IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH

DATED THIS THE 26TH DAY OF AUGUST 2019

PRESENT

THE HON'BLE MRS. JUSTICE S.SUJATHA

AND

THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO

CRIMINAL APPEAL NO.3501/2012

Between:

The State by Station Bazar Police Station Represented by Addl. State Public Prosecutor Office of the Advocate General Gulbarga.

…Appellant

(By Sri Prakash Yeli, Addl.S.P.P.)

And:

• 1. Nagendrappa S/o Mapanna Dargi, Age: Major Occ: SDC in STO, Gurumittkal, R/o Sundar Nagar, Gulbarga.
• 2. Mallikarjun S/o Havappa Saregaon, Age: Major, Occ: SDC in DTO, Gulbarga, R/o Aland, Now R/o Sundar Nagar, Gulbarga.

…Respondents

(By Sri M.A. Jahagirdar and Sri. G.B. Yadav Advocate for Respondent No.2)

This Criminal Appeal is filed under Section 378(1) & (3) of the Code of Criminal Procedure praying to set aside the order of acquittal dated: 28.03.2011 passed by the I Additional Sessions Judge at Gulbarga in S.C.No. 122/2009, thereby acquitting the respondent-accused of the offences punishable under Section 307 of IPC and convict and sentence the accused/ respondent for the offences under Section 307 of IPC.

This appeal coming on for order, this day, N.K.SUDHEENDRARAO J., delivered the following:

JUDGMENT

The appeal is directed against the judgment and order passed by the 1st Additional Sessions Judge at Gulbarga in S.C.No.122/2009 dated 28.03.2011, wherein the accused Nos.1 and 2 were found not guilty and acquitted.

2. The prosecution has preferred the present appeal claiming that there is evidence to hold the accused persons guilty.

3. The appeal against accused No.1 Nagendrappa is abated by virtue of his death during the pendency of appeal before the Court. A criminal case came to be registered in Crime No.212/2008 against the unknown persons for the

offence punishable under sections 326 and 307 read with section 34 of IPC.

4. The complaint was lodged by one Siddeshwari W/o Hanamanthappa. The substance of the complaint is that on 24.12.2008, the husband of the complainant returned from the office at about 7.00 p.m. The attackers came on a motorcycle and splashed acid on the face of her husband because of which his head, face and chest sustained burn injuries. After splashing the acid, accused persons ran away from the spot. PW.9, KSRP Commandant who is residing by the side of the house of the complainant took him to KBN Hospital. The complainant learnt that somebody in the office of her husband in order to take revenge against her husband have done the deed. It was on this basis, the complaint was registered and the final report came to be filed against the accused Nos.1 and 2 for the said offences.

5. On completion of the trial, the learned trial Court Judge under section 235 (1) of the IPC found accused persons not guilty and they were acquitted of the offence punishable under section 307 of IPC.

6. Learned Additional State Public Prosecutor would submit that injured has spoken regarding the attack made by the accused persons to his wife Siddeshwari who also states about the attack on her husband by the accused persons and that their version is corroborated by the evidence of the Doctor and the Medical Certificate at Exhibits Nos.P4 The injuries suffered were serious and hence injured was referred to higher treatment by the Basaveshwar Hospital to Hyderabad. He would further submit that a serious attempt was made on the victim PW.5.

7. Learned counsel for the respondent/accused submits that very first document complaint itself proves the innocence of the accused. Learned counsel would submit that the statement of PW.4 Siddeshwari, the complainant and PW.5 injured Hanumanthappa who is also the husband of PW.4 do not corroborate with each other. The said evidence bears corroboration from the evidence of none other than PW.5 injured. Thus learned counsel for the accused persons submit that the prosecution has utterly failed to prove the offence

beyond reasonable doubt and that the accused persons are entitled for acquittal.

