Raju Poojari vs State Of Karnataka

-1- NC: 2024:KHC:37516 CRL.A No. 652 of 2013

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 20TH DAY OF AUGUST, 2024

BEFORE THE HON'BLE MR JUSTICE VENKATESH NAIK T CRIMINAL APPEAL NO.652 OF 2013 BETWEEN:

1. RAJU POOJARI S/O. HOMANNA AGED ABOUT 28 YEARS

2. PRAKASH S/O. BABU SHETTY AGED ABOUT 42 YEARS

APPELLANTS ARE RESIDENTS OF KUDU ROAD, KELAGANI BASKAL POST CHIKMAGALUR TALUK. ...APPELLANTS (BY SRI A. H. BHAGAVAN, ADVOCATE)

AND:

STATE OF KARNATAKA Digitally signed by BY ALDUR POLICE MOUNESHWARAPPA NAGARATHNA REPRESENTED BY Location: HIGH COURT OF THE STATE PUBLIC PROSECUTOR KARNATAKA HIGH COURT BUILDINGS BENGALURU-560 001. ...RESPONDENT (BY SRI DIWAKAR MADDUR, H.C.G.P.)

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE DATED 11.06.2013 PASSED BY THE PRL. S., J., CHIKMAGALUR IN S.C.NO.92/2012 - CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 323 AND 506 READ WITH 34 OF IPC. -2- NC: 2024:KHC:37516 CRL.A No. 652 of 2013

THIS CRIMINAL APPEAL IS COMING ON FOR FURTHER ARGUMENTS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR JUSTICE VENKATESH NAIK T

ORAL JUDGMENT

The appellants have filed this appeal under Section 374

(2) of the Code of Criminal Procedure, 1973 (hereinafter for

brevity referred to as "the Cr.P.C.") challenging the judgment

of conviction and order on sentence dated 11.06.2013 passed

by the learned Principal Sessions Judge, Chikmagalur,

(hereinafter for brevity referred to as the "Sessions Court") in

Sessions Case No.92/2012, wherein the Sessions Court

acquitted the appellants of the offence punishable under

Section 306 read with Section 34 of the Indian Penal Code,

1860 (hereinafter for brevity referred to as "the IPC") and

convicted the appellants for the offences punishable under

Sections 323 and 506 read with Section 34 of IPC and

sentenced to undergo simple imprisonment for a period of 6

months and to pay fine of Rs.1,000/- each, in default to

undergo simple imprisonment for one month for the offence

punishable under Sections 323 read with Section 34 of the IPC

and sentenced to undergo simple imprisonment for a period of -3- NC: 2024:KHC:37516 CRL.A No. 652 of 2013

one year and to pay fine of Rs.5,000/- each, in default to

undergo simple imprisonment for two months for the offence

punishable under Section 506 read with Section 34 of the IPC.

2. The factual matrix of the case of the prosecution is

that, on 01.10.2011, PW.4-Sampath Kumar, lodged complaint

against the appellants alleging that on 18.09.2011 at 7:00.p

m., his father Thammanna Gowda (deceased), had been to the

shop of accused No.1-Raju Poojari at Neradi village near Gane

cross, at that time accused Nos.1 and 2 took quarrel with

Thammanna Gowda in respect of return of Rs.50/-, assaulted

Thammanna Gowda. On 20.09.2011, again accused Nos.1 and

2 came near the house of deceased and threatened that they

would eliminate the deceased, if he lodged complaint to the

Police. Thus, the wife of deceased Shaila - PW.7 requested the

accused not to harass her husband. On 22.09.2011, at about

4.30 p.m. deceased consumed poison near Kalalgandi, hence,

the villagers of Kalalgandi informed PW.4 and PW.7 about

consumption of poison thus, he and his mother, his uncle PW.8

N.G.Uddegowda went to the spot saw his father who had

consumed poison, thus, shifted to M.G.Hospital, Chikmagalur

for treatment, later, Thammanna Gowda was shifted to -4- NC: 2024:KHC:37516 CRL.A No. 652 of 2013

