Sri Kantharaju Vs State by Kyathasandra Police Station

THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE DATED 20.04.2013 PASSED BY THE PRL. DIST. & S.J., TUMKUR IN S.C.NO.233/2012 - CONVICTING THE APPELLANTS/

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2 - NC: 2025:KHC:44895 CRL.A No. 518 of 2013

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HC-KAR

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ACCUSED FOR THE OFFENCE P/U/S 435 AND 504 OF IPC AND ETC.

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THIS APPEAL, COMING ON FOR ARGUMENTS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE G BASAVARAJA

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ORAL JUDGMENT

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The appellants have preferred this appeal against the judgment of conviction and order on sentence passed by the Principal District and Sessions Judge, Tumkur in SC No.233/2012 dated 20.04.2013.

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The parties are referred to as per their rankings before the trial Court.

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The brief facts leading to filing of this appeal is

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that the Sub-Inspector of Police, Kyathasandra Police Station, submitted the charge sheet against the accused for commission of offence punishable under Sections 307, 435, 504 and 34 IPC. It is alleged by the prosecution that on 30.11.2011 at about 07.00 a.m. near the petty shop of CW1-Kamalamma situated in Vittaravutanahalli village,

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3 - NC: 2025:KHC:44895 CRL.A No. 518 of 2013

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HC-KAR

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Ordigere Hobli, the accused No.3 Parvathamma, on account of previous ill-will, in furtherance of their common object, intentionally insulted CW1-Kamalamma by using filthy language and thereby gave provocation to her, intending that such provocation would cause PW1 to break public peace. Further it is alleged that accused having common intention, accused No.3 shouted to set fire to CW1 and also to her petty shop. The accused No. 2 Lakshmidevi poured kerosene to the Oppara in front of the petty shop and accused No.1 Kantharaju set fire with intent to cause damage and caused damage to the Oppara and thereby caused loss to an extent of Rs.1000/- to CW.1. Further it is alleged that the accused Nos. 1 to 3 with their common object to cause death of CW1, the accused No.3 asked to set fire to CW1, the accused No. 2 poured kerosene and accused No.1 tried to set fire and by that act accused Nos. 1 to 3 had caused the death to CW1.

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They would have been guilty of murder. Thereby committed an offence punishable under Sections 504, 435,

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NC: 2025:KHC:44895 CRL.A No. 518 of 2013

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HC-KAR

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307 r/w 34 IPC. After filing the charge sheet, the case was registered in CC No. 1035/2012. Thereafter, case was committed to the Court of Sessions and case was registered in SC No.233/2012. The accused were enlarged on bail.

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On hearing the charges, the trial Court has framed the charges for commission of offences punishable under Sections 435, 504 and 307 r/w Section 34 IPC. Same was read over and explained to the accused. Having understood the same, accused pleaded not guilty and claimed to be tried.

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To prove the guilt of the accused, prosecution has examined six witnesses as PW1 to PW6 and six documents were marked as Ex.P1 to Ex.P6. Eight material objects were marked as MO No.1 to MO.8. On closure of prosecution evidence, statement under Section 313 of Cr.PC was recorded. Accused have totally denied evidence

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HC-KAR

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of prosecution witnesses. But they have not chosen to led

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any evidence on their behalf.

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Having heard the arguments on both sides, trial court has acquitted the accused for the offence under Section 307 r/w 34 IPC. However, convicted the accused for the offence under Sections 435, 504 r/w 34 IPC and sentenced appellants to undergo simple imprisonment for a period of 3 years and to pay fine of Rs.1,000 each and in default of payment of fine, the accused shall undergo simple imprisonment for one month for the offence punishable under Section 435 r/w Section 34 of IPC. They shall further undergo for simple imprisonment for one year and to pay fine of Rs.500/- each in default of payment of fine, they shall undergo simple imprisonment for 15 days for the offence punishable under Section 504 r/w Section 34 of IPC. Being aggrieved by the judgment of conviction and order on sentence, the appellants have preferred this appeal.

