HIGH COURT OF KARNATAKA AT BENGALURU DATED…
State appeal dismissed; Crl.A.1298/2012 partly allowed - accused Nos.3,4,7,8,11,13,14,16 acquitted, accused No.1's conviction under Ss.326,324 IPC confirmed but acquitted of S.148; Crl.A.1299/2012 all
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF APRIL, 2024
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.241 OF 2018 CONNECTED WITH
CRIMINAL APPEAL NO.1298 OF 2012 CRIMINAL APPEAL NO.1299 OF 2012
CRL.A. NO.241/2018:
BETWEEN:
THE STATE OF KARNATAKA THROUGH POLICE SUB-INSPECTOR BANTWAL RURAL POLICE STATION BANTWAL REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU-560 001.
…APPELLANT
(BY SMT. SOWMYA R., H.C.G.P.)
AND:
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AGED 35 YEARS S/O MOIDU KUNHI RESIDING AT KANCHILA HOUSE MANCHI VILLAGE BANTWAL TALUK-574 211.
…RESPONDENTS
(BY SRI SATHISH N., ADVOCATE, FOR R-1 TO R-3)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 7-6-2017 PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K., MANGALURU, IN S.C. NOS.87/2008 AND 16/2010 ACQUTTING THE RESPONDENTS/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 143, 147, 148, 504, 447, 427, 435, 324, 326, 506 AND 307 READ WITH SECTION 149 OF IPC.
CRL.A. NO.1298/2012:
BETWEEN:
AGE 29 YEARS
RESIDING AT PANJALU, KANDAYAPALUMANE MANCHI VILLAGE, BANTWAL TALUK D.K. DISTRICT.
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…APPELLANTS (BY SRI K.A. CHANDRASHEKARA, ADVOCATE, FOR A-1 TO A-4 AND A-6 TO A-9, AND SRI PRASANNA V.R., ADVOCATE, FOR A-5.)
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AND:
STATE OF KARNATAKA BY SUB-INSPECTOR OF POLICE BANTWAL RURAL POLICE STATION.
…RESPONDENT
(BY SMT. SOWMYA R., H.C.G.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT DATED 31-10-2012 AND ORDER ON SENTENCE DATED 2-11-2012 PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K., MANGALURU, IN S.C. NO.90/2005 CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 326, 324 AND 148 READ WITH SECTION 149 OF IPC.
CRL.A. NO.1299/2012:
BETWEEN:
ABDUL LATHIEF S/O HAMEED AGE 30 YEARS RESIDING AT 5 CENTS QUARTERS IRA VILLAGE, BANTWAL TALUK D.K. DISTRICT.
…APPELLANT
(BY SRI K.A. CHANDRASHEKARA, ADVOCATE)
AND:
STATE OF KARNATAKA BY SUB-INSPECTOR OF POLICE BANTWAL RURAL POLICE STATION.
…RESPONDENT
(BY SMT. SOWMYA R., H.C.G.P.)
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT DATED 31-10-2012 AND ORDER ON SENTENCE DATED 2-11-2012 PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K., MANGALURU, IN S.C. NO.12/2008 CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 324 AND 148 READ WITH SECTION 149 OF IPC.
THESE CRIMINAL APPEALS ARE HAVING BEEN HEARD AND RESERVED ON 19-2-2024, COMING ON FOR PRONOUNCEMENT, THIS DAY, VENKATESH NAIK T. J., PRONOUNCED THE FOLLOWING:
J U D G M E N T
Challenging the acquittal of accused Nos.5, 10 and 15 in S.C. Nos.87/2008 and 16/2010 by the II Additional District and Sessions Judge, Dakshina Kannada, Mangaluru, the State has preferred Criminal Appeal No.241/2018. Whereas challenging their conviction on the very same cases for the offences punishable under Sections 143, 147, 148 and 324 read with Section 149 of the Indian Penal Code, 1860 (for short, 'IPC'), accused Nos.1, 3, 4, 7, 8, 11, 13, 14 and 16 have filed Criminal Appeal No.1298/2012 and accused No.9 has filed Criminal Appeal No.1299/2012.
