Karnataka High Court
State Of Karnataka vs Sri. Manju Poojary on 8 November, 2023
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NC: 2023:KHC:40006
CRL.A No. 1241 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO.1241 OF 2016
BETWEEN:
STATE OF KARNATAKA,
BY ASSISTANT SUPERINTENDENT OF POLICE,
KUNDAPURA,
REP BY SPP, HIGH COURT BUILDING,
BANGALORE - 560 001.
...APPELLANT
(BY SRI M.R. PATIL, HCGP)
AND:
1. SRI. MANJU POOJARY,
S/O LATE DUGGA POOJARY,
AGED ABOUT 67 YEARS.
Digitally signed 2. RATHNAKARA POOJARY,
by SANDHYA S
Location: High S/O MANJU POOJARY,
Court of
Karnataka AGED ABOUT 27 YEARS.
3. SUDHAKAR POOJARY,
S/O MANJU POOJARY,
AGED ABOUT 25 YEARS.
4. SHEKARA POOJARY,
S/O MANJU POOJARY,
AGED ABOUT 29 YEARS,
R/O ALL ARE RESIDENTS OF
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NC: 2023:KHC:40006
CRL.A No. 1241 of 2016
KAMBALAGADDE,
GOLIHOLE VILLAGE,
KUNDAPURA TALUK,
UDUPI DISTRICT - 576 201.
...RESPONDENTS
(BY SRI YADUNANDAN V., ADVOCATE)
THIS CRL.A. IS FILED U/S.378(1) AND (3) OF CR.P.C
PRAYING TO FILE AN APPEAL AGAINST THE JUDGEMENT AND
ORDER DATED 03.03.2016 PASSED BY THE PRL.
SESSIONS/SPL. JUDGE, UDUPI IN SPL.C.NO.15/2011 THERE BY
ACQUITTING THE RESPONDENTS/ACCUSED NO.1 TO 4 OF THE
OFFENCE P/U/S 323, 324, 504 AND 506 R/W 34 OF IPC AND
SEC. 3(1)(x) OF SC/ST (POA) ACT.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The State has preferred this appeal against the judgment of acquittal dated 03rd March, 2016 passed in SC No.15 of 2011 by Principal Sessions/Special Judge, Udupi (for brevity, hereinafter referred to as the "trial Court").
2. For the sake of convenience, the parties in this appeal are referred to as per their status and rank before the trial Court.
3. The case of the prosecution is that on 18th August, 2011 at about 1.00 pm at Kambalagadde of Golihole village, Kundapura Taluk, in furtherance of common intention, accused -3- NC: 2023:KHC:40006 CRL.A No. 1241 of 2016 No.4-Shekara Poojary, voluntarily caused hurt to PW2-Smt. Sadhu by assaulting her with hands on her nose and right cheek and accused No.2-Rathnakara Poojary, held her hair, when she questioned the digging of a pit by the accused to install an electric pole in the vacant land, situated near the land of PW1-Annappa Marati. All the accused voluntarily caused hurt to PW1-Annappa Marati, by assaulting him on his cheek and face. When he came to the spot, accused No.2 voluntarily caused hurt to the complainant-PW1 by assaulting on his waist with an iron rod. It is the further case of the prosecution that all the accused abused PW1 and 2 in filthy language as bewarsi, Hadabe, Soole Makkalu with an intention to insult them and thereby gave provocation to them to break the public peace and then gave life-threat to them stating that they will kill them by burning them alive. Further, it is alleged that the accused abused the complainant with reference to his caste in public place knowing fully well that they belong to Schedule Tribe. Thereby, accused committed offence punishable under Sections 323, 324, 504, 506 read with Section 34 of Indian Penal Code and Section 3(1)(x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. After filing charge -4- NC: 2023:KHC:40006 CRL.A No. 1241 of 2016 sheet, the Special Judge has taken cognizance against the accused for alleged commission of offences and in pursuance of the summons, accused appeared before the Court. Charges were framed, read over and explained to all the accused. Having understood the charge, the accused pleaded not guilty and claimed to be tried. To prove the case of the prosecution, in all, nine witnesses were examined as PW1 to PW9 and fourteen documents were produced as Exhibits P1 to P14 and one material object marked as MO1. On closure of prosecution side evidence, statement of accused under Section 313 of Code of Criminal Procedure was recorded. Accused have denied all the incriminating material found in the evidence of prosecution witnesses and they have not chosen to adduce any evidence on their behalf. On hearing both sides, the trial Court acquitted the accused for the alleged commission of offences. Being aggrieved by the impugned judgment of acquittal, the State has preferred the present appeal.