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6 - NC: 2025:KHC:44895 CRL.A No. 518 of 2013

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HC-KAR

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Sri. Manjunatha H.V learned counsel for the

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appellants would submit that trial Court has not properly appreciated the evidence on record in accordance with law and on facts. According to the case of the prosecution PW2

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and PW3 are the eye witnesses. Both have turned hostile and not supported the case of the prosecution. PW4 is the mahazar witness. PW5 is the IO. Only on the basis of sole interested testimony of PW1, trial Court has convicted the accused, which is not sustainable under law. The PW1 was having enmity towards the accused for the reason that the accused No.1 being the husband of the PW1 has deserted her as she has demanded for partition in the property. The prosecution has not produced any document to show that the petty shop belongs to PW1. IO has not explained anything as to non production of the relevant documents in this regard. Absolutely, there is no cogent,

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corroborative, clinching and trustworthy evidence to convict the accused. However, the trial Court has

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NC: 2025:KHC:44895 CRL.A No. 518 of 2013

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HC-KAR

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convicted the accused which is not sustainable under law

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and on all these grounds sought for allowing of the appeal.

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Sri. B. Lakshman, learned HCGP would submit

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that the trial Court has properly appreciated the evidence on record in accordance with law and facts. Absolutely there are no grounds to interfere with the impugned judgment of conviction and order on sentence passed by the trial Court and on all these grounds sought for dismissal of this appeal.

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9. I have examined the materials placed before

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this Court and also heard the arguments on both sides.

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The following points would arise for my

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consideration.

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"1. Whether the Appellants have made out a grounds to interfere with the judgment of conviction and order on sentence passed by the trial Court.

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2. What order?"

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11. My answer to the above points are as under;

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Point No.1 in the affirmative.

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NC: 2025:KHC:44895 CRL.A No. 518 of 2013

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HC-KAR

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Point No.2 is as per final order.

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I have examined the materials placed before

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this Court. The genesis of the case is arise out of the complaint filed by the PW1-Kamalamma, wife of

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Kantharaja. The contents of the complaint reads as under;

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"UÉ,

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¥ÉÆ°Ã¸ï ¸À¨ï E£ïì¥ÉPÀÖgï PÁåvÀìAzÀæ ¥ÉÆ°Ã¸ï oÁuÉ PÁåvÀìAzÀæ.

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ªÀiÁ£ÀågÉÃ,

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PÀªÀÄ®ªÀÄä w/o PÁAvÀgÁd, 25 ªÀµÀð, MPÀÌ°UÀgÀ d£ÁAUÀ, «lÖgÁªÀÅvÀ£ÀºÀ½î ªÁ¹, HrðUÉgÉ ºÉÆÃ§½, vÀÄªÀÄPÀÆgÀÄ vÁ®ÆèPÀÄ DzÀ £Á£ÀÄ §gÉ¹PÉÆlÖ zÀÆgÀÄ.