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PW1-Karunakara Poojary claims to be owner-cumdriver of auto rickshaw bearing Registration No.KA-19 A-1811. On 6-1-2004 at 10:00 p.m., when PW1, along with his family members, was in the house, he heard the sound of somebody pelting stone to his house roof. The family members opened the door and came out of the house to the front-yard. They found accused Nos.1 and 2. They sought services of auto rickshaw of PW1 on hire. When he declined, they abused him. Accused No.1 tried to assault him with talwar on his neck with intention to kill him. When PW1 warded his left hand to escape the blow, the talwar hit his left arm causing bleeding injuries. By that time, about 20 to 25 muslim youths, who had assembled there, started to throw soda bottles and stones. When family members came to rescue PW1, accused-Riyaz assaulted PW2-Thimmappa Poojary on his shoulder causing bleeding injury. Other accused pelted stones and soda bottles on them, as a result, his father, mother and elder brother sustained injuries. The accused cut the telephone wire connection and set fire the auto rickshaw of PW1 on fire. When PW1 and his family members screamed
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for help, the neighbouring people came there. Then the accused fled away from the spot threatening the complainant party of their lives. It is further alleged in the complaint that accused Nos.1 and 2 had teased PW11Prema and PW9-Mohan Moolya (in S.C. No.87/2008) and in this regard, some galata had taken place between them. The accused thinking that PW1 was also responsible for the said galata, with common object of murdering him, formed unlawful assembly and assaulted PW1, his fatherPW2, his mother-PW3, and his elder brother-PW4. Thereafter, PW13-M. Bhoja and others shifted PWs.1 and 2 to SCS Hospital, Mangaluru. A medico legal intimation as per Ex.P5 was sent to Kadri Police Station. On receiving Ex.P5, PW15-Purushothama T, Assistant Sub-Inspector of Police, visited SCS Hospital at 4:30 a.m. and recorded the statement/complaint of PW1 as per Ex.P1 and on returning to the Police Station, he registered FIR-Ex.P6 in Crime No.4/2004.
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offence, drew spot mahazar as per Ex.P2 and prepared the scene of sketch of offence as per Ex.P9. He collected wooden clubs, soda bottles pieces, stones, match box, burnt match sticks, and collected bloodstained soil, and sample soil at the time of mahazar, recorded the statements of injured witnesses, eyewitnesses and other circumstantial witnesses and after conclusion of the investigation, filed the charge-sheet to the Court for the aforesaid offences.
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to the conclusion that the prosecution proved the charges beyond reasonable doubt against accused Nos.1, 3, 4, 7, 8, 9, 11, 13, 14 and 16 and convicted them. However, the
trial Court acquitted accused Nos.5, 10 and 15 of the offences charged. The trial Court for convicting the accused relied on the evidence of injured witnesses-PWs.1 to 4, eyewitnesses-PWs.5 to 10 and circumstance of recovery of articles. Eyewitnesses and injured witnesses have categorically stated about the individual overt acts of the accused and the manner of assault committed by them on PWs.1 to 4. Their oral testimonies are corroborated by
the evidence of PW23-Dr. Prajeeth Hegde. As per the medical evidence, PWs.1 to 4 sustained injuries. The motive behind in commission of the offence is that on 6-1-2004 at 8:00 a.m., while PW11 and Mohan Moolya (PW9 in S.C. No.87/2008) were proceeding on their way, accused Nos.1 and 2 teased PW11. Hence, Mohan Moolya questioned accused Nos.1 and 2 as to why did they tease
PW11 and hence, in this regard, there was quarrel between them. The accused thinking that PW1 was also
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responsible for the said galata, with common intention and object to murder him, formed unlawful assembly and assaulted PW1, his father-PW2, his mother-PW3, and his elder brother-PW4. Hence, the trial Court based on the oral testimonies of the injured witnesses, eyewitnesses, medical evidence and other circumstantial witnesses including the official witnesses convicted the accused for the aforesaid offences.