4. Sri M.R. Patil, learned High Court Government Pleader submits that the judgment and order of acquittal passed by the trial Court is contrary to the evidence and material on record and the same is not in accordance with law -5- NC: 2023:KHC:40006 CRL.A No. 1241 of 2016 and facts. The trial Court has not properly appreciated the evidence on record in accordance with law. On these grounds, sought to allow the appeal.
5. Counsel for respondents absent and hence, arguments on behalf of respondents is taken as nil.
6. Having heard the learned High Court Government Pleader and on perusal of records, the following points would arise for my consideration in this appeal:
1) Whether the State has made out a case for interference with the impugned judgment and order of acquittal?
2) What Order?
7. My answer for the above points are as under:
Point No.1: in the negative Point No.2: as per final order
8. Before adverting to the actual facts of the case and the finding recorded by the trial Court, it is useful to refer the dictum of Hon'ble Supreme Court regarding scope and power of Appellate Court in appeal against the order of acquittal. -6-
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9. In the case of MOTIRAM PADU JOSHI & OTHERS v. STATE OF MAHARASHTRA reported in 2018 SCC ONLINE SC 676, at paragraph 23 of the judgment, it is held thus:
"23. While considering the scope of power of the appellate court in an appeal against the order of acquittal, after referring to various judgments, in Chandrappa v. State of Karnataka (2007) 4 SCC 415, this Court summarised the principle as under:-
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the -7- NC: 2023:KHC:40006 CRL.A No. 1241 of 2016 reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law.
Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
10. In the case of MUNISHAMAPPA & OTHERS v. STATE OF KARNATAKA & CONNECTED APPEALS reported in 2019 SCC ONLINE 69, at paragraph 16 of the judgment it is held as under:
"16. The High Court in the present case was dealing with an appeal against acquittal. In such a case, it is well settled that the High Court will not interfere with an order of acquittal merely because it opines that a different view is possible or even preferable. The High Court, in other words, should not interfere with an order of acquittal merely because two views are possible. The -8- NC: 2023:KHC:40006 CRL.A No. 1241 of 2016 interference of the High Court in such cases is governed by well-established principles. According to these principles, it is only where the appreciation of evidence by the trial court is capricious or its conclusions are without evidence that the High Court may reverse an order of acquittal. The High Court may be justified in interfering where it finds that the order of acquittal is not in accordance with law and that the approach of the trial court has led to a miscarriage of justice. ..."
