Sri. Basavaraju.M Vs Sri. Basavarajappa

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372 OF THE CODE OF CRIMINAL PROCEDURE READ WITH SECTION 413 OF BNSS, PRAYING TO SET ASIDE THE JUDGMENT ORDER DATED 7-2-2025 PASSED BY THE LEARNED I ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHITRADURGA IN SESSIONS CASE NO.95 OF 2018 IN SO FAR AS ACQUITTING THE RESPONDENT NO.1/ACCUSED NO.3 AND CONVICT THE ACCUSED NO.3 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 341, 504, 307, 109 READ WITH 34 OF IPC.

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

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH and

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HON'BLE MR. JUSTICE VENKATESH NAIK T

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE H.P.SANDESH)

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Heard learned counsel for the appellant, learned counsel for respondent No.1, and Sri Vijayakumar Majage, learned State Public Prosecutor-II, appearing for the respondent-State.

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Having perused the grounds urged in the appeal, it is the contention of learned counsel for the appellant that the prosecution had alleged that accused No.3 instigated the other accused to cause injuries to the victim, and that the trial Court committed an error in holding that the offence under Section

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NC: 2026:KHC:1282-DB CRL.A No. 1679 of 2025

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HC-KAR

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109 of the Indian Penal Code, 1860 (for short, 'IPC') against accused No.3 was not proved and acquitted him.

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Learned counsel for the appellant submits that

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when accused No.1 was arrested, he gave a voluntary statement alleging instigation by accused No.3. Learned counsel also invited the attention of this Court to the evidence of PW1, PW2, and PW5, who have deposed with regard to the civil dispute between the parties. It is further submitted that a criminal case is listed with regard to the earlier incident. However, the trial Court committed an error in acquitting accused No.3.

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Per contra , learned counsel appearing for respondent No.1 brought to the notice of this Court that the trial Court, particularly in paragraph No.118 of the judgment, has considered the material available on record with respect to

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the allegation against accused No.3 that he allegedly abetted accused No.1 to commit the offence. The trial Court has observed that there is no material evidence to show that accused No.3 conspired with the other accused, nor is there any evidence to establish that they were in contact with each

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HC-KAR

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other or that accused No.3 abetted accused No.1 to commit the alleged assault on PW1 and PW2. Further, the complaint and other materials on record disclose that accused No.3 was not present at the spot at the time of the assault allegedly committed by accused No.1 by wrongfully restraining and abusing PW1 and PW2. Hence, it was rightly held that the prosecution failed to prove the offence against accused No.3.

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Learned counsel appearing for the State also submits that the material on record discloses the existence of a civil dispute between the parties, namely accused Nos.1 to 3 on one hand and PW1 and PW2 on the other, and on that basis accused No.3 was arraigned invoking Section 109 of the IPC.

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Having heard learned counsel for the appellant and learned counsel appearing for the respondents, it is clear that for invoking Section 109 of the IPC, either the accused must be present at the time of the commission of the offence or there must be evidence of conspiracy. In cases of conspiracy, though direct evidence may not be available, circumstantial evidence must be established. In the present case, admittedly, accused No.3 was not present at the spot. The sole contention of

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HC-KAR

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learned counsel for the appellant is based on the voluntary statement of accused No.1 alleging abetment by accused No.3. Such a voluntary statement cannot be treated as Admissible evidence and can be relied upon only for the purpose of recovery of material objects. Therefore, the contention of learned counsel for the appellant cannot be accepted.

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In order to prove abetment or conspiracy, no material has been placed on record, and none of the witnesses

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have spoken in that regard. Though learned counsel for the appellant brought to the notice of this Court that PW1 and PW2 have deposed about an earlier incident involving accused No.3, and admittedly a separate criminal case is pending in respect of the said earlier incident, merely because there was a prior

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quarrel between PW1, PW2, and accused No.3, the accused cannot be implicated in the present case. The trial Court has rightly taken note of this aspect in paragraph No.118 and has correctly concluded that there is no material to establish abetment and that accused No.3 was not present at the time of the incident.

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NC: 2026:KHC:1282-DB CRL.A No. 1679 of 2025

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HC-KAR

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For the aforesaid reasons, we do not find any

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ground to admit the appeal or to interfere with the order of acquittal passed by the trial Court. There being no cogent material on record against respondent No.1/accused No.3 to

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admit the appeal, the appeal is dismissed .

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Sd/(H.P.SANDESH) JUDGE

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Sd/(VENKATESH NAIK T) JUDGE

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ST,AM List No.: 1 Sl No.: 8

Sri. Basavaraju.M v. Sri. Basavarajappa

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Sri. Basavaraju.M v. Sri. Basavarajappa

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