8. In all the prosecution has examined 16 witnesses PWs.1 to 16 including PW.4 the complainant, PW.5 Hanamanthappa, PW.3, Dr.Gayatri, PW.15 Dr.Ramanandgiri, and Exhibits P1 to P20 are marked. MOs.1 to 3 were also marked on behalf of the prosecution.

9. Insofar as the accused persons are concerned, oral evidence of DWs.1 to 3 were examined and got marked 3 documents at Ex.D.1 to D.3.

10. The material witnesses for the prosecution are PW.4 and PW.5. It is necessary to mention that Ex.P.5 is the complaint which is recorded in the form of statement of Siddeshwari W/o Hanamanthappa resident of Aiwan-E-Shahi, Kalaburagi on 24.12.2008.

11. According to PW.4 complainant on 24.12.2008 at about 10.00 a.m. her husband went to the office. He was working as a Deputy Director at District Treasury Office, Kalaburagi. He returned at about 7.00 p.m. and when he came

near his house, she heard a screaming voice and accordingly she went outside the house and found that her husband had sustained some burn injuries on the face, head and chest portion of her husband due to splashing of acid, because of which Hanamanthappa sustained injuries and also peeling of skin of face, head and chest. She was supported by neighbors PW.9 M.A.Rahim who is Commandant in KSRP and others in taking him to KBN Hospital and then to Basaveshwar Hospital. Later her husband was shifted to Hyderabad for better treatment. The complainant claimed that somebody enemically dispose against her husband have attacked with acid. She further stated that her husband is not in a position to speak and she further stated about the injuries. On the basis of complaint a case was registered in crime No.122/2008.

12. Insofar as PW.4 Siddeshwari complainant is concerned, the substance of her evidence is, she reiterated the version spoken by her in the complaint. She tells about taking her husband to Basveshwar Hospital and thereafter to Hyderabad Hospital. She tells that she has lodged the complaint over the attack of acid on her husband. She tells

about the vehicle used for committing the offence was TVS Victor Motorcycle bearing registration No.KA-32/R-6692. She was cross-examined at length. It is also elicited that her husband was not in a position to speak as he was unconscious and her husband has told about the incident to the doctor. It is elicited from her evidence regarding visit of police in the hospital and she was not allowed to enter into the burns ward. It is also elicited from her that her husband regained normalcy on 23.01.2009 and he was enquired by the police on the same day.

13. Her husband told the complainant at Hyderabad about the teasing and annoyance created by the officials at the office and that the accused persons also were causing annoyance to her husband. It is also elicited that accused No.1 had not visited the house of the complainant on earlier occasions. According to oral evidence of the complainant the accused persons have not entered the house of the complainant at the time of the incident. This witness had no reason to remember and identify the accused.

14. PW.5 Hanumanthappa reiterated regarding attack made on him. Because of pouring of acid he sustained pain due to injuries on his head, chest and face. PW.9, M.A.Rahim, Commandant KSRP helped the complainant to take the injured Hanumanthappa to KBN Hospital and then to Basaveshwar Hospital. By that time according to him, the injured had entered semiconscious stage and he does not know what happened next on that particular night. He has underwent treatment at Hyderabad hospital from 25.12.2008 to 07.02.2009. According to him his statement was recorded by the police on 23.01.2009. Insofar as accused is concerned the subordinates working under him in the office and that there was enmity between the accused and the injured. Even on the earlier occasions, they had come to attack the injured. This injured witness is sure about the identity of the accused persons who had come to attack him with acid. He identified the accused during cross examination no serious significance is established however, insofar as the evidence of this witness is concerned materially, he says that on the date of the incident, it was the accused persons 1 and 2 who came on

motorcycle and attacked him by splashing acid on his face. In this connection, it is necessary to place the version of the complainant that she was not knowing about the accused persons' identity, the case is registered and name of the accused persons are not given in the complaint and it is shown as unknown persons.