Holycross Hospital, Chikmagalur for higher treatment and later,

he was shifted to K.M.C Hospital Mangalore on 23.09.2011,

however, Thammanna Gowda died on account of consumption

of poison on 30.09.2011 at 11.00 p.m. In the complaint, it is

stated that, as accused Nos.1 and 2 took quarrel with

Thammanna Gowda and made criminal intimidation that they

will eliminate him, due to the fear, depression and humiliation

caused, Thammanna Gowda consumed poison, who was shifted

to hospital, took treatment, however he died, thereby, accused

Nos.1 and 2 have abated the deceased to commit suicide,

hence, PW.4 lodged complaint to the police vide Ex.P3. Based

on the complaint, Aldur Police, Chikmagalur District registered

a case in Crime No.156 of 2011 for the offences punishable

under Sections 323, 506 and 306 read with Section 34 of IPC.

This led to registration of FIR and investigation. Soon after the

investigation, PW.16-Investigating Officer filed the charge-

sheet against accused Nos.1 and 2 for the aforesaid offences.

3. After perusing the materials placed on record and

hearing both side, the Sessions Judge's Court framed a charge

against accused Nos.1 and 2 for the offences punishable under

Sections 323, 506 and 306 read with Section 34 of IPC. Since -5- NC: 2024:KHC:37516 CRL.A No. 652 of 2013

accused Nos.1 and 2 pleaded not guilty and claimed to be tried,

the trial was held, wherein, in order to prove the alleged guilt

against the accused, the prosecution got examined in all

sixteen witnesses as PWs.1 to PW.16, got produced and

marked documents from Exs.P1 to P27 and produced Material

Object as per MO.1. From the accused' side, neither any

witness was examined nor any documents were got marked as

exhibits.

4. After hearing both sides, the learned Sessions Judge's

Court, by its judgment dated 11.06.2013 and acquitted accused

Nos.1 and 2 of the offence punishable under Section 306 read

with Section 34 of IPC. However, convicted accused Nos.1 and

2 for the offences punishable under Sections 323 and 506 of

IPC. Challenging the same, the appellants-accused Nos.1 and 2

have preferred the present appeal.

5. The appellants/accused Nos.1 and 2 are represented

by their respective learned counsel. The respondent-State is

represented by the learned High Court Government Pleader.

6. Learned counsel for the respondents/accused Nos.1

and 2 are physically appearing in the Court. Learned High Court -6- NC: 2024:KHC:37516 CRL.A No. 652 of 2013

Government Pleader for the appellant-State, is physically

appearing in the Court.

7. The Sessions Judge's Court's records were called for

and the same are placed before this Court.

8. Heard the arguments from both side. Perused the

materials placed before this Court, including the memorandum

of appeal, impugned judgment and the Sessions Judge's Court

records.

9. For the sake of convenience, the parties would be

henceforth referred to as per their rankings before the learned

Sessions Judge's Court.

10. Learned counsel for appellant contended that

judgment of conviction and sentence passed by the learned

Sessions Judge is not in accordance with law and evidence. The

Sessions Judge having acquitted the appellants of the offences

punishable under Section 306, but, committed an error in

convicting the appellants for offences punishable under

Sections 323 and 506 read with 34 of IPC, based on similar

evidence, since, the Sessions Judge has disbelieved the

prosecution case, in so far as 306 of IPC. The Sessions Judge -7- NC: 2024:KHC:37516 CRL.A No. 652 of 2013

relied on an interested and partition witness. It is contended

that accused No.1 has been running a shop. On 18.09.2011 at

7.30 p.m., the deceased Thammanna Gowda had been to the

shop of accused No.1 and for the sake of Rs.50/-, which was

due by deceased to accused No.1, there was a incident which

the appellants assaulted. In this regard, the prosecution got

examined PW.3, N.G. Rudregowda (brother of deceased) and

PW.4 Sampath Kumar (son of deceased). In fact, PWs.3 and 4,

at the time of alleged incident, they were in their respective

house and as such they are not eyewitnesses to the incident

and they were informed by others. Therefore, the oral

testimonies of PWs.3 and 4 is in the nature of hearsay

witnesses, but, the Sessions Judge convicted the appellants,

placing reliance on the hearsay evidence of PWs.3 and 4. Thus,

the evidence of prosecution witness in that regard is

contradicted with each other and there is no corroboration to

that effect.

