STATE OF KARNATAKA v. SHIVANAGOUDA

away. It is on this Background, Pw.11 lodged the complaint before jurisdiction Police as per Ex.P.16 and the same was registered in Crime No. 15/2015 as per Ex.P.15 for the aforementioned offences against accused - 6 - NC: 2024:KHC-D:2559-DB CRL.A No. 100174 of 2018 No.1 and 6 to 7 other unknown persons. Further, investigation officer conducted the panchanama and recorded the statements of material witnesses and post obtaining the Wound Certificate-Ex.P.18 from PW.14- Doctor, Investigation officer laid the charge-sheet against the accused persons i.e., respondent Nos.1 to 6 for the aforementioned offences before the committal Court.

4. Further, the learned Sessions Judge framed the charges against the accused for the aforementioned offences and read over the same to the accused. However, accused persons denied the same and claimed to be tried.

5. In support of the prosecution case, the prosecution relied upon the evidence of total of 20 witnesses i.e., PW.1 to PW.20 and 24 documents i.e., Exs.P1 to 24 so also got identified 2 Material Objects i.e., M.O.1 and 2. - 7 - NC: 2024:KHC-D:2559-DB CRL.A No. 100174 of 2018

6. Post completion of the prosecution evidence, learned Sessions Judge read over the incriminating evidences of material witnesses as contemplated under Section 313 of CrPC and accused denied the same. However accused neither chose to examine any witness nor produced any document in support of their defense. The defense of the accused is complete denial and that of false implication.

7. Post assessment of oral and documentary evidence, learned Sessions Judge acquitted the accused Nos. 1 to 6 for the aforementioned offences, the challenge to which is the appeal before this Court by the State.

8. Heard Learned Addl. SPP for the state so also Sri. Vittal S. Teli learned amicus curiae for respondent Nos.1, 2 & 5, Sri. A.R.Patil learned Counsel for respondent Nos.3 & 4 and Sri. K. M. Shiralli learned counsel for respondent No. 6. - 8 - NC: 2024:KHC-D:2559-DB CRL.A No. 100174 of 2018

9. Lenard Addl. SPP for the state vehemently opposing the findings recorded by the learned Sessions Judge would contend that, the judgement under appeal suffers from perversity and illegality as the learned Sessions Judge failed to appreciate the evidences of incriminating material witnesses i.e.,PW.11,16 to 18. He would further contend that PW.16 and 17 being the eye- witnesses to the incident, categorically deposed about the assault meted out on the PW.16 injured eye-witness and the evidence of both these witnesses corroborates with each other and also the medical evidence deposed by the Doctor-PW.14 and her report at Ex.P18-Wound Certificate. He would further canted that, though the independent eye-witnesses turned hostile to the case of prosecution, the testimony of PW.11,16 to 18 cannot be discarded only for the reason that, they are the relative/partisan witnesses to the incident. It is also vehemence by the council that the prosecution has also proved the recovery of MO.1 and MO.2 sticks which is used by the accused persons to assault PW.16 as both - 9 - NC: 2024:KHC-D:2559-DB CRL.A No. 100174 of 2018 PW.16 and 17 identified the same. According to the learned Addl.SPP prosecution also proved the motive for the commission of the crime, as it is undisputed fact that accused No.1 is the husband of PW.11 and there was matrimonial dispute that was pending among them which also reached to an extent where the intervention of Mahil Police Station was found to be necessary and in which the Brother-PW.16 was also involved. On these grounds learned Addl. SPP prays to allow the appeal .

10. Per Contra, learned counsels respondents who have argued identically, contend that the learned Sessions Judge after meticulously examining the evidence produced by the prosecution before him has rightly acquitted the accused in well-reasoned judgement and the same does not call for any interference by this Court. They would also contend that, on examination, the independent eye-witnesses to the case i.e., PW.1 and 2 has totally turned hostile to the prosecution case and Through, PWs.11 and 18 - 10 - NC: 2024:KHC-D:2559-DB CRL.A No. 100174 of 2018 supported the case of prosecution; they are hearsay witnesses to the incident. Further, PWs.16 and 17 i.e., the injured and eye-witnesses though deposed against the accused, failed to depose about circumstances under which all the accused entered their house and manner in which assault was made by the accused. He would further pursue this Court to evidence of PW.16 and submit that, according to PW.16, he was nabbed in the car to an open place in Gandhingar and the accused assaulted him with sticks there. But, those sticks were not seized by the Investigation Officer in the present case. According to him the accused initially assaulted him in the house of sister of PW.11 i.e., PW.17, with MO.1 and MO.2 sticks, which were not sent to Medical Officer by the Investigation Officer in order to obtain opinion of the Medical Officer as to the injuries sustained by the injured PW.16. Further, according to the learned counsel, except the omnibus statement of PW.11, 16 to 18, the prosecution failed to place cogent evidence to proved the guilt of the accused persons and - 11 - NC: 2024:KHC-D:2559-DB CRL.A No. 100174 of 2018 as such all the counsels would contend that the learned Sessions Judge has rightly appreciated these evidences so also material documents made available before him and acquitted the accused for the aforementioned offences. On these grounds, learned counsels for the respondents so also the amicus curiae prays for dismissal of the appeal by confirming the judgment of acquittal passed by the learned Sessions Judge.

