IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

DATED THIS THE 17TH 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. 100178 OF 2017

BETWEEN:

STATE OF KARNATAKA BY THE DEPUTY SUPERINTENDENT OF POLICE, BALLARI RURAL SUB-DIVISION, BALLARI, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD BENCH.

…APPELLANT.

(BY SRI V.M.BANAKAR, ADDL SPP.)

AND:

• 1. HOSAHALLI HUSSAIN S/O LATE TIPPAIAH, AGE: 30 YEARS, OCC: AGRICULTURIST, R/O: KARIGANUR VILLAGE, TALUK: HOSAPETE, DIST: BALLARI.

• Digitally signed by ANNAPURNA CHINNAPPA DANDAGAL Location: HIGHCOURT OF KARNATAKA-DHARWAD BENCH Date: 2023.03.31 13:34:36 +0530

• 2. KANCHURU GOPALA S/O KANCHURU THIPPAIAH, AGE: 26 YEARS, OCC: AGRICULTURIST, R/O: KARIGANUR VILLAGE, TALUK: HOSAPETE, DIST: BALLARI.
• 3. HOSAHALLI MANJUNATHA S/O HOSAHALLI NAGAPPA, AGE: 27 YEARS, OCC: COOLIE,

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R/O: KARIGANUR VILLAGE, TALUK: HOSAPETE, DIST: BALLARI.

• 4. HOSAHALLI SHEKHARAJA S/O HOSAHALLI HAMPAIAH, AGE: 32 YEARS, OCC: AGRICULTURIST, R/O: KARIGANUR VILLAGE, TALUK: HOSAPETE, DIST: BALLARI.
• 5. HOSAHALLI NAGAPPA S/O HOSAHALLI PANDURANGAPPA, AGE: 25 YEARS, OCC: COOLIE, R/O: KARIGANUR VILLAGE, TALUK: HOSAPETE, DIST: BALLARI.
• 6. CHALAVADI CHIDANANDAPPA S/O SIDDALINGAPPA AGE. 35 YEARS, OCC. AGRICULTURE, R/O KURIGANURU VILLAGE, TQ.SHIRAGUPPA, DIST.BALLARI.

…RESPONDENTS

(BY SRI GODE NAGARAJ, ADVOCATE.)

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 TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 01.12.2016, PASSED BY THE I ADDL. DISTRICT AND SESSIONS JUDGE, BALLARI, IN SPECIAL CASE NO.30 OF 2015 AND TO CONVICT AND SENTENCE THE RESPONDENTS/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 143, 147, 148, 436, 323, 324, 326, 504, 506 READ WITH SECTION 149 OF IPC AND SECTIONS 3(1)(X), 3(2)(V) OF SC/ST (POA) ACT, 1989, ETC.,.

THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, SHRI T.G.SHIVASHANKARE GOWDA, J, DELIVERED THE FOLLOWING:

JUDGMENT

The State has challenged the judgment dated

01.12.2016, passed in Special Case No.30/2015, by the

Special Court and the I Addl. District and Sessions Judge, Ballari (for short 'the Trial Court'), acquitting accused Nos. 1 to 5 of the offences punishable under sections 143, 147, 148, 323, 324, 326, 504, 506, 436 of IPC and under section 3(1)(x), 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

2. For the sake of convenience, the parties shall be referred to as per their status in the Trial Court.

3. The case pleaded by the prosecution is that 03.11.2014 was Moharam Festival day at Kariganur village of Siraguppa taluk in Ballari district within the limits of Sirigere Police Station; on that day at midnight 12.00 O'clock, in Moharam procession, PW.1 Chalawadi Chidanand, PW.3 K.Basavaraj and PW.4 Chalawadi Nagappa were beating the drums and they were also dancing together; the accused snatched the drum from PW.1, picked up quarrel against him and it was pacified by the persons who were in the procession. Thereafter on 04.11.2014 at early morning at 04.00 O'clock when