11. It is contended that, in so far as, second incident

alleged to have been occurred on 20.09.2011, as per the case

of prosecution accused Nos.1 and 2 came near the house of

deceased and made criminal intimidation to eliminate the -8- NC: 2024:KHC:37516 CRL.A No. 652 of 2013

deceased. In order to establish this aspect the prosecution

relied upon oral testimonies of PWs.4, 7 and 8. As per the

evidence of these witnesses, at the time of alleged incident

they were in garden land and deceased was in house,

therefore, there was no occasion for them to witness an alleged

incident, more particularly, accused persons making criminal

intimidations to the deceased. Therefore, PWs.4, 7 and 8 are

interested and hearsay witnesses and their evidence cannot be

believed. In the absence of evidence of PWs.4, 7 and 8,

absolutely there is no material evidence so as to prove the

ingredient of Section 506 of IPC. Hence, the counsel prayed to

allow the appeal.

12. Learned High Court Government Pleader appearing

for the respondent-State, in his arguments, submitted that the

trial Court has rightly appreciated the evidence of the

prosecution witnesses and material placed on record in its

proper perspective. PWs.3 and 4 have categorically stated that

accused Nos.1 and 2 assaulted the deceased in the shop of

accused No.1 on 18.09.2011. Further, on 22.09.2011 accused

Nos.1 and 2 came near the house of deceased and made

criminal intimidation to eliminate him. In this regard, the -9- NC: 2024:KHC:37516 CRL.A No. 652 of 2013

prosecution relied upon the evidence of PWs.4, 7 and 8, which

would attract Section 506 of the IPC. The oral testimonies of

PWs.3, 4, 7 and 8 are corroborated with each other.

13. It is contended that the Sessions Judge's Court rightly

considered that the testimonies of PWs.3, 4, 7 and 8 are

accorded a special status in law. The evidence on record does

not disclose any material omissions and contradictions in the

evidence of PWs.3, 4, 7 and 8, if read as a whole, appears to

have a ring of truth to it.

14. It is contended that the prosecution proved its case

beyond reasonable doubt by producing material evidence

before the Sessions Court, hence, it has rightly convicted the

accused persons. Thus, he prayed to dismiss the appeal.

15. After hearing the learned counsel from both sides,

the points that arise for Court consideration in this appeal is:

i. Whether the prosecution has proved beyond reasonable doubt that on 18.09.2011 at about 07.00 p.m., near the shop of accused No.1 at cross road of Kelagane Village, accused Nos.1 and 2 in furtherance of common intention, voluntarily caused hurt to deceased Thammanna Gowda by assaulting him with hands and on 20.09.2011 near the house of deceased, accused Nos.1 and 2 came and made criminal intimidation by giving life threat to the

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deceased, thereby, committed an offences punishable under Sections 323 and 506 read with Section 34 of IPC?.

ii. Whether the judgment of conviction and order of sentence under appeal warrants any interference at the hands of this Court?.

16. Before proceeding further in analyzing the evidence

led in the matter, it is to be borne in mind that it is an appeal

against the judgment of conviction of accused for the offences

punishable under Sections 323 and 506 read with Section 34 of

the IPC. In the very same judgment, the Sessions Judge

acquitted the appellants of the offence punishable under

Section 306 read with Section 34 of IPC. It shows that, the

Sessions Judge acquitted the appellants for the major Section

punishable under Section 306 of IPC and convicted for the

minor offences punishable under Sections 323 and 506 of IPC.

Therefore, the accused has primarily the double benefit.