11. Having heard the respective parties so also on perusal of the records made available before this Court, the only question that would arise for our consideration is that- “Whether the judgment under this appeal suffers from any perversity or illegality?”

12. This Court being the appellate Court, it is mandated under the law to re-appreciate the evidences placed before it. Accordingly, on careful perusal and re- appreciation of the evidences, we find; - 12 - NC: 2024:KHC-D:2559-DB CRL.A No. 100174 of 2018 PW.1-Ashok Gudekar PW.2-Manjunath Padmappanavar, independent witnesses, cited as the neighbour of PW.17 and citd as the eye-witnesses to the incident, by the prosecution and has totally turned hostile to the prosecution case. PW.3-Shakil Ahmed Badami, owner of the two wheeler bearing No. KA-25-EL-0812. He is also witness swho identified the photographs as per Exs.P3 to 7 and witness to mahazar draws as per Ex.P8 and also received the two wheeler back from the Investigation Officer, post release Order as per Ex.P9. PW.4-Manjunath Honnannanavar, panch witness for spot mahazar as per Ex.P10 and also witness for Seizure Mahazar as per Ex.P11, turned hostile to the case of prosecution. PW.5-Shivanand B Meti, is the witness for spot panchanama of the second incident as per Ex.P12, turned hostile to the prosecution case. - 13 - NC: 2024:KHC-D:2559-DB CRL.A No. 100174 of 2018 PW.6-Usman Mirajkar, witness for mahazar draw for release of two wheeler as per Ex.P8 and also panch witness for spot panchanama as per Ex.P12,. turned hostile to the prosecution case. PW.7-Murtuja Makandar, witness for mahazar as per Ex.P8, turned hostile to the prosecution case. PW.8-Salim Nayakvadi, witness seizure mahazar as per Ex.P13, tunred hostile prosecution case. PW.9-Safar Sadik Tadapatri, witness for seizure mahazar as per Ex.P13, turned hostile prosecution case. PW.10-Durgappa @ Madhu Shringeri, alleged owner of the car used in the incident bearing No. KA-48- M-0385, turned hostile to the prosecution case. PW.11-Smt. Nagaveni Patil, complainant in the case on hand and wife of the accused No.1 reiterated - 14 - NC: 2024:KHC-D:2559-DB CRL.A No. 100174 of 2018 the version of Ex.P16-Complaint and she is a hearsay witness to the incident. PW.12-Basappa Chakrasali, then Head Constable, carried the FIR as per Ex.P15 to the Jurisdictional Magistrate. PW-13-Ramalingappa Bangari, the then Police constable, who has aided the investigation officer in arresting the accused persons and also issued report as per Ex.P17. PW.14-Dr. Sushila Patil, Medical Officer, examined the injured PW.16 and rendered final opinion as per Ex.P18 Wound Certificate that the injuries are simple in nature and also opined that the injuries sustained by PW.16 could be caused by coming in contact with hard and rough surface. PW.15-Shivappa Tegur, the Asst. Sub- Inspector, submitted report as per Ex.P19 to the - 15 - NC: 2024:KHC-D:2559-DB CRL.A No. 100174 of 2018 Investigation Officer. He has also identified photographs of the Car as per Ex.P20 to 23. PW.16- Mahavir P., brother of the PW.11, injured eye-witness, deposed that the relationship between PW.11 and accused No.1 had strained as such PW.11 had approached Mahila Police station, Hubli, who in-turn held the counselling between the accused and PW.11 and guided the accused No.1 to make an arrangement for stay by taking a house to PW.11 and accordingly accused No.1 had agreed for the same and had sought 18 days time to comply to it and until then accused No.1 requestedPW.11 to reside in the house of PW.17. Further, when the accused No.1 failed to honour his promise, PW.11 again approached the Mahila Police station who in-turn had arranged the counselling on