3, 4, 7, 8, 9, 11, 13, 14 and 16 contended that the judgment and order passed by the trial Court is opposed to the law, facts and circumstances of the case. The judgment and order passed by the trial Court is unsustainable and it is without proper appreciation of entire evidence on record. The appellants are falsely implicated in this case and they are innocent persons. It is contended that the alleged incident have taken place on 6-1-2004 at 10:00 p.m., but the complaint came to be registered on 7-1-2004 at 4:30 a.m. It shows that the complaint is an afterthought and is filed due to political
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enmity. As per the contents of complaint-Ex.P1,
eyewitnesses and injured witnesses have made specific overt acts against accused Nos.1 and 2. The evidence against the rest of the accused is omnibus in nature. As per Ex.P11-Wound Certificate, the injuries of PW1 was grievous in nature and as per Exs.P12 to 14, the injuries of PWs.2 to 4 are simple in nature.
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Hence, there is contradiction in their evidence as to which of the accused assaulted PWs.1 and 2. PW10, wife of PW4, did not name any accused. PW11 deposed that while she was on her way to work, two accused outraged her modesty. She identified accused No.1, but did not identify another accused.
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the appellant-State in Criminal Appeal No.241/2018 has contended that the judgment and order of acquittal passed by the trial Court in S.C. Nos.87/2008 and 16/2010 against accused Nos.5, 10 and 15 is illegal, invalid and contrary to law, evidence and the material on record. Reasons assigned by the trial Court while passing the impugned judgment and order of acquittal are erroneous and has caused substantial miscarriage of justice. It is contended that the prosecution has proved beyond all reasonable doubt that accused Nos.5, 10, 15 along with accused Nos.1 to 4, 6 to 9, 11 to 14 and 16 formed themselves into unlawful assembly on 6-1-2004 at 10:00 p.m. with common object of such unlawful assembly, armed with deadly weapons such as stones, club and soda bottles and committed the act of rioting. The evidence would also clearly disclose that this unlawful assembly had trespassed into the front-yard of the house of PW1Karunakara Poojary, criminally intimidated him and caused grievous hurt to PW2-Thimmappa Poojary. The evidence also discloses that accused Nos.5, 10 and 15 were also
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part of the unlawful assembly and they also voluntarily caused hurt to PW3-Kamala and PW4-Ashoka Poojary with talwars. It is contended that the evidence discloses that
the intention was to commit murder of PW1-Karunakara Poojary and therefore, the acts constituted the offence under Section 307 of IPC. The unlawful assembly also caused mischief by destruction of auto rickshaw and criminally intimidated PWs.1 to 4. The evidence on record clearly indicates that PW1-Karunakara Poojary and PW2Thimmappa Poojary sustained grievous injuries and their evidence discloses that accused Nos.5, 10 and 15 were also present at the time of assault and they were the members of unlawful assembly. The evidence of PWs.1 to 4-injured witnesses and evidence of PWs.5 to 10eyewitnesses is cogent, consistent and corroborates each other. There was no reason to disbelieve the evidence of such injured witnesses and eyewitnesses. But the trial Court erred in picking up some stray improvements made in the evidence of these witnesses and giving benefit of doubt to accused Nos.5, 10 and 15. As per the evidence of PW1, though he has not clearly mentioned the names of
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accused Nos.5, 10 and 15, but has specifically stated the presence of 20 to 25 muslim youths along with accused Nos.1 and 2 had assaulted him and his family members.
