Karnataka High Court
State Of Karnataka vs Obalesh T S/O Talawara Katte Basayya on 1 March, 2023
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
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CRL.A No. 100390 of 2019
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 01ST DAY OF MARCH, 2023
PRESENT
THE HON'BLE MR JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR JUSTICE T. G. SHIVASHANKARE GOWDA
CRIMINAL APPEAL NO. 100390 OF 2019
BETWEEN:
STATE OF KARNATAKA
REPRESENTED BY THE
POLICE SUB-INSPECTOR,
BALLARIM RURAL POLICE STATION,
DIST: BALLARI,
THROUGH THE ADDL.
STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...APPELLANT.
(BY SRI V.M.BANAKAR, ADDL.SPP.)
AND:
ROHAN
HADIMANI OBALESH T S/O. TALAWARA KATTE BASAYYA
T
AGE: 35 YEARS, OCC: COOLIE,
Digitally signed by
R/O: NEAR SHANKAR SWAMY TEMPLE,
ROHAN HADIMANI
T
Location:
HIGHCOURT OF
YETTINABUDIHAL VILLAGE, DIST: BALLARI.
KARNATAKA-
DHARWAD BENCH
Date: 2023.03.13
15:05:50 +0530
...RESPONDENT
(BY SRI T.HANUMAREDDY, ADVOCATE (AMICUS CURIAE.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)
AND (3) OF THE CODE OF CRIMINAL PROCEDURE, 1973, SEEKING
TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER
OF ACQUITTAL DATED 18.12.2018, PASSED BY THE PRL. DISTRICT
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CRL.A No. 100390 of 2019
AND SESSIONS JUDGE, AT BALLARI, IN S.C.NO.76/2016 AND TO
SET ASIDE THE JUDGMENT AND ORDER DATED 18.12.2018, PASSED
BY THE PRL.DISTRICT AND SESSIONS JUDGE AT BALLARI IN
S.C.NO.76/2016 AND CONVICT AND SENTENCE THE RESPONDENT/
ACCUSED, FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 504,
307, 354, 323, 324, 506 OF THE INDIAN PENAL CODE, 1860, ETC.,.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
SHRI T.G.SHIVASHANKARE GOWDA, J, DELIVERED THE FOLLOWING:
JUDGMENT
The State is before this Court challenging the judgment of acquittal dated 18.12.2018, passed in S.C.No.76/2016, by the Prl. District and Sessions Judge, Ballari (the 'Trial Court' for short).
2. For the sake of convenience, the parties shall be referred to as per their status in the Trial Court.
3. Briefly stated the facts are that, PW.1 Kenchappa is the resident of Yattinabudihal village of Ballari taluk. The accused herein hails from the same village. The accused as well as the complainant are the neighbours. Since 2004-05 there was a road dispute between both of them, which reached the Civil Court and ultimately decree was passed in favour of complainant- -3- CRL.A No. 100390 of 2019 PW.1. In view of this, both the family of PW.1 as well as accused were prosecuting ill-will and they were not in talking terms. On 15.05.2016 at 08.00 p.m. PW.1 was present in front of his house along with his granddaughter PW.4 Kumari Savithri. The accused armed with club came near to him, abused him in a filthy language on the pretext that in spite of warning why they are using the disputed road and committed criminal intimidation that he will kill him if he repeats the same. When it has been objected by PW.1, the accused in order to commit murder of PW.1 by means of club, made attempts to assault on his head. PW.1 escaped from such assaulted which in turn caused head injury to PW.4. By seeing the same, PW.5 and PW.6 came to the rescue of PW.1. At that time accused pulled their saree physically, man handled them, assaulted them and intentionally insulted them by uttering abusive words and outraged their modesty and threatened them with dire consequences. PWs.4, 5, and 6 since sustained injuries, including PW.1, they have taken -4- CRL.A No. 100390 of 2019 treatment at Government Hospital, Ballari and thereafter PW.1 set the law into motion.