Firstly, the presumption under law is that, unless his guilt is

proved, the accused has to be treated as an innocent person in

the alleged crime. Secondly, the accused has already been

enjoying the benefit of judgment of acquittal in respect of 306

of IPC, passed under the impugned judgment. As such, bearing

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the same in mind, the evidence placed by the prosecution in

the matter is required to be analyzed.

(a) The Hon'ble Apex Court, in its judgment in the case of

Chandrappa and others -vs- State of Karnataka, reported

in (2007) 4 Supreme Court Cases 415, while laying down

the general principles regarding powers of the Appellate Court

while dealing in an appeal against an order of acquittal, was

pleased to observe at paragraph 42(4) and paragraph 42(5) as

below:

"42(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.

42(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court."

(b) In the case of Sudershan Kumar -vs- State of

Himachal Pradesh reported in (2014) 15 Supreme Court

Cases 666, while referring to Chandrappa's case referred

(supra), the Hon'ble Apex Court at Paragraph 31 of its

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judgment was pleased to hold that, it is the cardinal principle in

criminal jurisprudence that presumption of innocence of the

accused is reinforced by an order of acquittal. The Appellate

Court, in such a case, would interfere only for very substantial

and compelling reasons.

(c) In the case of Jafarudheen and others -vs- State

of Kerala reported in (2022) 8 Supreme Court Cases 440,

at Paragraph 25 of its judgment, the Hon'ble Apex Court was

pleased to observe as below:

"25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, the appellate Court has to consider whether the trial Court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate Court has to be relatively slow in reversing the order of the trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."

The above principle laid down by it in its previous case

was reaffirmed by the Hon'ble Apex Court, in the case of Ravi

Sharma -vs- State (Government of NCT of Delhi) and

another reported in (2022) 8 Supreme Court Cases 536

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and also in the case of Roopwanti -vs- State of Haryana

and others reported in AIR 2023 SUPREME COURT 1199.

17. It is keeping in mind the above principles laid down

by the Hon'ble Apex Court and the fact that, the Sessions Court

acquitted the appellants for an offence punishable under

Section 306 Read with 34 of the IPC which is major offences

and convicted for Section 323 and 506 of the IPC. The Court

proceed to analyse the evidence placed by the prosecution in

this matter.

18. The prosecution, in order to prove the alleged guilt

against accused Nos.1 and 2, has examined in all sixteen

witnesses as PW.1 to PW.16.

19. PWs.1 and 2 are witness to inquest mahazar- Ex.P1.

Since, accused Nos.1 and 2 were acquitted of offence

punishable under Section 306 of IPC, it is not relevant to

discuss the evidence of inquest mahazar witness and opinion of

the doctor, as to cause of death.

20. PW.3, Sri N.G. Rudregowda, the brother of deceased

has stated that his brother deceased Thammanna Gowda died

due to consumption of poison, on account of ill-treatment and

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harassment by accused Nos.1 and 2 for having due of Rs.50/-.

It shows that, PW.3 has not witnessed the incident on

18.09.2011 at 7.30 p.m. Hence, his evidence does not come to

the aid of prosecution.

21. PW.4, Sampath Kumar, the son of deceased has

stated that on 18.09.2011 at about 7:30 p.m., his father had

been to the shop of accused No.1. For the sake of Rs.50/-

which was due to accused Nos.1 and 2, they assaulted the

deceased with their hands. The persons who pacified the

quarrel between the deceased and accused Nos.1 and 2 and

this fact was narrated by deceased to PW.4. It shows that,

PW.4 is also not an eyewitness to the incident dated

18.09.2011 and thus, he is a hearsay witness for all practical

purpose. So far as the incident dated 20.09.2011, PW.4 has

stated that on 20.09.2011, in the evening hours accused Nos.1

and 2 came to the house of deceased and told that if he files

the complaint to the police for having assaulted on two days

prior they would eliminate him. At that time, PW.4 and PW.7,

the wife of deceased were present in the house, thus, PW.7

requested the accused persons not to harass the deceased, to

which, the accused persons told that they would eliminate him

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and throw and later, on 22.09.2011, at 4.30 p.m. the deceased

consumed poison and on 30.09.2011, the deceased breathed

his last.

