Karnataka High Court
Shivanarayan Sharma vs State Of Karnataka on 16 June, 2023
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CRL.A No. 632 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JUNE, 2023
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 632 OF 2016
Between:
Shivanarayan Sharma
S/o. Hariram
Aged about 63 years,
Sri Lakshminarayan Temple
CA No.1, 4th Block,
3rd Stage, Havanur Circle
Basaveshwarnagar,
Bengaluru-560 079
Also at
Digitally signed No.102, Near Anjeneya Temple,
by SRIDEVI S Sanegoravanahalli, 3rd Block
Location: HIGH 3rd Stage, Basaveshwaranagar,
COURT OF Bengaluru -560 079
KARNATAKA
...Appellant
(By Sri. M.N.Nehru, Advocate)
And:
1. State of Karnataka
By Basaveshwaranagar Police,
Bengaluru-560 079
2. Venugopal
S/o. Lakshminarayanappa
Aged about 40 years,
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CRL.A No. 632 of 2016
R/at No.32/28, 1st Main,
Manivilas Garden,
Basaveshwaranagar
Bengaluru-560 079
3. Swamy Ramanujacharya
Mahanth
S/o. Narayanacharya
Aged about 31 years,
R/at Lakshminarayanaswamy Temple,
No.1, 3rd Stage, 4th Block,
Basaveshwarnagar, Bengaluru-560 079
4. Shankara Pande
S/o. Ramanath Pande
Aged about 19 years,
R/at Lakshminarayanaswamy Temple,
No.1, 3rd Stage, 4th Block,
Basaveshwarnagar, Bengaluru-560 079
5. Babu
S/o. Chandrashekhara
Aged about 21 years,
R/at Radiopark Grama
2nd Gate, Bellary Town,
Bellary
6. Venugopal
S/o. M.K.Krishna
Aged about 53 years,
R/at No.842, 4th Cross,
3rd Main, Near Shankarnag
Bus Stop, Kamalanagar
Bengaluru-560 079
...Respondents
(By Sri K.S.Abhijith, HCGP for R1;
Sri M.Munegowda, Advocate for R2;
Sri B.Madhusudhan Adiga, Advocate for R3 and R6;
Sri Laxminarayan Hegde N., Advocate for R4;
Sri E.Suyog Herele, Advocate for R5)
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CRL.A No. 632 of 2016
This Criminal Appeal is filed u/s.372 Cr.P.C., praying to
set aside the judgment of acquittal dated 31.12.2015 passed by
the LXII Additional City Civil and Sessions Judge, (CCH-63), at
Bengaluru in S.C.No.771/2012 for the offence p/u/s 143, 147,
148, 307, 324 r/w 149 of I.P.C. and etc.
This Criminal Appeal, coming on for hearing, this day,
Sreenivas Harish Kumar J., delivered the following:
JUDGMENT
This appeal is filed under section 372 of Code of Criminal Procedure. The appellant is PW.3 Shivanarayan Sharma, one of the injured in the incident said to have taken place on 01.04.2011. Since by judgment dated 31.12.2015, the Addl. City Civil and Sessions Judge (CCH-
63) acquitted the accused, this appeal has been preferred.
2. PW.2 Swaminath gave a report to the police at 0.45 hours on 02.04.2011. He stated that he was the Manager in the temple of Lakshminarayaswamy belonging to Sri. Ramadevara Matta Charitable Trust. He complained that accused no.2, Ramanujacharya and accused no.3 Shankara Pandey were brought by RSS people about two years ago and after their arrival there used to take place -4- NC: 2023:KHC:21170-DB CRL.A No. 632 of 2016 quarrels between him and accused 2 and 3. Some people of RSS who did not like him to continue as Manager instigated accused 2 and 3 with a view to grabbing the temple property and in this background, on 01.04.2011 at 9.45 p.m., when PW.2 was in the temple about 10 to 15 persons came in two cars and then accused 2 and 3 assaulted him with a club and iron rod. Others were shouting to kill him. When PW.5 Shashibushana Dube, PW.3 Shivanarayana and PW.6 Ramdas interfered to rescue him, they too were assaulted. Thereafter the police came and shifted them to hospital for treatment. When PW.2 was in Panacea Hospital, a statement was recorded by the police. FIR was registered. Investigation led to charge sheeting five accused. Charge sheet was filed for the offences punishable under sections 143, 147, 148, 324 and 307 r/w 149 IPC.