11. In the case of HARI RAM & OTHERS v. STATE OF RAJASTHAN reported in 2000 SCC ONLINE 933, at paragraph 4 of the judgment, it is observed thus:
"4. Mr. Sushil Kumar Jain, the learned Additional Advocate General for the State of Rajasthan on the other hand contended that the power of the High Court while hearing an appeal against an order of acquittal is in no way different from the power while hearing an appeal against conviction and the Court, therefore was fully justified in re-appreciating the entire evidence, upon which the order of acquittal was based. The High Court having examined the reasons of the learned Sessions Judge for discarding the testimony of PWs 6 & 7 and having arrived at the conclusion, that those reasons are in the realm of conjectures and there has been gross miscarriage of justice and the mis- appreciation of the evidence on record is the basis for acquittal, was fully entitled to set aside an order of acquittal and no error can be said to have been -9- NC: 2023:KHC:40006 CRL.A No. 1241 of 2016 committed. It is too well settled that the power of the High Court, while hearing an appeal against an acquittal is as wide and comprehensive as in an appeal against a conviction and it had full power to re- appreciate the entire evidence, but if two views on the evidence are reasonably possible, one supporting the acquittal and the other indicating conviction, then the High Court would not be justified in interfering with the acquittal, merely because it feels that it would sitting as a trial court, have taken the other view. While re- appreciating the evidence, the rule of prudence requires that the High Court should give proper weight and consideration to the views of the learned trial Judge. But if the judgment of the Sessions Judge was absolutely perverse, legally erroneous and based on wrong appreciation of the evidence, then it would be just and proper for the High Court to reverse the judgment of acquittal, recorded by the Sessions Judge, as otherwise, there would be gross miscarriage of justice...."
12. In the case of STATE OF RAJASTHAN v. KISTOORA RAM reported in 2022 SCC ONLINE 684, at paragraph 8 of the judgment it is held as under:
"8. The scope of interference in an appeal against acquittal is very limited. Unless it is found that the view taken by the Court is impossible or perverse, it is not permissible to interfere with the finding of acquittal. Equally if two views are possible, it is not permissible to set aside an order of acquittal, merely
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NC: 2023:KHC:40006 CRL.A No. 1241 of 2016 because the Appellate Court finds the way of conviction to be more probable. The interference would be warranted only if the view taken is not possible at all."
13. In the case of MAHAVIR SINGH v. STATE OF MADHYA PRADESH reported in (2016)10 SCC 220, at paragraph 12 of the judgment, it is observed thus:
"12. In the criminal jurisprudence, an accused is presumed to be innocent till he is convicted by a competent court after a full-fledged trial, and once the trial court by cogent reasoning acquits the accused, then the reaffirmation of his innocence places more burden on the appellate court while dealing with the appeal. No doubt, it is settled law that there are no fetters on the power of the appellate court to review, reappreciate and reconsider the evidence both on facts and law upon which the order of acquittal is passed. But the court has to be very cautious in interfering with an appeal unless there are compelling and substantial grounds to interfere with the order of acquittal. The appellate court while passing an order has to give clear reasoning for such a conclusion."
Regarding Point No.1:
14. Now let me advert to the factual matrix of the case. It is the case of the prosecution that on 18th August, 2011 at about 1.00 pm at Kambalagadde of Golihole village, Kundapura
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NC: 2023:KHC:40006 CRL.A No. 1241 of 2016 Taluk, in furtherance of common intention, accused No.4- Shekara Poojary, voluntarily caused hurt to PW2-Smt. Sadhu by assaulting with hands on her nose and right cheek and accused No.2-Rathnakara Poojary, held her hair when she questioned the digging of a pit by the accused to install an electric pole in the vacant land, situated near the land of PW1-Annappa Marati. All the accused voluntarily caused hurt to PW1-Annappa Marati, by assaulting him on his cheek and face. When he came to the spot, accused No.2 voluntarily caused simple hurt to the complainant-PW1 by assaulting on his waist with an iron rod. It is the further case of the prosecution that all the accused abused PW1 and 2 in filthy language as bewarsi, Hadabe, Soole Makkalu with an intention to insult them and thereby gave provocation to them to break the public peace and then gave life-threat to them stating that they will kill them by burning them alive. Further it is alleged that the accused abused the complainant with reference to his caste in public place knowing fully well that they belong to Schedule Tribe. Thereby, accused committed offence punishable under Sections 323, 324, 504, 506 read with Section 34 of Indian Penal Code and Section 3(1)(x) of the Scheduled Caste and Scheduled Tribe (Prevention