Hence, the trial Court has erred in not considering the evidence of injured witnesses in its right perspective which would establish that accused Nos.5, 10 and 15 were also part of the unlawful assembly and involved in the incident in question. There should be very strong reasons to disbelieve the evidence of such injured witnesses. The evidence does not disclose that the witnesses had any reason or motive to falsely implicate the accused, therefore, the finding of the trial Court that the evidence of PW1 is not trustworthy, is contrary to the evidence on record and liable to be interfered with. It is contended that the trial Court also erred in disbelieving the evidence of another injured witness-PW4-Ashoka Poojary. Evidence of PW4 would disclose the presence of accused Nos.5, 10 and 15 at the scene of offence and their participation in the crime. His evidence also discloses the threat posed to him
by all the accused at the time of committing crime. Further, the evidence would satisfy all the ingredients that
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are necessary to prove the charges against all the accused including accused Nos.5, 10 and 15. Therefore, it is a clear failure on the part of the trial Court to consider the evidence of the injured witnesses and eyewitnesses in its right perspective, particularly, against accused Nos.5, 10 and 15. It is contended that the trial Court erred in disbelieving the evidence of PW2-Thimmappa Poojary, who received injury on his left-arm as a result of usage of talwar on him. The evidence of all these witnesses is cogent, consistent and corroborative with each other. The evidence of PW4 is further supported by the evidence of PW5. Merely because these witnesses did not know the names of the other accused, that would not be ground enough to disbelieve their entire evidence. The trial Court has erred in relying heavily on the fact that the above witnesses were not in a position to give the names and address of accused Nos.5, 10 and 15. It is contended that, if the evidence is read as a whole, it would clearly disclose that the prosecution proved charges against all the accused beyond all reasonable doubt. It is contended that trial Court failed to consider that the prosecution has
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laid cogent and consistent evidence which would support various circumstances pointing towards the guilt of all the accused. Though certain witnesses have not supported the case of the prosecution, the evidence of injured witnesses and eyewitnesses is sufficient to corroborate important circumstances like motive, preparation, conduct prior to the incident, conduct after the incident, the presence of all the accused and recovery on the basis of accused No.1. There was sufficient material to establish these aspects, but the trial Court erred in granting benefit of doubt to accused Nos.5, 10 and 15. Hence, he prays to set aside the judgment and order of acquittal passed by the trial Court in S.C. Nos.87/2008 and 16/2010 regarding accused Nos.5, 10 and 15.
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ANALYSIS
(a) The Hon’ble Apex Court in para 42(4) and 42(5) of the judgment in Chandrappa and others -vs- State of Karnataka1 , while laying down the general principles regarding powers of the Appellate Court in an appeal against an order of acquittal, held as below:
1 (2007) 4 Supreme Court Cases 415
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“42(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.
42(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 .”
(emphasis supplied)
(b) In the case of Sudershan Kumar -vs- State of Himachal Pradesh2 , while referring to Chandrappa’s case
(supra), the Hon’ble Apex Court at paragraph 31 of its judgment was pleased to hold that, it is the cardinal principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of
2 (2014) 15 Supreme Court Cases 666
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acquittal. The Appellate Court, in such a case, would interfere only for very substantial and compelling reasons.
(c) In the case of Jafarudheen and others -vs- State of Kerala3 at paragraph 25 of its judgment, the Hon’ble Apex Court was pleased to observe as below:
“25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, the appellate Court has to consider whether the trial Court’s view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate Court has to be relatively slow in reversing the order of the trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters.”
(emphasis supplied)
3 (2022) 8 Supreme Court Cases 440
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The above principle was reaffirmed by the Hon’ble
Apex Court in the case of Ravi Sharma -vs- State (Government of NCT of Delhi) and another4 and also in the case of Roopwanti -vs- State of Haryana and others5 .
a. The prosecution in order to prove its case, got examined PW1-Karunakara Poojary, who is an injured eyewitness. In his evidence, he has stated that on 6-1-2004 at about 10:00 p.m., himself and his family members were about to sleep after having their dinner, they heard the sound of throwing stones and soda bottles on the roof of their house. When they came out from the house, they found 20-25 people outside, accused Nos.1 and 2 abused him, insulted him to provoke breach of peace and made an attempt to assault him with talwar on his neck, when he warded his left hand to avert the blow,
4 (2022) 8 Supreme Court Cases 536
5 2023 SCC OnLine SC 179
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that landed on his left arm, causing bleeding injury resulting in cutting of vein on the left shoulder. Accused No.2 assaulted his father-PW2-Thimmappa Poojary with talwar and caused deep injury on his left shoulder and rest of the accused assaulted PW3-Kamala and PW4-Ashoka Poojary with stones and clubs, thereby caused injuries. Further, the crowd set fire to his auto rickshaw and burnt that and because of pelting of stones, the roof tiles were broken. The accused cut his house telephone wire connection and they gave life threat to him and his family members. After the incident, PW13-M. Bhoja shifted the injured in his auto rickshaw to SCS Hospital, Mangaluru. While he was in the hospital, the Police came and recorded his statement as per EX.P1.