09.02.2015 and in that connection he has deposed that, PW.11 requested him to accompany him to the counselling and as such he had reached the house of PW.17 on 08.02.2015 at about 08.30 pm. He further - 16 - NC: 2024:KHC-D:2559-DB CRL.A No. 100174 of 2018 deposed that on 09.02.2015 when they were about to go to scheduled counselling, Accused No.1 reached out to PW.11 via phone and informed her that he has taken the home in Gandhinagar and asked her to come near SDM Hospital, Dharwad and accordingly, believing the words of accused No.1, when PW.11 and her son left the house of PW.17 to SDM Hospital, Dharwad, accused persons barged into the house of PW.17 and started abusing him snatching his mobile phone from his hand. He further deposed that, post snatching his cell phone, scared, he ran to the toilet room to hide there and locked the door. Later, accused persons broke open the door of the toilet room and dragged to him hall room and among them two accused persons held his hands and Accused Nos.1 and 2 with stick assaulted him on his chest, dorsum and other parts and Accused Nos.4 and 5 with hands assaulted him all over his body. He also further deposed that when PW.17 came to rescue, accused No.1 slapped her on her cheeks and threatened - 17 - NC: 2024:KHC-D:2559-DB CRL.A No. 100174 of 2018 her that if she do not shut her mouth and stand idle, they shall kill him. Further he deposed that, they nabbed him in a Indica car bearing No. KA-48-M0385 and accused Nos,3 to 5 along with him inside the car and accused Nos.1 and 2 in a bike bearing No. KA-25-EL- 0812 took him to an open place and dragged him out of the car and again assaulted him with sticks and hands in a similar pattern as in the house and again pushed him to the car and heaved him near Gandhinagar Bust Stop. He further deposed that post incident he travelled through bus and auto back to the house of PW.17 and 18, who then took him to KIMS Hospital, Hubli at about

4.20 pm and from there, post discussion with elders, he along with PW.11 visited to the jurisdictional police, wherein PW.11, lodged the complaint. PW.17-Smt. Padmashri Basti, wife of PW.18 and sister of PW.11 and 16, eye-witness to the incident, reiterated the version of PW.16 and she is a hear say witness to the second incident held at a open place. - 18 - NC: 2024:KHC-D:2559-DB CRL.A No. 100174 of 2018 PW.18-Nagaraj Basti, husband of PW.17, hearsay witness to the incident and also scribe of Ex.P16, reiterated the version enunciated by PW.16. PW.19-Sri Bharath S R, the then Police Inspector and Investigation officer, seized the car used in the commission of crime as per Mahazar at Ex.P13 and B extract as per Ex.P24 and also recorded the statement of some of the witnesses and after securing the necessary documents laid the charge sheet before the committal Court. PW.20-Channakeshava Tingarikar, the then Police Inspector and Investigation Officer, who received the complaint from PW.11 as per Ex.P16 and registered the FIR as per Ex.P15 for the aforementioned offences against the accused No.1 and 6 to 7 other unknown persons and arrested them and also conducted the panchanamas and recorded the evidences of material witnesses so also the panch witnesses. He also seized the two wheeler used in commission of crime as per - 19 - NC: 2024:KHC-D:2559-DB CRL.A No. 100174 of 2018 Ex.P11. Subsequently, he has also obtained the Wound Certificate form PW.14-Doctor as per Ex.P18 and handed over the investigation to PW.19.

13. On careful perusal of the evidence tendered by the above witnesses, PW.11 being the wife of respondent No. 1/accused No.1 reiterated the contents of Ex.P16 and deposed that the relation of herself and accused No.1 was strained and she was insisting him to make a separate house to continue the matrimonial relationship, for which, she also lodged the complaint before the Mahila Police station, Hubli, wherein the counselling was fixed on 09.02.2015 calling upon both the parties. To the said counselling she also called her brother Pw.16 and enraged by the same, the accused called her to come near SDM Dental College Dharwad on the pretext that he has made a new house for them to reside in Gandhinagar. Believing on his words when she travelled to said place, taking advantage of the same, the accused persons barged into the house of her sister - 20 - NC: 2024:KHC-D:2559-DB CRL.A No. 100174 of 2018 where PW.16 was also present and assaulted him with MO.1 and 2. Subsequently, she was informed about the same by PW.16 and 17 and as consequence of which, a complaint also came to be lodged by her. Further, PW.16 is the injured eye-witness in this case. According to PW.16, he came to the house of PW.17 on