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NC: 2023:KHC:40006 CRL.A No. 1241 of 2016 of Atrocities) Act, 1989. To substantiate the case of prosecution, in all, nine witnesses were examined as PW1 to PW9 and fourteen documents were marked as Exhibits P1 to P14 and one material object marked as MO1. Material witnesses are PW1 to PW3. PW1 is the complainant. The statement of PW1, on the basis of which the complaint is registered, is at Exhibit P1. Exhibit P1 has been recorded by PW8 in Chinmayee Hospital. In Exhibit P1 it is stated that accused 1 to 4 came and embed an electric pole by the side of the land of PWs1 and 2 to which PW2 objected and therefore, accused No.2 held the tuft of PW2 and accused No.4 assaulted with his hand on her nose and cheek and all the accused pushed her near the river. It is also stated that, at that time, PW1 ran to the spot and questioned the accused as to why they are assaulting her, at that time, all the accused assaulted him with hands on his face and accused No.2 who was working with iron rod, has assaulted him with the said iron rod on his waist and all the accused abused him "¤ÃªÀÅ »Ã£À PÀÄqÀÄ©AiÀĪÀgÀÄ, ¤ªÀÄäµÀÄÖ UÀ°ÃdÄ eÁw E£ÉÆßA¢®è, ¤ªÀÄä eÁwAiÀĪÀgÀ £ÉgÀ¼ÀÄ £ÀªÀÄä §¢UÉ ©Ã¼À¨ÁgÀzÀÄ, ¤ÃªÀÅ PÀÄ®UÉlÖ eÁwAiÀĪÀgÀÄ, ¤ªÀÄä eÁw £Á¬ÄVAvÀ PÀqÉ." and gave life threat and also abused him in filthy language.
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15. PW2 has deposed that the accused assaulted and pushed her and she sustained injury on her nose.
16. PW3, who is said to be the eye-witness to the incident, has deposed that on 18th August, 2011 at about 1.00 pm, the accused came to their land for erecting electric pole and at that time she was working in her land and PW2 told accused not to erect electric pole, as the land belong to them. She has further deposed that accused assaulted PW2 on her face and held her tuft and pushed her. She has further deposed that, at that time, when PW1-Annappa came there, accused have assaulted him also and one of the accused who was holding iron rod, had hit PW1 with the iron rod and in the process of assault, she did not observe as to on which part of the body the accused assaulted PW1 and she has further deposed that PW1 sustained injuries on his body.
17. A careful scrutiny of eye-witnesses, makes it clear that PW1 has deposed that on 18th August, 2011 at about 1.00 pm accused No.1 to 4 came to erect electric pole in their land and his mother objected for the same. The accused tried to assault his mother and he was not there on the spot and was in
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NC: 2023:KHC:40006 CRL.A No. 1241 of 2016 his house and he went to the spot and asked the accused as to why they are abusing his mother. He has further deposed that accused No.2-Ratnakara Poojary assaulted him with the iron rod on his waist. Accused No.1, 3 and 4 assaulted him with hands on his face and on his back.
18. PW2 has deposed that accused No.1 to 4 came to her land and tried to erect electric pole in their land and when she objected to same, accused assaulted and pushed her and she fell. She has further deposed that accused No.4 held her tuft and when her son Annappa Marati came and asked the accused as to why they assaulted her, the accused assaulted him with hands and iron rod and she sustained injury on her nose and PW1 sustained injuries all over the body.
19. The alleged incident took place on 18th August, 2011 at about 1.00 pm. Complaint came to be filed on 18th August, 2011 at 9.00 pm. On the basis of the complaint Exhibit P1, the jurisdictional police have registered case in Crime No.183 of 2011 for commission of offences punishable under Sections 323, 324, 504, 506 read with Section 34 of Indian Penal Code and Section 3(1)(x) of the Scheduled Caste and Scheduled
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NC: 2023:KHC:40006 CRL.A No. 1241 of 2016 Tribe (Prevention of Atrocities) Act, 1989 and submitted the First Information Report to the Court on 19th August, 2011 at 10.30 am as per Exhibit P13. The delay in filing the complaint and also the delay in submitting the First Information Report after registration of the case, has not been explained by the prosecution.