3. PW.1 to 13 were the witnesses examined by the prosecution, Ex.P.1 to 8 were the documents and the iron rods and seven clubs were the material objects marked as -5- NC: 2023:KHC:21170-DB CRL.A No. 632 of 2016 M.O.1 to 9. For acquitting the accused, the trial court recorded the following reasons:
3.1 Though PW.2, PW.3, PW.5, PW.7, PW.8 and PW.9 have supported the prosecution case giving full account of the incident and how each one of them was assaulted, their evidence is not sufficient to convict the accused.
Accused no.2 was appointed as the Mahanta of the Lakshminarayana temple in the year 2004 and since the date of his appointment, he was managing the temple affairs and living within the premises of the temple. The evidence of prosecution witnesses shows active participation of accused 2 and 3 and the participation of accused 1,4 and 5 is not at all disclosed by the witnesses except PW.7 who has stated that all the accused persons assaulted PW.5 with M.Os. 2 to 9. The overt act of each accused is not deposed by independent witnesses. PW.3 and 5 have deposed that accused no.2 sat on the chest of PW.2 and hit him on his head with a homa kunda, but PW.2 has not deposed that he was hit with a homa kunda. If really PW.2 was assaulted with homa kunda, he should -6- NC: 2023:KHC:21170-DB CRL.A No. 632 of 2016 have sustained grievous injury on his head, but he did not sustain any such injury.
3.2. PW.2, 3, 5 and 8 have deposed that accused no.3 poured hot water on them; the wound certificates do not disclose burn injuries and moreover in Ex.P.4, PW.2 stated nothing about it. This gives rise to suspicion in the prosecution case.
3.3. PW.2,3,5,7 and 8 appear to be interested witnesses as in the cross-examination they have admitted that they acted at the behest of one Devanayakacharya, a trustee of Ramadevara Matta Trust situated at Melukote. They also admitted that they were accused in the counter case, SC.642/2014.
3.4. When accused no.2 was examined under section 313 Cr.P.C., he produced 32 documents with a list. Perusal of those documents would reveal that accused no.2 was coroneted as Mahanta of Lakshminarayana temple. The certified copies of ten police complaints made by accused no.2 against PW.2, 6, 8 and others show existence of disputes between them regarding -7- NC: 2023:KHC:21170-DB CRL.A No. 632 of 2016 management of the temple. There are also civil suits between the parties. The documents relating to the suits show that there was an effort to remove accused no.2 from the post of Mahanta, and an application filed in one of the suits for temporary injunction against accused no.2 was dismissed and the appeal preferred against the said order was also dismissed. Therefore all these documents clearly indicate enmity between the two parties.
3.5. The evidence given by the doctors with regard to injuries are also difficult to be believed because the evidence of PW.1 is not supported by x-ray report and the nature of injuries sustained by PW.2,3 and 5 did not warrant hospitalization for a period of fifteen days. There were no injuries on the vital parts of the body. Actually PW.12 was not at all cited by the prosecution as a witness. She is a medical officer at KC General Hospital. She was summoned at a later stage. Her evidence discloses that she received MLC requisition from the police and it was pasted to the MLC register. PW.12 had brought the MLC register and when she was questioned in the cross- -8-
NC: 2023:KHC:21170-DB CRL.A No. 632 of 2016 examination, she could not say whether there was any sign of pasting the MLC slip to the register. It is also observed that the MLC register did not contain any sign or mark of the pasting of MLC requisition. Referring to the wound certificates Ex.P.1 to P.3 issued at Panacea Hospital, it has been observed that history written therein was contrary to the deposition of PW.2, 3 and 5. If they stated that they were taken to hospital by the police, in the wound certificates it is written that PW.2 was brought to hospital by one Shivkumar and PW.3 and 5 by one Smt. Sharada.