08.02.2015 at about 08.30 pm and on the next day i.e., on 09.02.2015, when they were ready to approach Mahila police station, the accused No. 1 called PW.11 and informed that he has taken a house in Gandhinagar and requested her to come to the place aforementioned and when she travelled to the said place on instruction, at that time the accused barged into the house of PW.17 and abused him in filthy language. Though he tried to escape from the scene and got inside the toilet room, the accused broke open the door and dragged him, assaulted him and then again took him to car and nabbed him to an open place in Gandhinar and assaulted him and then heaved him near Bus stop of Gandhinagar. Subsequently, he was taken for treatment - 21 - NC: 2024:KHC-D:2559-DB CRL.A No. 100174 of 2018 to KIMS hospital, Hubli and thereafter, PW.11 lodged the complaint. PW.17, sister of the PW.11 being the eye- witness to the incident reiterated the incident as narrated by PW.16. PW.18 is the scribe of the incident who is a hearsay witness to the incident and post incident she accompanied PW.16 and 17 to the Hospital for treatment.

14. On careful perusal of the above evidence, the independent eye-witnesses PW.1 and 2 completely turned hostile to the prosecution case. Hence, the evidence of PW.11,16 to 18 who are the partisan witness in the case on hand does not corroborate with testimony of independent eye-witnesses. Admittedly, PW.11 i.e., wife of accused No.1 also came to know about the incident thorough PW.16 and 17, as such she is also a hearsay witness to the incident. PW.18 also deposed that, he came to know about the incident post materialization of the alleged assault and kidnap. Hence, as per the settled principle of law, much - 22 - NC: 2024:KHC-D:2559-DB CRL.A No. 100174 of 2018 evidentiary value cannot be attached to the evidence of hearsay witness. This Court to arrive at the above conclusion relies on the decision of the Hon’ble Apex Court in Pawan Kumar v. State of Haryana, reported in (2003) 11 SCC 241, wherein, paragraph No. 6 of the order reads as under – taxi, “6. The other circumstance that after boarding accused persons had gone to the hotel in question, stayed there during night in a room along with the driver of the vehicle, in the early morning both the accused left the hotel asking the waiter Vijay Kumar to take care of their uncle i.e. the driver who was in the room and that they would be returning soon, but never returned and thereafter on opening of the room, the driver was statement of Mahavir Singh (PW 6), owner of the hotel, the waiter Vijay Kumar persons, namely, two accused persons and the deceased went to the hotel, stayed there during the night and the accused persons left the hotel leaving the driver in the room”. Vijay Kumar, who was the solitary witness to prove this circumstance, has not been examined for reasons best known to the prosecution as even according to the prosecution case and evidence dead. According that “the told him - 23 - NC: 2024:KHC-D:2559-DB CRL.A No. 100174 of 2018 there was no other witness on this point. The owner of the hotel has simply stated that he learnt all these facts from Vijay Kumar. The presence of the accused persons in the hotel on the fateful night could have been established by examination of Vijay Kumar, who could have been the only competent witness to prove the same, but he has been withheld for which no explanation is forthcoming. So far as the evidence of the owner of the hotel, Mahavir Singh (PW 6) is concerned, that is hearsay evidence as he learnt everything from the waiter and had otherwise no personal knowledge of the same. Evidence of this witness could have been used to corroborate substantive evidence. In the absence of examination of Vijay Kumar in court, to prove this circumstance, there is no substantive evidence which could have been corroborated by the evidence of PW 6. Thus evidence of PW 6 cannot be of any avail to the prosecution to prove this circumstance.” (Underlined by US, emphasis supplied)

15. We are also aware of the fact that the evidence of PW.16 and 17 cannot be discarded only for the reason that they are relative witnesses. However, in the same time their evidence needs to be scrutinized at the level of great care and caution. On perusal of the - 24 - NC: 2024:KHC-D:2559-DB CRL.A No. 100174 of 2018 evidence of PW.11,16 to 18, they have profoundly admitted in their evidence that, accused No. 1 had lodged a complaint against PW.16 i.e., the injured in this case pertaining to the assault made by PW.16 to accused No.1, for which accused No.1 had lodged a complaint which ended up in acquittal of PW.16. The learned counsel for the respondents also vehemently contended that, with an intention of vengeance against accused No.1/respondent No.1, PW.16 has lodged this complaint. To substantiate the same, they would rely their emphasis on the evidence of PW.16 and 17. Wherein, Ex.P16 by the PW.11 is also lodged against only accused No. 1 and 6 to 7 unknown persons. Further, in their evidence they also stated that, they identified accused No. 2 to 5 in the police station as shown by the police and gave their further statement. Further, injuries sustained by PW.16 are also, if, viewed from the angle of wound Certiifcate-Ex.P18 are simple in nature and in cross-examination Doctor-PW.14 has admitted that the same could be caused on coming in - 25 - NC: 2024:KHC-D:2559-DB CRL.A No. 100174 of 2018 contact with the hard and rough surface. And, the doctor also admitted the suggestion made by the defense council that, the injuries are possible to be caused by, the fall from motorbike on rough surface. Further, the Wound Certificate also does not indicate the name of assailant. The MLC register of KIMS, Hospital, Hubli is also not produced before the Court.

