Sri.Chandrashekar K. Vs the State of Karnataka

THIS CRL.A. IS FILED U/S.413 OF BHARATIYA NAGARIKA SURAKSHA SANHITA, 2023 PRAYING TO SET ASIDE THE JUDGMENT/ORDER OF ACQUITTAL DATED 02.05.2025 MADE IN S.C.NO.1159/2015 ACQUITTING THE ACCUSED PERSON 1 AND 2 FOR THE OFFENCE PUNISHABLE UNDER SECTION 307 R/W SEC.34 OF IPC AND ETC.

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

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH and HON'BLE MR. JUSTICE VENKATESH NAIK T

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HC-KAR

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ORAL JUDGMENT

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

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This appeal is filed challenging the judgment of acquittal dated 02.05.2025 passed in S.C.No.1159/2015 for the offence punishable under Section 307 read with Section 34 of IPC by the LXVII additional City Civil and Sessions Judge, Bengaluru City.

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This appeal is listed for admission. Heard the

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learned counsel appearing for the respective parties.

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The factual matrix of the case of the prosecution is that on 19.06.2014 at about 11.10 a.m. in R.S.No.11 of Rayasandra village within the limits of Parappana Agrahara police station, Bengaluru, with common intention to commit the murder of CW1, accused No.1 assaulted CW1 with wooden club on his head and accused No.2 assaulted CW1 with stone causing injuries knowingfully well that such injuries may likely to cause death of a person and an attempt was made to take away the life of CW1. Hence, invoked the offence punishable under Section 307 read with Section 34 of IPC against the accused persons.

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On securing the presence of the accused persons, the Trial Court framed the charge against them and the accused did not plead guilty and claims for trail. Hence, the prosecution in order to substantiate its case examined 12 witnesses as PW1 to PW12 and got marked the documents at Ex.P1 to P7 and also got marked the material objects at MO1 and MO2.

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The Trial Court having appreciated both oral and documentary evidence placed on record discussed the evidence of each of the witnesses from paragraphs 9 to 20 i.e., both chief evidence as well as evidence in cross-examination. Having considered both oral and documentary evidence placed on record, the Trial Court from paragraph 21 onwards discussed the evidence of PW1 wherein PW1 claims that accused assaulted him and CW2 came to the spot and at that time, accused ran away from the spot. But the evidence of PW1 and his complaint is totally silent about being accompanied him by anyone more so ever by PW2. But PW2 stated that PW1 had called him to his land there he showed him the place where the accused were intending to put up a construction. But he has

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stated that he had witnessed the accused persons assaulting CW1 with a club and a black marble tile. Further, his evidence is silent regarding the presence of CW2 at the spot since PW1 had telephoned PW2 and later on, he came to the spot. PW2 in his cross-examination elicited that PW1 had called to his house. The said evidence contradicts with the prosecution case since that is not to the place of incident but called to his house.

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The Trial Court also taken note of the evidence of PW3 who is also the cousin brother of PW1. He deposed about witnessing the incident and admitting PW1 to the hospital. But in the cross-examination, it is elicited that when the incident occurred, he was in the land and he has also stated that he has tried to pacify them. But the same is silent from his evidence that PW2 was at the spot and even PW1 and PW2 also not stated very presence of PW3.

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The Trial Court also taken note of the evidence of PW7 wherein he deposed that he came to know that accused have assaulted PW1. But he says that he had seen the accused running away from the spot. But his evidence is silent with regard to the presence of PW2 at the spot at the time of the

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incident. PW6 also deposed that he witnessed the assault. But his evidence is silent regarding the presence of CW2 and CW3 at the spot at the time of the incident. All these materials were taken note of by the Trial Court wherein though witnesses depose that they have witnessed the incident, but the very fact that PW1 injured himself says that he called PW2 and not speaks anything about the very presence of PW2, PW3 and PW6 and so also PW7. All these materials are contradictory to each other.

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The Trial Court also taken note of the evidence of the doctor who has been examined before the Court as PW10 and his evidence is also very clear that the injured did not mention the name of the assailant when he came to the Hospital. But he found facial injury and the same is grievous in nature. He did not ask the injured to take the X-ray and his evidence is that injured was inpatient for one day. But the evidence of PW1 and PW2 is contrary to the evidence of the doctor. Apart from that Trial Court also taken note of the fact that the blood stained clothes were not seized and PW12-IO categorically says that he reached the spot at 12.45 p.m. and

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he did not notice any blood stains on the cloth of the injured and even he did not send the club and stone i.e., MO1 and MO2 to FSL and clothes were also not seized. Having taken note of the material available on record particularly, the evidence of PW1 who has given the evidence as against the contents of the complaint and considering very genesis of the crime is concerned, the Trial Court comes to the conclusion that the case was doubtful and thus, acquitted the accused.

