in accordance with the procedure known to
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NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 law, then, such evidence which is legally brought on record can be looked into. Except in such situation, the evidence recorded in one case cannot be looked into in another case.
vii) Whenever two appeals are filed arising out of a complaint and counter complaint or appear to be a complaint and counter-
complaint, the Appellate Court is to follow the following procedure:
50. The learned counsel for accused submitted that, there are two cases viz., a case and counter case. In this case, the Trial Court acquitted all the accused persons. In counter case, the Trial Court acquitted the complainant party. Therefore, the counsel submits that, once, the complainant party acquitted in counter case, naturally, in the present case, the accused persons have to be acquitted.
51. Normally the Procedure to be followed in trial of case and counter case;
The investigation should be conducted by same investigating officer.
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NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 The prosecution should be conducted by two public prosecutors.
The trial should be conducted by the same court.
52. After recording the evidence and after hearing the arguments, the judgment should be reserved in one case and thereafter the evidence should be recorded and the arguments should be heard in the other case.
The arguments in both the matters shall be heard by the same learned judge.
The judgment should be pronounce by the same judge simultaneously i.e., one after the other.
53. The Coordinate Bench of this Court has referred the following questions for consideration to larger Bench, which reads as under;
Whether the proceedings are vitiated if the case and counter case are not tried as held by the Supreme Court in Nathi Lal Vs. State of UP - (1990 SCC cri 638) and Sudhir & Ors. Vs. State of MP - 2001 (SCC -Cri) 387?
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NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 Answer:
The proceedings ipso facto do not get vitiated. But where the irregular procedure adopted by the trial court has caused prejudice to the accused and has occasioned failure of Justice, the proceedings and the trial vitiates otherwise the proceedings are protected u/s 465 of Cr.PC.
54. A similar view has been taken by this Court in ILR 2012 KAR 509 [ Full Bench] in the case of State of Karnataka Vs. Hosakeri Ningappa & Anr.
55. Whereas in the instant case, the present case is decided by III Additional District and Sessions Court, Bellary (Sitting at Hosapete) and the counter case was tried by learned JMFC Hosapete. It appears that, same Judge has not tried both the matters, which affected the right of present accused persons. On this ground also accused persons are entitled for acquittal.
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NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017
56. Having given our careful consideration to the above stated submissions made by the learned counsel for the parties and in the backdrop of the evidence discussed hereinabove and tested in the light of the principles of law highlighted above, it must be held that the evaluation of the findings recorded by the Trial Court do not suffers from any manifest error and improper appreciation of the evidence on record. Therefore, the judgment of the Trial Court, acquitting the accused persons is sustainable in law.
57. For the reasons stated above, we are of the considered opinion that the evidence led by the prosecution in regard to the involvement of accused persons in the death of Allabakshi and the assault in the manner stated by PWs.1 to 5 is not proved beyond reasonable doubt by the prosecution.
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58. Considering all these above aspects, we are of the considered opinion that the learned Sessions Judge has rightly held that the prosecution has failed to prove the guilt of accused beyond all reasonable doubts and rightly extended the benefit of acquittal to accused persons. We do not find any grounds to interfere with the well reasoned judgment passed by the trial Court. Accordingly, we answer point No.1 in the negative.
59. Point No.2: In the result, we pass the following order :
ORDER i. The appeals filed by the State and the complainant are dismissed.
ii. Judgment and order of acquittal passed by the III Addl. District and Sessions Judge, Bellary (Sitting at Hosapete), in S.C. No.124/2013, S.C. No.169/2013, S.C. No.5017/2014 and S.C. No.5033/2014 dated:
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NC: 2023:KHC-D:12316-DB CRL.A No. 100210 of 2017 C/W CRL.A No. 100032 of 2017, CRL.A No. 100033 of 2017, CRL.A No. 100034 of 2017, CRL.A No. 100035 of 2017, CRL.A No. 100201 of 2017, CRL.A No. 100202 of 2017, CRL.A No. 100209 of 2017 06-01-2017, acquitting accused No.1 to 12 for the offences punishable under Section 143, 147, 148, 323, 324, 504 506 and 302 read with 149 of IPC, are confirmed.
Sd/-
JUDGE Sd/-
JUDGE PJ List No.: 19 Sl No.: 1