16. Admittedly, the Doctro-PW14 did not give any opinion in respect of M.O.1 and 2 i.e., wooden sticks that are allegedly said to have been used in commission of the offence. Nevertheless, the witness for the spot panchanama and the seizure mahazar who are PW.4 to 9 in the present case, turned totally hostile to the prosecution case and hence, it is also that the prosecution not only failed to prove the alleged assault on PW.16 beyond reasonable doubt but also failed to prove the recovery of the weapons at M.O.1 and 2. In such scenario, the evidence of PW.16 and 17, suffers from reliability and corroboration and as such their - 26 - NC: 2024:KHC-D:2559-DB CRL.A No. 100174 of 2018 evidence cannot be solely relied upon to award the conviction for the accused person. Further, it is the case of the prosecution that all the accused have kidnapped PW.16 with an intention to take away his life. But as per the evidence of PW.16, he was again dropped back in the Bus Stop in Gandhinagar. Moreover, PW.16 deposed that he returned to house of PW.17 by taking Bus and auto. Admittedly, PW.16 has sustained simple injuries; hence as stated supra, versions in the evidence of PW.16 and 17 create a doubt in the mind of this Court, as to the occurrence of the alleged incident itself. The earlier ill-will between PW.16 and accused No. 1 and also admission by the Doctor-PW.14 stating that the said injuries can be caused form the fall from Motor bike, if, are collectively considered, we are of the opinion that the defense of the accused seems to be probable one. In that view of the matter, we are in congruence with the findings recorded by the learned Sessions Judge in acquitting the respondents so also the submissions advanced by the respondents herein. - 27 - NC: 2024:KHC-D:2559-DB CRL.A No. 100174 of 2018

17. To further emphasize on the case on hand, since this Court is sitting over the legality and correctness of the acquittal appeal, is bound by the norms laid down by the Hon’ble Apex Court in the case of H.D.Sundara and others Vs. State of Karnataka, reported in (2023) 9 SCC 581 wherein, the Top Court held that - “the appellate Court while deciding an appeal against the accused after re-appreciating the evidence is required to consider whether the view taken by the trial Court is possible view which could have been taken on the basis of evidence on record. If the view taken is a possible view, the appellate Court cannot over turn the order of acquittal on the ground that, another view was also possible. The appellate Court can interfere with the order of acquittal only if it comes to a finding that, the only conclusion which can be recorded on the basis of the evidence on record was that, the guilt of the accused was proved beyond all reasonable doubt and no other conclusion was possible. The appellate Court cannot overturn the acquittal only on the ground that, after re- appreciating the evidence, it is of the view that, the guilt of the accused was established beyond a reasonable doubt - 28 - NC: 2024:KHC-D:2559-DB CRL.A No. 100174 of 2018 only by recording such a conclusion an order of acquittal cannot be reversed, unless the appellate Court also comes to the conclusion that it was only a possible conclusion.” (Original emphasis relied)

18. If the case on hand is seen from the angle of the dictum laid down by the Hon’ble Apex Court, in my considered view, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt by adducing to probable documents and corroborative evidence and as such, we are of the opinion that the learned Sessions Judge has rightly acquitted the accused for the charges leveled against them. Such being the case, there seems no such compelling reasons forthcoming to interfere in the acquittal Judgment passed by the Sessions Judge. Accordingly, we answer the point above raised in negative and proceed to dismiss the appeal filed by the State as being devoid of merits. - 29 - NC: 2024:KHC-D:2559-DB CRL.A No. 100174 of 2018 We direct the legal service authorities to pay a sum of Rs.25,000/- to the learned counsel Sri. Vitthal S. Teli, as he was appointed as Amicus Curiae and he assisted the Court in disposal of this appeal. Sd/- JUDGE Sd/- JUDGE PJ LIST NO.: 1 SL NO.: 1