Manjunath Ganesh Hegde & Ors vs State Of Karnataka

recorded by the High Court of Karnataka on

February 06, 2002 in Criminal Appeal No. 775 of

2001.

2. To appreciate the case of the

appellants, few relevant facts may be noted.

3. It was the case of the prosecution

that on January 04, 2000, at about 3.00 p.m.,

near Kallaimane Cross at village Tatagar, 2

Taluka Yellapur, appellant-accused attacked

complainant Gopal Sitaram Hegde with stones and

wooden sticks. They also attacked and caused

injuries to Nagesh Ganapati Bandekar and Smt.

Nagaveni. The accused persons also administered

threat to kill Gopal Hegde. All the

accused thereby committed offences punishable

under Sections 341, 324, 326, 504, 506 read

with Section 34 of the Indian Penal

Code, 1860 (IPC).

4. Usual investigation was carried out by

the police authorities. Charge was framed

against the accused. The accused pleaded not

guilty to the charge and claimed to be tried.

5. The prosecution in order to prove the

case against the accused examined eight

witnesses including three injured witnesses, PW

1 Gopal Sitaram Hegde-complainant, PW 2 Nagesh

Ganapati Bandekar, coolie of PW 1 and PW 3,

Smt. Nagaveni, wife of PW 1 Gopal-complainant.

The prosecution also examined two Doctors, PW 4 3

Doctor Sadanand Krishna Kamat and PW 5 Dr. N.K.

Katri.

6. The learned Judicial Magistrate, First

Class, Yellapur held that there was discrepancy

between the medical evidence and ocular

evidence. He also held that there were

contradictions in the depositions of eye-

witnesses and in the circumstances, it cannot

be concluded that the prosecution was

successful in proving the guilt against the

accused beyond reasonable doubt. Accordingly,

by the judgment and order dated March 27, 2001,

he acquitted all the accused.

7. The State of Karnataka being aggrieved

by the order of acquittal preferred an appeal

in the High Court of Karnataka under Section

378 of the Code of Criminal Procedure, 1973

(hereinafter referred to as `the Code'). The

High Court heard the learned Additional Special

Public Prosecutor in favour of the appeal as

also the learned counsel representing the

respondent-accused. The High Court observed 4

that so far as the inconsistencies in the

ocular evidence of PWs 1, 2 and 3 were

concerned, inconsistencies and contradictions

were on minor matters. The incident in question

was clearly established. The Court also held

that injuries sustained by the prosecution

witnesses were established from medical

certificates issued by doctors as also from the

testimony of doctors. The trial Court was,

therefore, not right in discarding the sworn

testimonies of the witnesses when they were

doubly supported and corroborated from other

evidence on record. It was also proved that

there was hostility between the parties and

property disputes were going on in a Court of

law. The relations between the parties were

very bitter and a long standing litigation was

pending in a civil Court. The High Court, in

the circumstances, held that the trial Court

was wrong in totally acquitting the accused.

8. The High Court, taking note of all the

factors observed that it was a case of 5

extenuating circumstances, but not one of grant

of benefit of doubt. Then without considering

the evidence at all, the High Court partly

allowed the appeal. Observing that the

acquittal recorded by the trial Court for

offences punishable under Sections 341, 326,

504 and 506 read with Section 34, IPC could not

be said to be ill-founded, the High Court

upheld the acquittal. It stated that the

finding so far as the acquittal of accused for

those offences was concerned, did not require

interference. It, however, held that the

acquittal for offences punishable under

Sections 324 and 325, IPC was not meritted and

the finding recorded by the trial Court so far

as acquittal under those two sections was

concerned, was liable to be set aside. The

High Court, thus, partly allowed the appeal,

confirmed the acquittal of the accused for

offences punishable under Sections 341, 326,

504, 506 read with section 34, IPC, but set

aside the acquittal recorded by the trial court 6

and convicted the accused for offences

punishable under Sections 324 and 325, IPC read

with Section 34, IPC.

9. It also observed that it did not

propose to award any substantive sentence

directing the accused to undergo imprisonment

but they should pay fine of Rs.3,000/- each

meaning thereby that all the four accused will

pay Rs.12,000/- in aggregate. The said amount

was ordered to be deposited in the trial Court

within a period of three months from the date

of the judgment. It also ordered that after

recovery of fine, notices would be issued to

PWs 1,2 and 3 and directed the Court to pay

over the amount of Rs. 1,000/- each to PWs 2

and 3 and a sum of Rs.10,000/- to PW 1 by way

of compensation. The appeal was accordingly

disposed of. The said order is challenged in

the present proceedings.

10. We have heard the learned counsel for

the parties.

7

11. The learned counsel for the

appellants-accused contended that there is no

reasoning on the part of the High Court as to

why the accused were convicted. The High Court

merely repeated the findings recorded by the

trial Court that the accused were acquitted for

all the offences. There is no indication in

the judgment of the High Court what weighed

with the Court for confirming acquittal in

respect of certain offences as also setting

aside an order of acquittal for offences

punishable under Sections 324 and 325 read with

Section 34, IPC. There is no appreciation of

evidence either of PW1 Gopal-complainant, PW 2

Nagesh or PW 3 Smt. Nagaveni. It is,

therefore, impossible to imagine as to on what

basis the High Court convicted the appellants

for the offences under Sections 324 and 325

read with Section 34 IPC. It was, therefore,

submitted that the appeal deserves to be

allowed and the order passed by the High Court

requires to be set aside.

8

12. The learned counsel for the

respondent-State also stated that there is no

reasoning why the accused were acquitted for

certain offences with which they were charged

without appreciating the evidence of

prosecution witnesses.

13. Having heard the learned counsel for

the parties, in our opinion, the contention

raised by the learned counsel for the

appellants is well-founded. In a brief order,

the High Court partly allowed the appeal, but

there is no reasoning or basis as to what

weighed with the High Court in confirming the

order of acquittal recorded in favour of the

appellants-accused for certain offences and for

setting aside the order of acquittal and

ordering conviction of the accused for offences

punishable under Sections 324 and 325 read with

Section 34, IPC.

14. The High Court was exercising

appellate power as the first appellate Court.

It was, therefore, expected of the High Court 9

to consider the evidence of Prosecution

Witnesses, particularly because the three

witnesses were eye-witnesses as also injured

witnesses. The High Court had failed to

discharge its duty of exercising appellate

power as a regular court of appeal. The order

passed by the High Court, therefore, deserves

to be set aside by remitting the matter for

fresh disposal in accordance with law.

15. For the foregoing reasons, the appeal

deserves to be allowed and is allowed

accordingly and the matter is remitted to the

High Court for fresh disposal in accordance

with law.

16. Before parting with the case, we may

state that we may not be understood to have

expressed any opinion one way or the other on

the merits of the matter. As and when the High

Court will hear the matter, the Court will 1

decide the case without being influenced by any

observations made by us in this judgment.

17. Ordered accordingly.

.........................................................J. (C.K. THAKKER)

NEW DELHI, .........................................................J. November 05, 2008. (D.K. JAIN)