As per the evidence of PW1, the motive for commission of offence was that while PW11-Prema and Mohan Moolya (PW9 in S.C. No.87/2008) were returning to their house from the town, accused Nos.1 and 2 quarreled with them. Thereafter, Mohan Moolya along with other youths assaulted accused Nos.1 and 2. Accused Nos.1 and
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2 under the perception that PW1 was accomplice in the said assault, came to the house of PW1 and assaulted PWs.1 to 4. PW1 identified his bloodstained shirt, lungi and bloodstained lungi of PW2-his father at MOs.1 to 3 and also identified the weapons used by accused at MOs.4 to 10. PW1 further stated that accused No.1 assaulted him and accused No.2 assaulted his father with talwar with an intention to kill them, due stones pelting and burning of auto rickshaw, he sustained loss of Rs.15,000/-. He further stated that after discharge from the hospital, the Police came to the spot, the Police shown the accused to him in the Police Station and he identified them.
b. PW2-Thimmappa Poojary is the father of PW1. In his evidence, he has stated that in the incident, accused No.1 assaulted PW1 with talwar and caused bleeding injury on the left arm and accused No.2 assaulted him with talwar and caused injury to his left shoulder. He further stated that in the incident, his wife-PW3-Kamala and his another son-PW4-Ashoka Poojary also sustained injuries as the accused threw stones. He further stated
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that the accused have completely burnt the auto rickshaw of his son-PW1. PW2 also identified MOs.1 to 10, the weapons of offence and also bloodstained clothes.
c. PW3-Kamala is wife of PW2 and mother of PW1. In her evidence, she has stated that on the date of incident at 10:00 p.m., accused Nos.1 and 2 along with other accused came to her house and asked PW1's auto on hire. When PW1 declined as it was night, accused No.1 abused PW1 and intentionally insulted him to provoke his breach of peace and also assaulted PW1 on his left arm with talwar. Hence, PW1 sustained bleeding injuries on his left shoulder. She further stated that accused No.8 assaulted on the left shoulder of her husband, Thimmappa PoojaryPW2 and she also sustained injury on her chest due to stones pelting by other accused and her second son PW4Ashoka Poojary also sustained injury. She has further stated that the accused set fire to the auto rickshaw of PW1 and cut the telephone wire.
d. PW4-Ashoka Poojary is the brother of PW1 and younger son of PW2. He has stated that on 6-1-2004 at
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about 10:00 p.m., they heard noise on the roof, then they came out of the house and saw that 25 persons gathered in front of their house, accused No.1 asked his brother
PW1 to hire his auto. When PW1 refused to go, he intentionally insulted him to provoke breach of peace and assaulted on the left shoulder of PW1, thus he sustained bleeding injury and when himself and his mother went to the rescue of PW1, the accused assaulted him and his mother with stones and clubs. He has further deposed that, accused No.8 assaulted his father PW2 with talwar and hence, he sustained injury on his shoulder. Further, all the accused set fire to the auto rickshaw of PW1, they cut telephone wire and damaged roof tiles. Further, all the accused threatened to take away the life of PW1. PWs.1 and 2 were admitted to Mangaluru Hospital for treatment.
e. PW5-Savitha is the wife of PW1, PW6-Nalinakshi is the younger sister of PW1, PW7-Jayanthi, PW8-Yamuna, PW9-Janardhana Poojary and PW10-Jalajakshi are the neighbours of PW1. These witnesses have been examined by the prosecution as eyewitnesses to the incident and
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they corroborated the oral testimonies of PWs.1 to 4 with
regard to assault made by accused Nos.1 and 2 on PWs.1 and 2.
f. PW11-Prema and Mohan Moolya (PW9 in S.C.
No.87/2008) have categorically stated about the incident and assault made by the accused.
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hence accused No.1 intentionally insulted PW1 to provoke breach of peace, accused Nos.1 and 2 assaulted PW1 with talwar on his left shoulder and caused bleeding injury. Further, accused No.2 assaulted PW2 also on his left shoulder with talwar and caused bleeding injury. In the meanwhile, PWs.3 and 4 tried to pacify the quarrel, however, the other accused present also assaulted them with stones and clubs, hence, they also sustained bleeding injuries.