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£Á£ÀÄ ªÉÄÃ¯É ¤ÃrzÀ «¼Á¸ÀzÀ ªÁ¹AiÀiÁVzÀÄÝ, F ªÀÄÆ®PÀ vÀªÀÄä°è ªÀÄ£À« ªÀiÁrPÉÆ¼ÀÄîªÀÅzÉÃ£ÉAzÀgÉ FUÉÎ 2003£ÉÃ E¸À«AiÀÄ°è vÀÄªÀÄPÀÆgÀÄ vÁ®ÆèPÀÄ, HrðUÉgÉ ºÉÆÃ§½, «lÖgÁªÀÅvÀ£ÀºÀ½î UÁæªÀÄzÀ ¯ÉÃ|| £ÁUÀgÁdÄgÀªÀgÀ ªÀÄUÀ PÁAvÀgÁd JA§ÄªÀªÀ£À£ÀÄß JgÀqÀ£ÉÃ ªÀÄzÀÄªÉAiÀiÁVzÀÄÝ, FUÉÎ ªÀÄÆgÀÄ ªÀµÀðUÀ½AzÀ PÉÊ PÁ®ÄUÀ¼ÀÄ ¸Áé¢Ã£À E®èzÀAvÁV £À£Àß UÀAqÀ £À£ÀUÉ zÉÊ»PÀªÁV ªÀÄvÀÄÛ ªÀiÁ£À¹PÀªÁV »A¸É ¤Ãr ªÀÄ£É¬ÄAzÀ DZÉUÉ PÀ¼ÀÄ»¢zÀÄ, 32 ªÀµÀðUÀ½AzÀ «lÖgÁªÀÅvÀ£ÀºÀ½î PÁæ¸ï£À°è ¥ÀnÖUÉ CAUÀrAiÀÄ°è ªÁ¸ÀªÁVzÀÄÝ, ¢£ÁAPÀ 08.11.2011 gÀAzÀÄ £À£Àß UÀAqÀ £À£Àß ¥ÀnÖUÉ CAUÀr §½ MAzÀÄ PÉlÖ PÉlÖ ªÀiÁvÀÄUÀ½AzÀ ¨ÉÊzÀÄ zÉÊ»PÀªÁV ªÀÄvÀÄÛ ªÀiÁ£À¹PÀªÁV »A¸É ¤Ãr ¤Ã£ÀÄ HgÀÄ ©lÄÖ ºÉÆÃUÀ¢zÀÝgÉ PÉÆ¯É ªÀÄqÀÄªÀÅzÁV ¥Áæt¨ÉzÀjPÉ ºÁQzÀÄÝ, CzÉÃ ¢£À PÁåvÀìAzÀæ ¥ÉÆ°Ã¸ï oÁuÉUÉ MAzÀÄ zÀÆgÀÄ ¤ÃrzÀÄÝ, £À£Àß UÀAqÀ£À ªÉÄÃ¯É PÉÃ¸ÀÄ zÁR¯ÁVgÀÄvÉÛ. EzÉÃ zÉéÃµÀªÀ£ÀÄß ElÄÖPÉÆAqÀÄ ¢£ÁAPÀ 30.11.2011 gÀAzÀÄ ¨É½UÉÎ 7 UÀAmÉ ¸ÀªÀÄAiÀÄzÀ°è £Á£ÀÄ ªÀÄvÀÄÛ £À£Àß ªÀÄUÀ 7 ªÀµÀðzÀ ¸ÀÄgÉÃ±ï ¥ÀnÖUÉ CAUÀrAiÀÄ°èzÁÝUÀ £À£Àß UÀAqÀ PÁAvÀgÁd £À£Àß UÀAqÀ£À »jAiÀÄ ºÉAqÀw ®QëöäzÉÃ« ºÁUÀÆ £À£Àß CvÉÛ ¥ÁªÀðvÀªÀÄägÀªÀgÀÄ ¸ÉÃjPÉÆAqÀÄ J®ègÀÆ £À£Àß£ÀÄß ¸ÀÆ¼ÉªÀÄÄAqÉ ¨ÉÆÃ½ªÀÄÄAqÉ ¤Ã£ÀÄ £ÀªÀÄä HgÀÄ ©lÄÖ ºÉÆÃUÀÄ JAvÀ ºÉÃ½zÀgÀÆ PÉÃ¼ÀzÉÃ £ÀªÀÄäUÀ¼À ªÉÄÃ¯É ¥ÉÆ°Ã¸ïoÁuÉAiÀÄ°è PÉÃ¸ÀÄ ºÁQ¹ ªÀÄvÀÄÛ d«ÄÃ£ÀÄ ªÀÄ£É ¨sÁUÀ PÉÆqÀÄ CAvÀ PÉÃ¼ÀÄwÛÃAiÀÄAvÀ CªÁåZÀå ±À§ÝUÀ½AzÀ ¨ÉÊzÀgÀÄ £À£Àß UÀAqÀ ¤Ã£ÀÄ ºÁQgÀÄªÀ PÉÃ¸À£ÀÄß ªÁ¥Á¸ï vÉUÉzÀÄPÉÆAqÀÄ HgÀÄ ©lÄÖ ºÉÆÃUÀÄ CAvÀ UÀ¯ÁmÉ ªÀiÁrzÀ. £Á£ÀÄ ºÉÆÃUÀÄªÀÅ¢®è JAvÀ ºÉÃ½zÀÝPÉÌ £À£Àß CvÉÛ ¥ÁªÀðw K£ÀÄ £ÉÆÃqÀÄwÛgÉÆÃ ¹ÃªÉÄJuÉÚAiÀÄ£ÀÄß ºÁQ CªÀ¼À CAUÀrAiÀÄ£ÀÄß ªÀÄvÀÄÛ CªÀ¼À£ÀÄß ¸ÀÄlÄÖ ºÁQgÉÆÃ CAvÀ ºÉÃ½ DUÀ £À£Àß UÀAqÀ£À »jAiÀÄ ºÉAqÀw ®QëöäzÉÃ« vÀ£Àß PÉÊAiÀÄ°èzÀÝ ¹ÃªÉÄJuÉÚ PÁå£ï£À°èzÀÝ ¹ÃªÉÄJuÉÚAiÀÄ£ÀÄß £À£Àß ¥ÉnÖUÉ CAUÀr ªÀÄÄA¨sÁUÀzÀ ZÀ¥ÀàgÀPÉÌ ¹ÃªÉÄJuÉÚAiÀÄ£ÀÄß JgÀazÀ¼ÀÄ DUÀ £À£Àß UÀAqÀ ZÀ¥ÀàgÀPÉÌ ¨ÉAQ ElÖ£ÀÄ £Á£ÀÄ PÀÆVPÉÆAqÁUÀ £À£Àß CvÉÛ ªÀÄvÀÄÛ £À£Àß UÀAqÀ £À£Àß£ÀÄß PÉÆ¯É ªÀiÁqÀÄªÀ GzÉÝÃ±À¢AzÀ £À£Àß£ÀÄß »rzÀÄPÉÆAqÀÄ EªÀ¼À£ÀÄß E°èAiÉÄÃ ¸ÀÄlÄÖ