22. PW.4 was subjected to cross examination. In the

cross examination, he admits that he was not aware of any

financial transaction of the deceased. He has not stated in the

complaint-Ex.P3 that on 18.09.2011, when quarrel took place

in front of shop of accused No.1, the incident has been told by

one Gopalagowda PWs.13 and 9 Chandregowda. Hence, he is

not an eye witness to the incident dated 18.09.2011 and so far

as the incident dated 20.09.2011, when the accused persons

came near the house, took quarrel and threatened, he or PW.7

did not lodge any complaint for almost fourteen days.

23. PW.7-Shaila, the wife of deceased, has reiterated the

oral testimony of PW.4 and corroborates his evidence.

24. PW.8-Sri. N.G.Uddegowda, the elder brother of

deceased, has stated that, on 18.09.2011 at about 8:00.pm.,

his brother (deceased) came to his house and told that accused

Nos.1 and 2 have assaulted him near the shop of accused No.1

in respect of due amount of Rs.50/-. It is further evidence of

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PW.8 that on 20.09.2011, when he was in his garden land,

accused Nos.1 and 2 came near the house of deceased and

were abusing him and made criminal intimidation and on

22.09.2011, the deceased consumed poison. In the cross

examination, he admits that, soon after receipt of information

by the deceased in respect of the incident dated 18.09.2011

and 20.09.2011, he did not lodge any complaint. He further

admitted that, when quarrel took place at about 4:00.pm. on

20.09.2011 all persons had been to coolie work. He further

admitted that, on 20.09.2011, he was attending to his duties in

the garden land and on that day, PWs.4 and 7 were also

attending their duties in the garden land, however, deceased

was in the house. Soon after receipt of phone call, PWs.4 and

7 and 8 went in a bike to kalalgandi. It shows that PWs.4, 7

and 8 were not eye witnesses to the incident dated 20.09.2011

and they are a hearsay witnesses.

25. PW.9 - K.Y.Chandregowda, an eye witness to the

incident dated 18.09.2011. He has stated that on 18.09.2011

at about 7:00.pm, he had been to the shop of accused No.1, at

that time deceased Thammanna Gowda and accused

No.2-Prakash came there. Accused No.1 and deceased were

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quarreling in respect of money transaction. In the cross

examination, he admits that, he has not seen accused Nos.1

and 2 assaulting deceased with their hands.

26. In the light of the above evidence, it is just and

necessary to analyze Sections 323 and 506 of IPC, to ascertain

whether ingredients of these sections are proved or not.

(a) Section 321 of IPC defines Voluntarily causing hurt,

which reads as under:

"Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt".

(b) Section 323 of IPC defines Punishment for

voluntarily causing hurt, which reads as under:

"Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both."

(c) Section 503 of IPC defines Criminal intimidation,

which reads as under:

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"Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation."

(d) Section 506 of IPC defines punishment for criminal

intimidation, which reads as under:

"Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."

27. In the instant case, statement of the complainant and

other witnesses contain general allegations that the deceased

was assaulted by the appellants. It is no where alleged that

the assault and criminal intimidation made by the appellant has

provoked the deceased to commit suicide. What was the nature

of the assault and injuries inflicted upon the deceased by the

appellants is also not forthcoming from the evidence of the

complainant and other witnesses. The trial Court has not

considered the dying declaration of the deceased and other

witnesses so as to convict accused under Section 306 of IPC,

but on the similar evidence, how can the trial Court base

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conviction for offence punishable under Section 323 of IPC, in

the absence of any legal evidence. Therefore, from the

material on record, the ingredients of offence punishable under

section 323 IPC are not made out. It is well settled that, where

on the evidence two possibilities are available or open, one

which goes in favour of the prosecution and the other which

benefits an accused, the accused undoubtedly entitled to the

benefit of doubt. Further, if two views are possible on the

evidence adduced in the case, one pointing to the guilt of the

accused and the other to his innocence, the view which is

favorable to the accused would be adopted. This principle

enunciated in the case of SHARAD BIRDHI CHAND SARADA

Vs. STATE OF MAHARASTRA reported in (1984) 4 SCC 116.