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with each other. The evidence of PWs.1 to 10 remains unimpeachable and their evidence cannot be discarded. When we analyse the conduct of PWs.1 to 4 and the evidence of PWs.5 to 10, their credibility goes stronger.
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witnesses, when they have specifically stated about accused Nos.1 and 2.
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corroborates the evidence of PWs.1 to 4 as to injury they sustained in the incident. Therefore, there is consistency in the evidence of PWs.1 to 4 and the medical evidencePW23 and their evidence does not suffer from any infirmity. Thus, the prosecution is able to establish that PWs.1 to 4 have sustained injuries as mentioned in Exs.P.11 to 14 and PW1 underwent treatment at Mangaluru Hospital.
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that eyewitness-PW5 had shown the place, where the incident took place and the mahazar was drawn in the presence of panchas and at that time, Ex.P9 sketch was drawn. There is no discrepancy in the testimonies of PWs.5, 15 and Vittala Prabhu. The evidence of PWs.5, 15 and Vittala Prabhu corroborated by the testimonies of injured witnesses. Therefore, the testimonies of PWs.5, 15 and Vittala Prabhu with regard to drawing of spot mahazar as per Ex.P2, sketch as per Ex.P9, and collection of aforesaid articles is believable.
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PW17-Sanjeeva were examined on oath. They have stated that on 15-1-2004, accused No.1 was in the custody of the Police he confessed to produce the weapons used in the commission of offence and his bloodstained clothes. Accordingly, he led to his house, produced two talwarsMOs.4 and 5 and his bloodstained pant and shirt as per MOs.16 and 17, the Police seized the same drawing the seizure mahazar as per Ex.P4. PW17 identified the talwars and clothes seized under Ex.P4, but PW16 did not identify it. From perusal of the testimonies of PWs.16 and 17, it is clear that accused No.1 was in the custody of the Police, he led PWs.16, 17 and the Police to his house, showed two talwars and his bloodstained shirt and pant. It shows that MOs.4, 5, 16 and 17 were recovered at the instance of accused No.1. Therefore, the evidence of PWs.16 and 17
can be considered against accused No.1 with regard to recovery made under Ex.P4.
Ex.P7 which clearly establishes that the clothes of PWs.1 and 2, accused No.1 and talwars were stained with ‘O’
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blood group. The evidence of seizure mahazar witnesses and the evidence of Investigating Officer shows the Police seized bloodstained clothes of PWs.1 and 2, accused No.1 and talwars under Exs.P3 and P4-mahazars. The evidence of PWs.1 to 4 (injured witnesses) and PWs.13, 14, 16 and 17 (seizure mahazar witnesses) and PW22-Investigating Officer clearly establishes that the clothes of PWs.1 and 2 were stained with ‘O’ blood group and the clothes of accused No.1 were stained with ‘O’ blood group and MOs.4 and 5-talwars were also stained with ‘O’ blood group. However, accused No.1 has not explained as to how his clothes, MOs.16 and 17 got bloodstains and that too of 'O' group blood. Non-explanation of accused No.1 regarding bloodstains on MOs.16 and 17 that becomes additional link to connect him to crime.
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thought that PW1 had also involved in the said quarrel. Therefore, accused Nos.1 and 2 came along with other accused to the house of PW1, insulted PW1 and assaulted PWs.1 and 2 on their shoulders and caused bleeding injuries. At that point of time, when PWs.3 and 4 tried to pacify the quarrel, the accused also assaulted them with stones and clubs. Hence, they too, sustained bleeding injuries. Thereafter, PW13-M. Bhoja shifted PWs.1 and 2 to SCS hospital, Mangaluru, for treatment.
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Nos.1 and 2 and in that process, accused Nos.1 and 2 assaulted PWs.1 and 2 with talwars and when PWs.3 and 4 came to pacify the quarrel, they also sustained injuries.
eyewitness, two principle considerations are whether in the circumstance of the case, it is possible to believe their presence at the scene of occurrence. As per the evidence of PWs.1 to 4 and PWs.5 to 10, they were present at the scene of occurrence, PWs.1 to 4 sustained injuries in the hands of accused Nos.1 and 2 with talwars and they were taken to hospital for treatment. The evidence of PW23Doctor corroborates with the oral testimonies of PWs.1 to 4. Therefore, their testimonies will not tend to any improbabilities, and we do not find any ground to doubt or discredit the veracity of their oral testimonies. Therefore, PWs.1 to 4 being injured witnesses and PWs.5 to 10 being eyewitnesses to the incident, their presence at the scene of offence was natural, and with normal human conduct or behavior, and thus, can be acted upon.