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9 - NC: 2025:KHC:44895 CRL.A No. 518 of 2013

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HC-KAR

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ºÁPÉÆÃt JAvÀ ºÉÃ½ ®QëöäzÉÃ« £À£Àß ªÉÄÊªÉÄÃ¯É ¹ÃªÉÄJuÉÚ ¸ÀÄjzÀ¼ÀÄ £À£Àß UÀAqÀ £À£ÀUÉ ¨ÉAQ ºÀZÀÑ®Ä §AzÁUÀ £Á£ÀÄ PÀÆVPÉÆAqÉ DUÀ £ÀªÀÄä UÁæªÀÄzÀ gÁªÀÄtÚ£À ºÉAqÀw C£ÀÄ¸ÀÆAiÀÄªÀÄä ªÀÄvÀÄÛ gÁªÀÄzÁ¸ÀAiÀÄågÀªÀgÀÄ §AzÀÄ £À£Àß£ÀÄß ©r¹PÉÆAqÀÄ ®QëöäzÉÃ«AiÀÄ PÉÊAiÀÄ°èzÀÝ ¹ÃªÉÄJuÉÚ qÀ§âªÀ£ÀÄß QvÀÄÛPÉÆAqÀÄ §Ä¢Ý ºÉÃ½ PÀ¼ÀÄ»¹ GjAiÀÄÄwÛzÀÝ ZÀ¥ÀàgÀzÀ ¨ÉAQAiÀÄ£ÀÄß ºÁj¹zÀgÀÄ. EzÀjAzÀ CAUÀr ªÀÄÄA¨sÁUÀzÀ ZÀ¥ÀàgÀ ¸ÀÄlÄÖ CAUÀr ªÀÄÄA¨sÁzÀ ZÀ¥ÀàgÀ ¸ÀÄnÖgÀÄvÉÛ. £À£Àß ¥ÉnÖUÉ CAUÀr ªÀÄÄA¨sÁUÀzÀ ZÀ¥ÀàgÀªÀ£ÀÄß ¸ÀÄlÄÖ ºÁQ £À£ÀUÉ CªÁåZÀå ±À§ÝUÀ½AzÀ ¨ÉÊzÀÄ £À£Àß ªÉÄÊ ªÉÄÃ¯É ¹ÃªÉÄJuÉÚ ¸ÀÄjzÀÄ PÉÆ¯É ªÀiÁqÀ®Ä ¥ÀæAiÀÄvÀß¥ÀlÄÖ ªÉÄÃ®ÌAqÀ ªÀÄÆgÀÄ d£ÀUÀ¼À ªÉÄÃ¯É PÁ£ÀÆ£ÀÄ jÃvÀå PÀæªÀÄ vÉUÉzÀÄPÉÆ¼Àî¨ÉÃPÀAvÀ vÀªÀÄä°è PÉÃ½PÉÆ¼ÀÄîvÉÛÃ£É."