28. So far as offence punishable under section 506(1) of

the IPC, which according to the trial court is proved against the

appellant. Section 506 of the IPC prescribes the punishment for

offence of criminal intimidation and section 503 of the IPC

defines the offence criminal intimidation. Section 503 of the IPC

reads as under:

"503. Criminal intimidation:- Whoever threatens another with any injury to his person,

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reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of laws avoiding the execution of such threat, commits criminal Intimidation."

Explanation.- A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section. Illustration A, for the purpose of inducing B to desist from prosecuting a civil suit, threatens to burn B's house. A is guilty of criminal intimidation."

29. From a perusal of the aforesaid provision, it is clear

that in order to satisfy the ingredients of offence of criminal

intimidation, there has to be a threat of injury to a person,

reputation or property of the complainant by the accused,

which should be with the intention to cause alarm to that

person or to cause that person to do any act which he is not

legally bound to do, or to omit as to do, so as to avoid the

execution of such threat. In case of Manik Taneja and

Another vs. State of Karnataka and Anr., reported in

(2015) 7 SCC 423, the Hon'ble Supreme Court had an

occasion to examine the ingredients of sections 503 and 506

IPC. The Hon'ble Supreme Court after noticing the provisions

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contained in section 503 IPC, which define offence of criminal

intimidation, has observed as under:

"11. XXXXXXXXXXXX A reading of the definition of "criminal intimidation" would indicate that there must be an act of threatening to another person, of causing an injury to the person, reputation, or property of the person threatened, or to the person in whom the threatened person is interested and the threat must be with the intent to cause alarm to the person threatened or it must be to do any act which he is not legally bound to do or omit to do an act which he is legally entitled to do."

30. From the foregoing enunciation of law, it is clear that

in order to constitute offence of criminal intimidation, there

must be threat with an intention to cause alarm to the

deceased or to do any act which he is not legally bound to do.

Mere expression of any words without any intention to cause

alarm to the deceased or to make him to do or omit to do any

act, would not be sufficient to bring the act within the definition

of criminal intimidation.

31. In the light of the above proposition of law, it is just

and necessary to delve upon the evidence of prosecution

witness, whether the prosecution proved the ingredient of

Section 506 of IPC or not. In this case, the first incident took

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place on 18.09.2011 at 7:00 p m., in front of shop of accused

No.1. All the witnesses have stated that, there was quarrel

between the deceased Thammanna Gowda and accused No.1.

None of the witness has stated that, accused No.1 voluntarily

caused hurt to deceased. Though, PW.3 and PW.4 have stated

that, they have seen the incident, but in the cross examination

they admits that they have not seen the incident.

32. It shows that neither an eye witness to the incident

nor family members of the deceased have stated that, they

have seen accused Nos.1 and 2 assaulting the deceased with

their hands on 18.09.2011 at 7:00.pm. in front of shop of

accused No.1. So also, there is contradictory evidence as to

eye witness, in respect of the incident occurred on 20.09.2011.

As per the evidence of PW.4, he was eye witness to the incident

dated 20.09.2011. However, PW.8 has falsified the oral

testimonies of PWs.4, 7 and 9 and admitted that at the time of

incident they were in garden land and performing their

agriculture work and soon after information through mobile

phone, they came to the house of deceased in a motorcycle.

Thus, there is an apparent contradictory statement in the oral

testimonies of PWs.3, 4, 7, 8 and 9 and hence, their evidence

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cannot be believed so far as the incident occurred on

18.09.2011 and 20.09.2011.

33. In this case, the prosecution relying upon the

evidence of hearsay witness and statement of deceased

recorded by the Police Officer and Doctor. But, the Sessions

Court rejected the dying declaration of deceased in respect of

any incident and the evidence of hearsay witness, accordingly,

acquitted accused Nos.1 and 2 for the offence punishable under

Section 306 read with Section 34 of IPC.