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there are major contradictions in the testimonies of PWs.1 to 10. He contended that PWs.5 to 10 are planted eyewitnesses. It is to be noted that when these eyewitnesses and injured witnesses knew the accused prior to the incident and at the time of incident, they saw the accused from close distance with the aid of lights from the house of PW1 when accused Nos.1 and 2 inflicted bleeding injuries. There was no reason to doubt the truth of testimonies of PWs.1 to 4-injured witnesses and PWs.5 to 10-eyewitnesses. Therefore, the question of planting eyewitnesses would not arise. Contrary to the evidence of PWs.1 to 4-injured witnesses and PWs.5 to 10eyewitnesses, the accused have not placed any material to discredit their testimonies.
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names of accused Nos.1 and 2 is mentioned, but the names of accused Nos.3 to 16 are not mentioned, but registering authority has stated that other 20 to 25 muslim youths, residents of Panjalu, Neerbail and Kukkaje are also involved in the incident.
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of Police. In the evidence of these material witnesses, they are not very certain about the presence of accused Nos.3 to 16 at the time of alleged incident, but they have generally stated that accused Nos.3 to 16 were also present.
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against them by invoking the theory of being members of unlawful assembly and sharing common object of accused Nos.1 and 2.
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conviction of an accused under Section 149 of IPC. In
order to attract Section 149 of IPC, the following three
essentials have to be satisfied:
(i ) there must be unlawful assembly;
(ii) commission of offence may be by any member of unlawful assembly;
(iii) such offence must have been committed in prosecution of the common object of the assembly or must be such as a member of the assembly knew to be likely to be committed.
Though this provision deals with the concept of constructive liability, however, the same must not be so stretched as to lead to the false implication of an innocent person.
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Therefore, the charges against accused Nos.3 to 16 are not proved.
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O R D E R
dismissed ;
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iii. Accused No.1 is entitled to the benefit of set off as contemplated under Section 428 of Cr.P.C. Trial Court is directed to secure accused No.1 to
serve remaining part of the sentence.
III. Criminal Appeal No.1299/2012 is allowed . Accused No.9 is acquitted of the charges leveled against him. He shall be set at liberty forthwith, if his detention is not required in any other case;
Sd/JUDGE
Sd/JUDGE
KVK
3 issues framed by the court
Whether the appellate court should disturb the trial Court's acquittal of accused Nos.5, 10 and 15 in the State's appeal against acquittal.
Whether the convictions of accused Nos.1 to 16 under Sections 143, 147, 148 read with Section 149 IPC were sustainable given contradictions and omnibus allegations.
Whether accused No.1's conviction under Sections 326 and 324 IPC was proved beyond reasonable doubt.
Colour shows how this judgement treated each authority
Chandrappa and others vs State of KarnatakaRelied on¶11
(2007) 4 Supreme Court Cases 415
Sudershan Kumar vs State of Himachal PradeshRelied on¶11
(2014) 15 Supreme Court Cases 666
Jafarudheen and others vs State of KeralaRelied on¶11
(2022) 8 Supreme Court Cases 440
Ravi Sharma vs State (Government of NCT of Delhi) and anotherReferred¶11
(2022) 8 Supreme Court Cases 536
Roopwanti vs State of Haryana and othersReferred¶11
2023 SCC OnLine SC 179 · Who else cites this
4 provisions across 2 enactments
The State of Karnataka through Police Sub-Inspector Bantwal Rural Police Station
Asif @ Asif Ahmed
Mohammed Samiulla
Ibrahim
Abbu @ Abbubackar and others (accused Nos.1,3,4,7,8,11,13,14,16)
Abdul Lathief
K.S. Mudagal
Venkatesh Naik T
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