4. Ballari Rural Police registered a case in Crime No.216/2016. After investigation, the accused has been charge sheeted in C.C.No.712/2016 and the matter has been committed to the Court of Sessions in S.C.No.76/2016. The accused pleaded not guilty of the charges leveled against him. Prosecution examined PW.1 to PW.8, Exs.P.1 to P.8 and MO.1 were marked. After formal examination of the accused under section 313 of Cr.P.C., and hearing both the sides, the Trial Court has passed the impugned judgment acquitting the accused for the offences punishable under sections 504, 307, 354, 323, 324, 506 of IPC.
5. Feeling aggrieved by the acquittal, the State is before this Court on the ground that PWs.1, 4 to 7 are the injured eye witnesses. PWs.2 and 3 are the eye witnesses to the incident. Their testimony specifically explain the case of prosecution, but the Trial Court did not appreciate -5- CRL.A No. 100390 of 2019 the same. PW.4 is a child witness who is also an injured suffered head injury. In spite of medical evidence, the Trial Court disbelieved the child witness. The Trial Court ought to have convicted the accused by considering the evidence placed before it, but it has erroneously acquitted the accused.
6. We have heard the arguments of Sri V.M.Banakar, learned Addl. SPP for the appellant State and Sri T.Hanumareddy, learned counsel for respondent- accused.
7. It has been contended by the learned Addl. SPP that the prosecution has produced positive evidence, all the witnesses have supported the prosecution, injuries have been proved by medical evidence, weapon used for commission of offence has been seized. Merely on the ground that there are no independent witnesses, the Trial Court has acquitted the accused by extending the benefit of doubt causing great injustice to the victims and he -6- CRL.A No. 100390 of 2019 sought for conviction of accused by reversing the impugned judgment.
8. Per contra, learned counsel for accused has contended that there is a serious ill-will between both the parties, since 2004-05, there is a civil dispute in respect of the road which is in possession of accused, though there was no incident, by virtue of the civil decree against the accused, in order to create some cause of action, with the aid of the relatives, a false complaint has been concocted and accused has been charge sheeted with the convenience of police. All the witnesses are interested, related and prosecuting high ill-will since 2004-05. They were not in talking terms. In spite of it, in the year 2018, a created case has been brought before the Court. The Trial Court has rightly suspected the bona fides of the witnesses as they are tainted with ill-will and civil dispute and in spite of the independent witnesses are available in the village, not a single witness has been brought before the Court and there is no medical evidence as the doctor -7- CRL.A No. 100390 of 2019 who treated the injured has not been examined. Mere marking of Exs.P.5 to P.8 will not prove the injuries which apart on plain reading of these injury certificates, injuries are all simple in nature, name of the assailant was not explained to the Medical Officer. Therefore the evidence relied upon by the prosecution is tainted, illegal, untrustworthy and therefore, the Trial Court rightly rejected it and supported the impugned judgment.
9. We gave our anxious consideration to the arguments addressed by both the sides. We have perused the material on record.
10. The prosecution has relied upon totally 13 witnesses in the charge sheet, but among them they have examined eight witnesses. Out of eight witnesses, except PW.8-Siddesh, PSI, rest of them are all family members of PW.1 and all of them are prosecuting ill-will against accused in connection with a road dispute since 2004-05 and they are not at all in talking terms. In view of this, let -8- CRL.A No. 100390 of 2019 us examine the weight of the evidence that the prosecution is relying upon.
11. The testimony of PW.1-Kenchappa shows the ill-will, the road dispute and the accused quarreling with PW.1 for using of the disputed road. According to him, on 15.05.2016, at 08.00 p.m., he was standing in front of his house. At that time accused came, abused him and committed criminal intimidation. He was holding a club in his hands and assaulted on his head. He escaped from such assault. For the reason of PW.4 was beside him, it was hit on her head causing injuries. By means of very same club, the accused inflicted injury on his left leg. PWs.5 and 6 came to his rescue, but the accused pulled their saree, abused them, insulted them and for this reason they have taken treatment in the hospital and filed a complaint before the police as per Ex.P.1. He identifies M.O.1 as the club which was used by the accused and it has been seized under Ex.P.2 mahazar.