34. As already stated, the trial Court has rendered

acquittal judgment for the offence punishable under Section

306 read with Section 34 of IPC and thus, ended in acquittal of

major offence punishable under Section 306 of IPC on the

evidence of the prosecution. When the offence punishable

under Section 306 read with Section 34 of IPC has ended in

acquittal, naturally it would dilute the strength of the evidence

of the prosecution, as regards the minor offences such as,

Sections 323 and 506 of IPC. The motive factor and the

intention as regards abatement of suicide and as regards

Causing the death of deceased is the main part to be

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considered in the instant case. In this case, the abatement of

suicide by the accused persons has not been proved by the

prosecution. When the main offence punishable under Section

306 of IPC is not proved, convicting for offence punishable

under Sections 323 and 506 of IPC is not required.

35. Thus, the evidence of PWs.1, 7 and 8 are unable to

take the case of the prosecution to its desired end, since the

evidence of these witnesses do not inspire any confidence to

believe in it and the evidence of PW.3, which is independent of

any corroborative evidence, is also totally insufficient to take

the case of the prosecution any further. Consequently, the case

of the prosecution suffers from lack of evidence to prove the

alleged guilt against the accused.

36. As analyzed above, since the prosecution could not

stand on its own legs and could not able to prove the charge

leveled against the accused, whatever, the defences taken by

the accused whether established or not, have no consequence.

37. In the instant case, it has been alleged by the

complainant in the complaint as well as in his evidence during

trial that his father was threatened by the appellants in front of

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NC: 2024:KHC:37516 CRL.A No. 652 of 2013

their house. What kind of threat was extended to his father is

not discernible from the material on record. It has not been

alleged by the complainant that while extending the threat, the

appellants wanted him to do or omit to do any act. More

importantly, the Sessions Court, disbelieving the evidence of

PWs.3, 4, 7 and 8 has acquitted the appellants of the offence

punishable under Section 306 of the IPC. When the Sessions

Court disbelieve the evidence of aforesaid witness for major

offence, how can it considered similar evidence for minor

offence, that too, in the nature of hearsay evidence, as the

Sessions Court disbelieve the dying declaration given by the

deceased.

38. In the instant case, as already discussed, the material

on record coupled with the allegations made in the complaint

do not make out offences punishable under sections 323 and

506 of the IPC, as the ingredients of the aforesaid offences are

not proved. Thus, it was not open to the learned Sessions

Judge to hold that the aforesaid offences are proved against

the appellants.

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NC: 2024:KHC:37516 CRL.A No. 652 of 2013

39. On considering the evidence, both oral and

documentary, placed before it in its proper perspective, the

learned Sessions Judge's Court has committed error in

convicting accused Nos.1 and 2 for the offences punishable

under Sections 323 and 506 of the IPC.

40. None of the witnesses have stated that accused

persons have assaulted the deceased on 18.09.2011 and made

criminal intimidation on 20.09.2011. Hence, in the absence of

such material particulars, the conviction imposed by the

Sessions Court, in an uncorroborated testimony, requires to be

interfering with. Hence, the appeal deserves to be allowed.

Hence, the Court proceeds to pass the following order:

ORDER

1. The Criminal Appeal is allowed.

2. The judgment of conviction and order on

sentence dated 11.06.2013, passed by the

learned Principal Sessions Judge, Chikmagalur

in SC No.92/2012 convicting accused Nos.1

and 2 for the offences punishable under

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NC: 2024:KHC:37516 CRL.A No. 652 of 2013 Sections 323 and 506 read with 34 of IPC is

set aside.

3. Accused Nos.1 and 2 are acquitted of the

offences punishable under Sections 323 and

506 read with Section 34 of IPC.

4. The bail bond of accused and their surety

stands cancelled.

5. The fine amount deposited by accused Nos.1

and 2 shall be returned to them.

Registry to transmit a copy of this judgment along with

Sessions Court records to the concerned Sessions Court

immediately.

Sd/-

(VENKATESH NAIK T) JUDGE

PHM List No.: 1 Sl No.: 2