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The learned counsel appearing for the appellant would vehemently contend that the Trial Court not properly considered the evidence available on record and magnified the minor contradictions of the witnesses and the same will not go to the very root of the case of the prosecution. Even if no case is made out to Section 307 of IPC, ought to have invoked Section 324 of IPC as there was a grievous injury and injury is also inflicted with the club and also with the stone. The very evidence of the doctor is very clear that on examination, he found lacerated wound over right temporo parietal region and facial abrasion and issued the wound certificate and the same is not properly considered by the Trial Court. The counsel also

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would submit that the evidence of PW6 corroborates with the evidence of PW1 and the same is not considered by the Trial Court.

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The learned SPP-II Mr. Vijayakumar Magage appearing for the State also supports the case of the complainant/appellant and also brought to notice of this Court paragraph 31 of the judgment of the Trial Court wherein PW1 categorically stated that accused persons trying to put a foundation in his land and at that time, this scuffle was taken place and assaulted him.

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The learned counsel appearing for the

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accused/respondent Nos.2 and 3 vehemently contend that Trial Court in detail discussed the material available on record and also counsel would submit that there was a dispute with regard to the land is concerned but no such incident was taken place and the prosecution has not substantiated that PW1 had sustained the injury on account of assault made by accused Nos.1 and 2 and nothing is placed on record in this regard.

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Genesis of the crime is not forthcoming and the same is appreciated by the Trial Court while appreciating the evidence

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in paragraph 25 onwards and having considered the evidence of all the witnesses and the injured even not stated the name of the assailant when he went to the doctor. Hence, no grounds are made on to admit the appeal.

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Having heard the learned counsel appearing for the respective parties and also on perusal of the material on record, it discloses that the case of the prosecution is that on particular date i.e., on 19.06.2014 at 11.10 a.m., the incident was taken place. In order to prove the factum of the incident is concerned, though prosecution relies upon the evidence of PW1 to PW7, in the evidence of PW1 though he claims that PW2 was present, but the material discloses that he was called PW2 to the spot after the incident. The other witnesses i.e., PW3, PW4, PW5 and PW6 support the case of prosecution including PW7 and their evidence is also very clear that they have not witnessed the incident and only comes to the spot after the incident though claimed as witnessed the incident. Apart from that PW1 has not stated anything about the very presence of these witnesses at the time of the incident is concerned and also the contents of the complaint is not corroborated with the

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oral evidence of PW1 hence, PW1 evidence is contradictory with the contents of his complaint.

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No doubt, the Court can rely upon the evidence of PW1 who is a injured witness. But the injured witness evidence should be credible and trustworthy. Here there are material contradictions as against Ex.P1 as well as the oral evidence of PW1. Apart from that evidence of other witnesses is not trustworthy. The doctor who has been examined as PW10 found only injury on the face and also not found any blood stains on the cloth of the injured and even PW12-IO also not found any blood stains and no clothes were also seized. Even though MO1 and MO2 were seized, IO says that it has blood stain, but not sent to the FSL and there is no such report also. When there is no FSL report evidencing the fact that in the club, blood stains of the injured was also found, these factors were taken note of by the Trial Court. The Trial Court particularly discussed the evidence of the doctor in paragraph 18 wherein he categorically deposed that injured even not stated that the accused only inflicted the injury when he brought to the hospital. Paragraph 21 onwards, the Trial Court

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discussed the evidence of PW1, PW2, PW3, PW4 and PW6 and PW7. PW6 evidence also taken note of in paragraph 24 since the counsel appearing for the appellant would vehemently contend that evidence of PW6 was not taken note of.

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The Trial Court taken note of the evidence of PW6 and PW7 who are the independent witnesses, but the Trial Court comes to the conclusion that their evidence is also self contradictory and inconsistent in nature and same cannot be relied upon to come to the conclusion regarding the manner in which the alleged offence had taken place. The Trial Court also taken note that even PW1 not stated that PW6 was also very much present at the time of the incident except calling upon PW2. The Trial Court in detail discussed the evidence available on record from paragraph 25 onwards till paragraph 32 and even taken note of lapses on the part of the Investigating Officer who also not seized the cloth. But his evidence is very clear that no blood stains were found in the cloth. Even the doctor also says that no blood stains were found. Hence, the Court cannot comes to a conclusion that clothes were not seized. When the blood stains were not found in the cloth, the

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question of seizing the same also does not arise. When such being the case, we do not find any ground to admit the appeal.

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The records discloses that the State also not filed

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any appeal against the acquittal order. Only the victim has filed the present appeal. On perusal of the records, it discloses that there was a land dispute between the parties and the same is

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evident even in the defence also. Thus, this Court is of the opinion that only on coming to the conclusion that there was a land dispute and the alleged incident has taken place in this connection cannot be assumed and presumed in the absence of cogent evidence as there is no corroboration.

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