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12. The testimony of PW.2 Ningappa shows, he was a pancha witness to the seizure of M.O.1 under Ex.P.2. According to him, two years ago there was an incident in front of the house of his uncle PW.1 and in this connection police have drawn Ex.P.2 mahazar and seized the MO.1 at the spot.
13. The testimony of PW.3-Nagaraj shows, on 13.5.2016 at 08.00 p.m. the accused came near the house of PW.1 and abused him in filthy language. He had brought MO.1 in his hand and attempted to assault on PW.1. When PW.1 escaped from the assault, it hit on the head of PW.4 causing blood injury and thereafter the accused inflicted injury on the leg of PW.1. PWs.5 and 6 came to pacify the quarrel but they were also hit by the accused and particularly accused hold hair tut of PW.5 and assaulted on her chest and made attempt to frisk her neck. He, PW.7-Shivappa and Govindappa pacified the quarrel.
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CRL.A No. 100390 of 2019
14. PW.4 Savithri is a minor aged 12 years. She is a child witness and she is also a star witness to the case. Her testimony shows that on the date of incident at about 08.00 p.m. she and PW.2 were sitting on a stone in front of house of PW.1. At that time accused came along with a club and tried to assault PW.1. When PW.1 escaped, club fell on her head and inflicted injury. Thereafter accused assaulted on the leg of PW.1 also. The accused has pulled hair tut of PW. 5, pulled her saree and he stamped on the chest of PW.6 and pulled her saree also. PW.7 pacified the quarrel according to her.
15. The testimony of PW.5 Marekka shows, three years ago at about 08.00 p.m. she was in front of her house along with PW.1 and PW.6. Accused came along with a club and started assaulting, due to which PW.4 sustained hurt as well as PW.1. She tried to pacify the quarrel. The accused held her hair tut and pulled her saree. When PW.6 came, she has been man handled, her saree was pulled and PW.3-Nagaraj, PW.7-Shivappa and
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CRL.A No. 100390 of 2019Govindappa rescued them. They went to Ballari Hospital for treatment.
16. The testimony of PW.6 shows that on 15.05.2006 at 08.00 p.m. they were in the house of PW.1. At that time accused came with a club and assaulted on the leg of PW.1. While doing so, caused hurt on the head of PW.4. She and PW.5 tried to pacify the quarrel, but they were insulted by pulling their saree and hair tut of PW.5. They took treatment at Ballari Hospital.
17. PW.7-Shivappa is an eye witness to the incident. His testimony shows, on 15.05.2016 at 08.00 p.m. PW.1 was standing in front of his house where he was also present. At the time accused came and abused PW.1 with filthy language and he brought one club from near his house and assaulted on the head of PW.1. As PW.1 escaped, it fell on PW.4 and caused the injury. When PWs.5 and 6 came to rescue, they were insulted by pulling their hair tut and saree. Hence he, PW.3 and Govindappa
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CRL.A No. 100390 of 2019pacified the quarrel and later, he took them to the hospital for treatment.
18. PW.8 Siddesh Ilkal, is the PSI of Ballari Rural P.S. His testimony shows that on 15.05.2016 he received wireless message, visited the VIMS Hospital, Ballari, where he found PW.1 was under treatment and he has recorded his statement at Ex.P.1 and registered FIR at Ex.P.3. On the next day he visited the spot and drawn Ex.P.2 mahazar and seized MO.1 club, recorded the statement of witnesses. According to him, CW.13 Vasantkumar, PSI, by collecting the injury certificate has filed the charge sheet. This is the weight of the evidence that the prosecution has relied upon and requesting the Court to accept it to convict the accused.