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PW1 has reiterated averments made in the

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complaint in her deposition and has also deposed as to the

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mahazar conducted by the police as per Ex.P2.

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PW2 Ramdasappa and PW3 Anusuyamma said to be the eyewitness. They have not supported the case of the prosecution. Both witnesses were treated as hostile witnesses. In their crossexamination, they have categorically denied the statement recorded by the IO under Section 161 of Cr.PC which are marked as Ex.P3 and Ex.P4.

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PW4 Nagaraju has deposed regarding the

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mahazar conducted by the police as per Ex.P2. This witness is also not fully supported to the case of the prosecution and he was treated as partly hostile witness.

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NC: 2025:KHC:44895 CRL.A No. 518 of 2013

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HC-KAR

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PW5 and PW6 have deposed in their evidence

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as to their respective Investigation.

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From careful examination of the entire evidence placed before this Court it is crystal clear that Investigating Officer has not produced any documents to show that the petty shop belongs to PW1. The Investigating Officer has not collected any materials to show that this petty shop belongs to PW1. The I.O has not explained anything as to non-production of said material piece of evidence before the Court. Admittedly, the complainant -PW1 is the second wife of the accused No. 1. The averments of the complaint itself reveals that the accused have picked up a quarrel with her stating that she being the second wife of accused No.1 demanding partition

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of the property before the Police. This averments made in the complaint itself reveals that there is an enmity between the complainant and the accused regarding the

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NC: 2025:KHC:44895 CRL.A No. 518 of 2013

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HC-KAR

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property belongs to accused No.1. When there is enmity between the complainant and the accused, it is quite common to depose against the accused. This interested testimony of PW1 has not been corroborated with the independent witnesses. Though the I.O has cited the independent witnesses as eyewitness both have not supported to the case of the prosecution. Even during the course of cross-examination by the prosecution with the permission of the court, the prosecution has failed to elicit any favourable answers from them to substantiate the case of the prosecution. Viewed from any angle, I do not find any cogent, corroborative, clinching, trustworthy evidence before this Court to convict the accused for the alleged commission of offences.

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The trial Court has not properly appreciated the evidence on record in accordance with law and facts. For the aforesaid reasons, I am of the considered opinion that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt. Hence, I answered the point

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NC: 2025:KHC:44895 CRL.A No. 518 of 2013

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HC-KAR

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No.1 in the affirmative. Point number 2, for the aforesaid

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reasons and discussions, I proceed to pass the following;

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ORDER

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i. Appeal is allowed.

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ii. The judgment of conviction and order on sentence passed by the Principal District and Sessions Judge, Tumkur in SC No.233/2012 dated 20.04.2013 is set aside.

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iii. Accused/appellants are acquitted for the offence punishable under Sections 435, 504 r/w 34 IPC.

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iv. The trial Court is directed to refund the fine amount if any deposited by the accused.

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v. Send the copy of this judgment along with the TCR to the trial court.

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Sd/(G BASAVARAJA) JUDGE

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RU

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List No.: 1 Sl No.: 31

Sri Kantharaju v. State by Kyathasandra Police Station

Case brief

What is this about?

What did the court decide?

Sri Kantharaju v. State by Kyathasandra Police Station

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

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