PWs.1, 3 and 4 were returning from procession, accused have formed an unlawful assembly with a common object of committing assault against them and in furtherance they committed rioting holding stones and clubs in their hands; in furtherance they have pushed them, pulled them and accused Nos.2 to 5 by means of their hands assaulted on the body of PW.1; accused No.1 by means of club assaulted on the left side head of PW.1; at that time when PW.6 Siddalingappa came to pacify the quarrel, accused No.2 pulled him to the ground, thrown a size stone on his leg and fractured his leg and accused Nos.1 to 5 abused PW.1 and others in the name of their caste, intentionally insulted them in public road, committed criminal intimidation; and thereafter in furtherance they lit fire to the hut belonging to PW.1. In this regard PW.1 and PW.6 were admitted to hospital and on the basis of Ex.P.1 complaint, law was set into motion on the evening of 04.11.2014 in Crime No.132/2014. PW.8-N.Rudramuni, the Dy.S.P. has investigated the matter and filed the charge sheet.

4. On receipt of the final report, a case has been registered in Special Case No.30/2015 by the Trial Court. Before the Trial Court, accused pleaded not guilty of the charges and the learned Special Judge after completion of the trial, questioned the accused under section 313 of Cr.P.C. and after considering the arguments addressed and the material placed before him, passed the impugned judgment of acquittal. Aggrieved by the same, the State has come before this Court on various grounds.

5. We have heard the arguments of Sri V.M.Banakar, learned Addl. SPP, appearing for the appellant/State and Sri Gode Nagaraj, learned counsel appearing for respondents/accused. We have perused the impugned judgment, evidence led by the prosecution and the other relevant papers paced before us.

6. The trial Court has assigned reasons that the prosecution witnesses are unable to say who has assaulted the complainant. People from all the community were present in the Moharam procession; all the people were

holding sticks in their hands; all of them were drunk and dancing to the music and each of them were in a mood of falling on each other. Under such circumstances PWs.1 and 6 who have also gathered there, due to pull and push they might have fallen down and sustained injuries. There is no consistent evidence on the part of prosecution to establish that accused have committed the alleged offences and for this reason the trial Court has not accepted the prosecution evidence and recorded the acquittal.

7. It has been argued by the learned Addl. SPP that in spite of the prosecution examining the Investigating Officer, who explained how the incident took place, PW.5-Dr.Iranna, the Medical Officer, who treated the injured, PW.3 and PW.4 the eye witnesses to the incident, in spite of their quality evidence, the trial Court has committed error in not properly appreciating the evidence placed before it while recording the acquittal. Hence he sought for interference and reversal the

judgment and sought for recording conviction against the accused.

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8. On the contrary, learned counsel for respondents/ accused Sri Gode Nagaraj, has vehemently contended that the entire prosecution case if appreciated together, at the midnight, alleged incident has taken place in a Moharam Festival procession where all the folks of people of Kariganur village have gathered holding clubs in their hands and they were dancing to the tune of music. Almost all of them were drunk. They were in a position of falling one against the other. During such circumstances PW.6 being aged 80 years, he don't have proper eye sight, he had gone to such a huge gathering with a drunken crowd, might have fallen on the ground and on account age, in the mob PW.1 might have sustained injuries. But for the reason of ill-will in the village, such injury being taken advantage and for the sake of Government money, a false case has been registered, accused were made to face the trial.

9. Learned counsel also taken us to the admissions made by the prosecution material witnesses in the cross-examination that it was dark, midnight, huge gathering of 300-400 persons with influence of alcohol, dancing, one is falling against the other on account of celebration of Moharam Festival. Learned counsel submitted that trial Court has rightly appreciated the prosecution evidence and also considered the admissions elicited in their cross-examination and there is no evidence pointed out from the Medical Officer that M.Os.1 and 2 stick and stone have not at all shown for examination and opinion. It is also brought to our notice that PW.6 has fallen on the ground because of his age and therefore, the Trial Court is right in recording acquittal and supported the impugned judgment.

10. Having heard the submissions of both the sides, we have given our anxious consideration to the evidence of each of the prosecution witnesses. The prosecution examined PW.1-Chidananda, PW.6-Siddalingappa, who are

the injured witnesses; PW.3-K.Basavaraj and PW.4-Chalawadi Nagappa are the eye witnesses; PW.5 Dr.Iranna is the treating doctor of PW.1 and 6 and PW.8-Rudramuni is the Investigating Officer.