3.6. Referring to Ex.P.4, it is held that the signature of PW.2 found therein differs from his signature on the deposition sheet and therefore for all these reasons the prosecution case does not appear to be free from doubtful circumstances; and as a result the accused need to be acquitted.
4. Questioning the correctness of the findings given by the trial court, Sri. M.N.Nehru, learned counsel for the -9- NC: 2023:KHC:21170-DB CRL.A No. 632 of 2016 appellant argued that the trial court has erred in giving benefit of doubt to the accused. All the injured witnesses and the eye witnesses have supported the prosecution case, their evidence clearly discloses the motive behind the incident and the overt act of each accused. Their testimonies are further corroborated by the medical evidence. PW.1 Dr. Kiran and PW.12 Dr. Tulasi Devi gave evidence that they treated the injured and issued wound certificates mentioning the injuries sustained by PW.2, 3, 5 and 6. The witnesses have not at all been discredited. Further he referred to the evidence of the witnesses to the panchanamas and argued that they also supported the prosecution case. The weapons used by the accused for committing the offences were seized by the police and they were identified by the witnesses in the court. The doctors have deposed that injuries mentioned in the wound certificates are likely to occur if the weapons marked M.O. 1 to 9 had been used for assaulting the injured. His further argument was that if for any reason the trial court was of the opinion that there were no
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NC: 2023:KHC:21170-DB CRL.A No. 632 of 2016 materials for convicting the accused for the offence under section 307 IPC, they could have been convicted for the offence under section 326 IPC as it is clearly mentioned in the wound certificates that some of the injured witnesses sustained fractures as a result of assault on them. In this view it was his argument that the judgment of the trial court needs to be reversed and the accused convicted.
5. Sri. Madhusudhan Adiga, learned counsel for respondents 3 and 6 i.e., accused no.2 and 5 respectively argued that the trial court has rightly come to conclusion to acquit the accused in view of many discrepancies in the prosecution case. His first submission was that a number of documents produced by these respondents when they were examined under section 313 Cr.P.C. clearly disclose existence of civil disputes between the rival parties. In fact there were attempts to dethrone accused no.2 from Mahantaship of the temple and there were physical assaults on him. In this connection, he approached the police station and made complaints against some of the so
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NC: 2023:KHC:21170-DB CRL.A No. 632 of 2016 called injured witnesses in this case. Therefore there was a long standing enmity. Keeping in mind all the previous litigations, both civil and criminal, the trial court has assessed the evidence.
6. Sri. Madhusudhan Adiga argued that though the evidence given by the injured and the eye witnesses in the examination-in-chief appears as if they have supported the prosecution case, the tenor of the answers in the cross-examination clearly indicate that whatever they have deposed in the examination-in-chief cannot be believed because of contradictions and inconsistencies found in their evidence. In the cross-examination, each injured witness was questioned with regard to the description of the injures that each of them gave in the examination-in- chief and the investigating officer examined as PW.13 clearly answered that none of them had given such statements and thereby the contradictions were proved according to law. The contradictions thus brought forth are not trivial to be ignored; they are significant and they
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NC: 2023:KHC:21170-DB CRL.A No. 632 of 2016 make the entire testimonies of the injured witnesses and the eye witnesses unbelievable.
7. It was further argument of Sri. Madhusudhan Adiga that the wound certificates at Exs.P.1 to P.3 show that the injured viz., Swaminath, Shashibushan Dube and Shivanarayana Sharma were all admitted to Panacea Hospital on 02.04.2011 and discharged on 16.04.2011. The nature of injuries sustained by them did not warrant their admission to the hospital as inpatients and even if admission was required, there was no need for all of them to remain in the hospital till 16.04.2011 as all of them had sustained different types of injuries. This itself clearly shows that deliberately they got the wound certificates foisted for the purpose of the case. Even the doctors co- operated with them and hence the wound certificates and the evidence of the doctors should not be believed.