19. We have analyzed the entire evidence relied upon by the prosecution. From the evidence it is very clear that the Medical Officer who treated PWs.1, 4 to 6, has not been examined before the Court. Exs.P.5 to P.7 their wound certificates are marked, even though the Medical
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CRL.A No. 100390 of 2019Officer has not been examined. On a careful perusal, we can notice that the history of assault though stated by neighbour at Yattinabudihal village, the name of accused is not forthcoming in the wound certificate. All the injuries that they have suffered are pain and tenderness and they are simple in nature. The charge against the accused is that he has attempted to commit murder of these witnesses, who have sustained pain and tenderness.
20. Ex.P.1 is the complaint. On a careful perusal, it is pertinent to note from the recitals of it that on 15.05.2016 at 08.00 p.m. PW.1 was in front of his house. The accused after seeing him came near to him, abused him as bastard, threatened him that not to move in the disputed road, otherwise he will kill him. The accused took the club which was in front of the house of PW.1 and tried to assault on his head which fell on PW.4 and caused injury. Thereafter PWs.5 and 6 came, they have been insulted by pulling their saree and they have been assaulted by means of hands. This simple complaint made
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CRL.A No. 100390 of 2019the PW.8 to register a case under section 307 of IPC. The complaint also refers the ill-will and also civil dispute between PW.1 and the accused since 2004-05. Keeping these recitals in mind, let us examine the veracity of evidence of PWs.1 to 7.
21. According to PWs.1, 3, 5 and 7, they were near the house when the accused came to quarrel with them. Contrarily we see from the testimony of PW.4 that when accused came to quarrel, she and PW.1 were sitting on a rock in front of the house, whereas PW.6 says, when the accused came to quarrel, all of them were in the house of PW.1. This shows, where actually injured as well as the eye witnesses were present, when the accused came to quarrel with them creates doubt in the mind of the Court.
22. PWs.2, 3, 5 and 6 are the niece of PW.1. PW.4 is the granddaughter of PW.1 and PW.7 is the son of PW.1. The cross-examination of all these witnesses clearly bought out that at the place of incident there are neighbouring houses, several fellow villagers have
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CRL.A No. 100390 of 2019witnessed the incident. But none of the witnesses found place either in the complaint or in the charge sheet and there is no explanation as to why the statement of fellow villagers have not been recorded by the Investigating Officer.
23. As seen from the testimony of PWs.4 to 7, there is nothing so serious that one can infer that attempt to commit murder had taken place. A simple quarrel with the background of ill-will and enmity and also in the result of civil dispute regarding road, PW.8 has facilitated PW.1 to register a case under section 307 of IPC and intention is very clear that in the background of this ill-will they want to put the accused behind the bars. They are successful in doing so as the accused was arrested and he was remanded to Judicial Custody. Hence, for the said reason the Investigating Officer did not mind to investigate the case, collect the independent evidence so as to bring home the guilt of accused. From 02.08.2016 to 27.01.2017 the accused has been put behind the bars for no reason.
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CRL.A No. 100390 of 2019
24. As we analyzed the evidence, we clearly found that MO.1 belong to PW.1 whereas PW.7 says, MO.1 belongs to accused. This clearly goes to show that even a pancha witness is the family member of PW.1. Then PWs.1 to 7 prosecuting such ill-will against the accused in the background of civil dispute and also the level of evidence that is expected from the prosecution to bring home the guilt of the accused is too high. Here in this case the level of evidence that has been relied upon is too low not inspiring the confidence of the Court tainted with ill-will and enmity which is not enough for its acceptance.
25. We have perused the impugned judgment. The learned trial Judge has given cogent reasons as to why the evidence is unreliable as it is tainted, while extending the benefit of doubt in favour of the accused. In the facts and circumstances, we found that the reasons assigned by the learned trial Judge is just to opt. Hence, the prosecution evidence does not inspire confidence of this Court. We are not persuaded to hold the finding recorded by the Trial
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CRL.A No. 100390 of 2019Court is erroneous and it does not call for interference by this Court. Therefore, the appeal deserves to be dismissed. In the result, the appeal stands dismissed.
SD JUDGE SD JUDGE MRK List No.: 1 Sl No.: 38