11. We have evaluated the evidence of PW.1 and 6. Their evidence clearly point out that there was an incident between them and the accused. They have been abused in the name of their caste. They have been manhandled, insulted, criminally intimidated and particularly accused No.2 Kanchuru Gopala thrown stone on the leg of PW.6 resulting fracture.

12. The testimony of PW.5-Dr.Iranna point out that on 04.11.2014 at about 08.25 a.m. he examined PW.1 and 6, found simple injury on the head of PW.1 and injury on the left ankle of PW.6. On x-ray, he has noticed fracture of head of femur and to this extent he has issued injury certificate as Exs.P.4 and P.5. In the cross-examination he has admitted that if a person in a mob dancing to the music falls down, fracture as sustained by PW.6 is

possible. PW.5 also admits that he has not seen M.Os.1 and 2 nor weapon of offence was shown to him for his opinion whether an assault by means of M.Os.1 and 2 can cause injury suffered by PW.6. The medical evidence is incomplete. Interestingly Exs.P.4 and P.5 are the injury certificates of PW.6 and PW.1, history referred as alleged assault. There is no whisper about the place of incident, time of incident and who are the assailants. So the medical evidence is not sufficient to support the prosecution.

13. We have also evaluated the evidence of PW.3-K.Basavaraj and PW.4-Chalawadi Nagappa, who is none other than the own brother of PW.6. PW.3 has admitted in his evidence that his father was doing sand business in Kariganur village and the fellow villagers have demanded him to pay Rs.100/- per lorry load of sand as royalty to the village. In this regard there was a quarrel between him and accused No.4. He is a person who prosecuted ill-will against accused No.4 comes before the

Court saying that he had seen the entire incident as if he was very well present and in his presence the incident took place between accused and PW.6. It is also elicited in the cross-examination of PWs.3, 4 as well as PWs.1 and 6 that it was Moharam procession consisting of 300-400 people gathering, it was dark, all the gathering people were in the influence of alcohol, they were holding sticks in their hands and due to alcohol influence they were falling against each other and it is suggested that under such circumstances PW.6 might have fallen and because of his age he might have sustained fracture which is corroborated from the admission made by PW.6 himself in the witness box that he was aged 80 years, he had no clear vision and he had fallen in the mob. Here is a person at the age of 80 years comes to such a mob, fell to the ground and might have sustained fracture. But it has taken advantage by PW.3 who prosecuted ill-will against accused No.4. The cross-examination of all these material witnesses did point out that in a mob they were present with alcoholic influence and in push and pull in the dancing

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to the tune of music, they might have sustained some injuries. The evidence of PW.3 is not inspiring much confidence. The evidence of PW.4 being the brother of PW.6 is interested and as PWs.1 and 6 themselves submit the circumstances prevailing at the spot there was all possibility of his fall and sustaining injuries can be inferred.

14. We have perused the impugned judgment. The Trial Court has evaluated the evidence of prosecution and came to the conclusion that the quality of evidence is not inspiring the confidence. In a mob of 300-400 people with alcoholic influence between 12.00 midnight to 04.00 a.m., entire village was enjoying the procession, we do not find any reason as to why an incident of this nature was possible. Hence the trial Court has rightly appreciated the entire evidence carefully, came to the conclusion that it is not inspiring confidence.

15. The trial Court has watched the demnour of the witnesses in the witness box, appreciated the evidence,

recorded its finding and the presumption of innocence was drawn in favour of the accused. In our opinion, the Trial Court has evaluated the evidence in the proper perspective and arrived at a correct conclusion that the prosecution has not satisfactorily established the charges leveled against the respondents. Having regard to the quality of evidence, and also the weight that can be attached to the veracity, we do not find any reason to hold that the Trial Court has committed error or wrong in appreciating the evidence of the prosecution. Hence the impugned judgment does not call for interference.

16. For all the reasons stated above, appeal is devoid of merits. We dismiss the appeal accordingly.

SD JUDGE

SD JUDGE

MRK List No.: 1 Sl No.: 21