20. Exhibit P6-wound certificate issued by Chinmayee Hospital reveals that Annappa Marati was admitted to hospital with history of assault on 18th August, 2011 at 1.00 pm and the time of examination is shown as 15.40 hours. The injuries shown are as under:
1. Tenderness LS Junction
2. swelling (r) eye ć redness
21. The Doctor has opined that the injuries 1 and 2 are simple in nature. Exhibit P7 is the medico legal certificate issued by Chinmayee Hospital with respect to PW2-Sadhu. It reveals that she was admitted to the hospital with the history of assault. Time of assault is shown as 13.00 hours and the time of examination is shown as 15.34 hours. PW2 has sustained the following injuries:
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1. swelling Rt side of face ć black eye;
2. contusion Rt side of the face 6 x 2 cms;
3. contusion Rt side of neck 6 x 2 cms;
4. tenderness, swelling LS-S1;
5. Tenderness swelling at chest wall Doctor has opined that the injuries are simple in nature.
22. In addition to this, Dr. Dinesh Kumar Shetty, the Medical Officer, who has treated the injured has been examined as PW9, he has deposed as to the examination of the injury and also the issuance of wound certificates Exhibits P6 and 7. During the course of cross-examination he has clearly stated that he has not noted in the Exhibits P6 and 7-wound certificate as to who has brought the injured to the hospital. He has not mentioned the age of injuries. But it is shown as fresh. On examination of these materials, it is crystal clear that soon after the incident, PWs1 and 2 have taken treatment in the hospital with the history of assault. When the medical officer has examined the injured with the history of assault, he ought to have registered a Medico-legal case and should have intimated the same to the concerned police. But he has not done so. The Investigating Officer has not explained anything
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NC: 2023:KHC:40006 CRL.A No. 1241 of 2016 in this regard. Only on the basis of complaint filed by PW1, the Police have registered the case against the accused for the alleged commission of offence. Apart from this, PWs1 and 2 have not disclosed the name of the accused in the wound certificate. The weapon used for the commission of offence also not shown in the wound certificate. The medical officer or the investigating officer, have not whispered anything as to non-mentioning of the name of the accused who have assaulted PW1 and PW2, so also, the weapon used for the commission of offence. During cross-examination of PW1, he has clearly admitted that he has visited Police Station two to three times in connection with this case. He has studied up to S.S.L.C. The contents of Exhibit P1 are in the handwriting of police. He has given statement in the Hospital on 19th August, 2011. Police have read over statement recorded by them. He does not know the contents of Exhibit P1. He does not know the name of the Police who has prepared the sketch. PW2 has deposed in her evidence that she does not remember whether she had gone to the police station and she does not know about the dispute relating to erecting electric pole. Further, she has clearly admitted that there is a canal, pit in the land where the
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NC: 2023:KHC:40006 CRL.A No. 1241 of 2016 electric pole has been erected. She has clearly admitted that the place of incident is slippery due to rain and she had fallen several times at that place. She had not sustained injuries but suffered pain. During the course of cross-examination of PW3, she has clearly stated that on the date of accident, the climate was cloudy as it was rainy season and it was raining. Further, she has clearly admitted that she could not hear properly as all the accused were abusing together. She cannot say which of the accused was holding the iron rod. She does not know as to what had taken place subsequently between the accused and PWs1 and 2 in respect of erecting electric pole. Exhibit P5 is the complaint filed by PW2-Sadhu to the Section Officer, MESCOM, Baindoor which reveals that PW2 has lodged a complaint on 13th April, 2011 as to the erection of electric pole in their land. On careful examination of the above material witnesses, it is clear that there is a dispute between the accused and PWs1 and 2 as to the erection of electric pole in the land of the complainant and prior to filing this compliant, PW1 has visited police station two to three times and that there is a delay in filing the complaint and also delay in submitting the first information report to the Court. This conduct of
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NC: 2023:KHC:40006 CRL.A No. 1241 of 2016 prosecution witnesses reveals that only after discussion/deliberation, they have lodged the compliant with the police. Therefore, the evidence of prosecution witnesses will create reasonable doubt as to the act of the accused.