8. Referring to Ex.P.3 the wound certificate of Shivanarayana Sharma, Sri. Madhusudhan Adiga argued that when he was inpatient in the hospital from
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NC: 2023:KHC:21170-DB CRL.A No. 632 of 2016 02.04.2011 to 16.04.2011, it was impossible that he would have come to court premises on 7.4.2011 for instituting the suit O.S.2587/2011. Though in his evidence he has stated that he did not go to court premises and that his advocate had come to hospital for taking his signature, this answer cannot be believed because the prosecution has not produced any evidence indicating that the signature of PW.3 was taken by the advocate in the hospital. The affidavit filed by PW.3 in the suit is attested by a notary whose name is not disclosed by PW.3 in the cross-examination. His argument in this regard was that PW.3 and the other witnesses might have obtained false wound certificates showing as if they were inpatients in the hospital even though they were actually not inpatients.
9. Referring to the evidence of PW.2 Sri. Madhusudhan Adiga argued that his testimony is to be rejected out rightly because he appears to be a liar. He claims to be the Manager of the temple, but he does not
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NC: 2023:KHC:21170-DB CRL.A No. 632 of 2016 know about the litigations concerning the temple. This shows that he was not at all the Manager and that he has given false evidence before the court. He further argued that in the private complaint made by PW.3 against accused no.2, police filed 'B' report which itself is indicative of the fact that all his efforts to falsely implicate the accused failed and for this reason the present case should also be viewed with suspicion. With these points he argued for dismissing the appeal.
10. Sri. M.Munegowda, learned counsel for respondent no.2 and Sri. Lakshminarayana Hegde, learned counsel for respondent no.4 adopted the argument of Sri. Madhusudhan Adiga. Sri. Suyog Herale, learned counsel for respondent no.5 submitted that no injured witness has spoken against respondent no.5 i.e., accused no.4 and therefore acquittal of respondent no.5 cannot be interfered with.
11. Sri. M.N.Nehru, learned counsel for the appellant submitted that pendency of civil disputes is not disputed.
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NC: 2023:KHC:21170-DB CRL.A No. 632 of 2016 With regard to filing of the suit on 07.04.2011, he submitted that it was quite possible that the advocate and the notary might have gone to the hospital for taking signature of PW.3 and thus the suit might have been filed when he was in hospital.
12. We have perused the entire evidence and the prosecution papers. We have also considered the points of arguments. It is true that the injured witnesses viz., PW.2, 3, 5 and 6 have stated in their examination-in-chief about the incident said to have taken place at about 9.45 p.m. on 01.04.2011 and the nature of the injuries each one of them sustained. Their evidence appears to have been corroborated by independent witnesses viz., PW.7, 8 and 9. But it is to be mentioned here that the overt act of each of the accused as narrated by the injured witnesses and the eye witnesses cannot be believed per se because of lot of improvements that they made while giving evidence before the court. The contradictions by way of improvement elicited from them was put to the
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NC: 2023:KHC:21170-DB CRL.A No. 632 of 2016 investigating officer who has deposed that they have not given statements in that way. To give an instance, PW.3 stated that second accused assaulted him with a homa kunda on his head and that two mobile phones and a gold ring that he had kept in his pocket were also removed. PW.8 has stated that when PW.3 fell down, second accused sat on his chest and assaulted him with homa kunda. The investigating officer has stated that neither PW.3 nor PW.8 has given a narration about assault with homa kunda; nor homa kunda was seized during investigation. If it is assumed that PW.3 was assaulted with homa kunda on the head, PW.3 should have sustained a severe head injury and that should have been mentioned in the wound certificate. The wound certificate does not disclose any such injury. Other eye witnesses do not state any assault on PW.3 with homa kunda by second accused. PW2 has stated that the accused threw hot water on them and if it were to be true, PW.2 should have sustained burn injury and the doctor should have noticed such an injury. But the wound certificate of PW.2 does not
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NC: 2023:KHC:21170-DB CRL.A No. 632 of 2016 disclose any burn injury. Therefore whatever PW.2,3,5 and 6 have stated about the overt act of each of the accused does not appear to be believable and thereby an account of incident given by PW.7,8 and 9 also becomes unbelievable. The contradiction elicited from them is not insignificant.