15. However, in the oral evidence of the injured, he says that he was sure and certain about the offence being committed by the accused Nos.1 and 2 who are nothing but his sub-ordinates and that enmity existed between them for quite a long time.

16. It is also seen that his version includes the one on the date of the incident after the attack by the accused persons as he had told the matter in detail to the complainant which does not get corroboration from the complaint filed by the complainant wife.

17. The statement of the complainant was recorded in the hospital. According to the evidence of complainant the injured regained normalcy on 23.01.2009 that is almost after 29 days. This inconsistency which is material in the

circumstance of the prosecution case is not explained and it is material. In this connection, the motorcycle belonged to accused No.1 proof regarding ownership of the vehicle is produced. Moreover, the house of the complainant is not stated to be in an abandoned locality. It is located in the official quarters. The offence charged against the accused is punishable under section 307 of IPC. The sequence of the act, the pouring of the acid and the container used are not established before the Court. When the acid attack is made, the opening portion of the container if it is smaller than the bottom, splashing of acid will not be an easy flow and it is also the case of the prosecution that the accused had not sustained injuries.

18. Thus, sequence of the act or sustaining of the injuries requires to be established with independent circumstances though not eye-witnesses. The time is stated to be 7.00 p.m. and the explanation regarding the availability of light is not produced in an acceptable manner. There is no further convincing evidence to show regarding identification of the motorcycle.

19. The incident happened near the house of the complainant. The registration number of the TVS Motorcycle is also not established with precision. Appeal against accused No.1 is abated as per order dated 05.08.2019.

20. The accused cannot be nailed on the basis of the statement of accused No.1 without corroborating the circumstances.

21. Insofar as other witnesses are concerned, PW.1 Shantappa is the witness to spot and seizure mahazar as per Ex.P1 and 2. PW.2 is the Assistant Engineer who speaks about the sketch drawn of the scene as per Ex.P3.

22. PW.3 Dr.Gayatri who issued injury certificate as per Ex.P4. PW.6 Pundalik, Security guard in the house of PW.9. PW.7 Nagendra is the police constable and working as guard in the house of PW.9. PW.8 Abdul Kareem is the driver who shifted the injured. PW.9 M.A.Rahim who shifted PW.5 with the help of his guards to KBN Hospital. Insofar as PW.10 and 11 are concerned, they are the SDA in District Treasury Office and both of them turned hostile. PW.12 Baburao is the

PSI. PW.13 and 14 Sharanayya and Eshwar who are panch witnesses to Ex.P10 turned hostile. PW.15 Dr. P. Ramanand Giri who was working as Casualty Officer in Appollo Hospital, Hyderabad at the relevant point of time. PW.16 is the Investigating Officer who has submitted the charge sheet on completion of investigation.

23. DW.1 is accused No.1 Nagendrappa against whom the appeal is abated. DW.2 Veeranna who speaks regarding presence of Nagendrappa at the date of the offence. DW.3 is the Tippanna.

24. In the circumstances, it is to be mentioned regarding the evidence of star witnesses PWs.4 and 5 regarding identity, presence and attack by the accused is not convincing and the offence also does not bear corroboration. More particularly, the accused persons have stated in their evidence that they were not present on the date of the incident. Accused No.1 was present in the office at Gurmitkal, it is also stated that distance between Gurmitkal to Kalaburagi is 100k.ms. PW.2 in his evidence stated that journey time required is 4

hours but it is stated that distance is 100 kms. and journey time would be four hours.

25. The learned trial Court Judge, in our view, was right in holding that accused persons are not guilty of the offences to acquit them for the offence charged against them. There is no illegality or inconsistency to interfere with the judgment impugned.

26. Accordingly, the appeal filed by the State is hereby rejected and the judgment and order of acquittal dated 28.03.2011 passed by the 1st Additional Sessions Judge at Gulbarga in S.C.No.122/2009 is hereby confirmed.

Sd/- JUDGE

Sd/- JUDGE

VNR