23. With regard to the offence punishable of 3(1)(x) of SC/ST (POA) Act is concerned, it is the case of prosecution that the accused have abused the complainant that "¤ÃªÀÅ »Ã£À PÀÄqÀÄ©AiÀĪÀgÀÄ, ¤ªÀÄäµÀÄÖ UÀ°ÃdÄ eÁw E£ÉÆßA¢®è, ¤ªÀÄä eÁwAiÀĪÀgÀ £ÉgÀ¼ÀÄ £ÀªÀÄä §¢UÉ ©Ã¼À¨ÁgÀzÀÄ, ¤ÃªÀÅ PÀÄ®UÉlÖ eÁwAiÀĪÀgÀÄ, ¤ªÀÄä eÁw £Á¬ÄVAvÀ PÀqÉ."
24. Exhibit P8 is the letter addressed by the Special Tahsildar, Baindoor, Kundapur Taluk, to the Assistant Superintendent of Police, Kundapura Sub-Division, Kundapura, in which it is stated that Annappa Marati S/o Narayana Marati and Smt. Sudha Marati w/o Narayana Marati belong to Marati community that comes under Scheduled Tribe.
25. Exhibit P10 is the letter addressed by the Special Tahsildar, Baindoor, Kunapur Taluk to the Assistant Superintendent of Police, Kundapura Sub-Division, Kundapura stating that accused 1 to 4 belongs to Billava caste. PW6-
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NC: 2023:KHC:40006 CRL.A No. 1241 of 2016 Lalanki Ravi, the Retired Tahsildar, has also deposed as to the contents of exhibits P8 and 10.
26. PW1, in his evidence, has deposed that the accused abused him that he belongs to scheduled tribe and their shadow should not fall on them and also abused him in filthy language touching his case and that he belongs to Marati Nayak community, which comes under scheduled tribe.
27. PW2 has deposed that the accused abused her in filthy language touching their caste stating that she belongs to a low caste and also gave life threat.
28. PW3 has also deposed that accused abused PW1 and 2 in filthy language by touching their caste that they belong to low caste and gave them life threat and the accused also used vulgar words about the caste.
29. During the course of cross-examination, PW1 to 3 have not deposed anything as to accused abusing PW1 and 2 as stated in complaint Exhibit P1. Apart from this, the accused belong to Marati Nayak community which comes under Scheduled Tribe. The accused have not referred the caste of PWs1 and 2. PWs1 and 2 not belong to Kudubi caste. There is
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NC: 2023:KHC:40006 CRL.A No. 1241 of 2016 no cogent, corroborative and consistent evidence by the prosecution in this regard and also there are material omissions and contradictions in the evidencse of prosecution witnesses. Hence, the evidence of PWs1 to 3 will create reasonable doubt as to the alleged incident.
30. The trial Court has properly appreciated the evidence on record in accordance with law and facts. This Court has also re-examined/re-appreciated the evidence on record. On re- examination/re-appreciation of the evidence on record, this Court do not find any legal infirmity/illegality as to the judgment of acquittal passed by the trial Court. Hence, I answer point No.1 in the negative.
Regarding Point No.2:
31. For the aforesaid reasons and discussions, I proceed to pass the following:
ORDER
1. Appeal dismissed;
2. Order dated 03rd March, 2016 passed in SC No.15 of 2011 by Principal Sessions/Special Judge, Udupi is confirmed;
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3. Registry to send the copy of this judgment along with trial Court records to the trial Court.
Sd/-
JUDGE LNN List No.: 1 Sl No.: 79