13. Though the wound certificates, Exs.P.1, P.2, P.3, P.7 and P.8 indicate certain injuries, they have to be looked with askance. Exs.P.1, P.2 and P.3 were the wound certificates issued by Panacea Hospital. The injuries mentioned therein though disclose fractures, are not suggestive of admission of the injured in the hospital as inpatients. But all of them were inpatients in the hospital from 2.4.2011 till 16.4.2011 and discharged on the same day. If the nature of the injury sustained by each of them is seen, it can be very well said that all of them might not have required hospitalization for such a long period. The prosecution has not elicited from PW.1 the reason for hospitalization for long period. Then Ex.P.1
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NC: 2023:KHC:21170-DB CRL.A No. 632 of 2016 shows that PW.2 was taken to Panacea Hospital by one Shivakumar and Exs.P.2 and P.3 show that PW.5 and PW.3 were taken to hospital by Smt. Sharada. But these injured witnesses have stated that the police took them to hospital. The other two wound certificates Exs.P.7 and P.8 issued by KC General Hospital show that the injured viz., Shashibushan Dube (Shashi) and Shivanarayan were taken to KC General Hospital first and from there they appear to have gone to Panacea Hospital. PW.12 the doctor who treated them at the KC General Hospital has stated that the injured themselves told her that they would go to private hospital. Interestingly it may be noticed that PW.12 was not cited as a witness in the charge sheet and it was at the instance of the public prosecutor, she was summoned to the court. The investigating officer has no explanation for not citing PW.12 as a witness in the charge sheet. This fortifies the point of argument of the learned counsel for the respondents that the injured might have gone to hospital
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NC: 2023:KHC:21170-DB CRL.A No. 632 of 2016 of their choice for obtaining wound certificates suiting their convenience.
14. From the evidence of PW.12 it can also be noticed that the requisition given by the police to the doctor is usually affixed to the MLC register and as has been observed by the trial court, the MLC register did not contain any mark of affixing the requisition slip in the MLC register. Therefore for all these reasons the evidence given by two doctors PW.1 and PW.12 is not convincing.
15. All the prominent witnesses have stated that about 10 to 15 persons came to the temple in two cars. If this is the consistent evidence of the witnesses, it is not understandable as to how the investigating officer filed charge sheet only against five accused. Even the cars used for commission of the offence were not seized. PW.9, an eye witness has criminal antecedents as admitted by him in the cross-examination. Many cases were registered against him at Kudur Police Station. That apart, PW.2 has stated that he was the Manager of the
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NC: 2023:KHC:21170-DB CRL.A No. 632 of 2016 temple, but does not know about the litigations, both civil and criminal pending concerning the temple. Documents produced by the accused during their examination under section 313 Cr.P.C., show many suits and criminal cases being filed against accused no.2. In fact pertaining to the case on hand the accused also registered a counter case against the prominent witness of this case and it was registered as Crime No.151/2011. Accused no.2 claims that he was appointed as Mahanta of the temple and the witnesses deny it. Document produced by him show that he was appointed as Mahanta. It appears that all the injured witnesses are the supporters of Devanayakacharya who wanted to remove accused no.2 from Mahantaship. Another glaring discrepancy pointed out by Sri. Madhusudhan Adiga was that PW.3 instituted a suit O.S.2587/2011 on 7.4.2011 when he was in the hospital. PW.1 does not say that PW.3 was permitted to go out of the hospital. Though PW.3 has stated that he signed the suit papers in the hospital, there are no documents to believe his statement. Therefore in view of all these
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NC: 2023:KHC:21170-DB CRL.A No. 632 of 2016 doubtful circumstances, as has been observed by the trial court, benefit must be given to the accused.
From the foregoing discussion we conclude that the trial court has rightly acquitted the accused and therefore we do not find good ground to interfere with the judgment of the trial court. Appeal is consequently dismissed.
Sd/-
JUDGE Sd/-
JUDGE sd List No.: 1 Sl No.: 1