IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD Dated this the 29th day of September 2011 PRESENT THE HON’BLE MR.JUSTICE SUBHASH B.ADI AND THE HON’BLE MR.JUSTICE K.N.KESHAVANARAYANA Criminal Appeal No.158912006 BETWEEN: State of Karnataka, CPI, Mudhol. .Appellant (By Sri V.M.Banakar, AddI. SPP) AND: 1. Kallappa, Sb Venkappa Ainapur. Age: 57 years, 0cc: Cooli work, Rio Vantagodi, Tq. Mudhol, Dist: Bagalkot. 2. Bhimappa, Sb Govindappa Kuri, Age: 24 years, 0cc: Cooli work, Rio Vantagodi, Tq. Mudhol, Dist: Bagalkot ....Respondents (By Sri Mahantesh C. Kotturshettar, Adv.) mis c riininal appeal i hint tinder SeC urni 37 1) i d (3) ci Ct .P.c’ In the State PuNk’ Prose utor tot tt e Statc i flaw that this Honbie Court m’t he pit-used to gijilt lei e U: tile an .tppral auzainst the judgment dated i.u2 ti(i’ i”. 11W Sessions Jucigr and Presàtiiw uifict-r. Fast 1 ra I. t’)Ufl. t iamkhandi. in S.C.No.Q2 2005 acquitting the rrspindrnts a eused mr the otTt’na- punishable under Sections Jt _‘ rt’ad ith 34 of IPU. This appeal coming on for final hearing th da3. Subhash B.AdI, J, delivered the follo inc: JUDGMENT This appeal is b the State against the judgn.ent of acqulual dated 2H.02.200b passed in the cessions .J. ‘ch’u and Presiding Officer. F ast i’ntck (‘curt. .Jamkhti”i 1 . Hi S.c. \o.2 :2003. Accused No I Ktllapp i. S:” ci I appi inapur. a isel \ E3hu S ) C’ id Pl . r ‘t- sE cl c Cr pu I I 1 ett r ,et 1 1 PC a a - 4 - a a — 3 3; 3;— 45443 a 3 - 1 a (_ I (1 ;: •1 a 3: I a (Th D (I J a. -i I) t$ - 3; (1 4 - 33 C) (1 — a * — (I c - (I J ( — / • a I 4 Cl 3; 3; 3: - - - a - * a C) - C) :; E C C) — (- a 4 3; 3; 3; a 2. 3. 4 1 C) 3. a 3. — -‘ 2 p a 41 5 4 21) 3 9 a - a — o ‘C 2 (C r (Ca — C) * C’)a (C - 3 r ‘C C’ a C!- a a a C a 3. C) (C55 C 21 - 3; C C C 4 -j a a C) 1: C) C) (C C) - a C) C’) a (Ca. a - (2 3. a -Ja a r (C a a a 3D a C) — a 3; 3; (- I - — 3 — ,.- C) 4 4 a C! — a ‘- — - 3 C’ (2 C’ a a — a a j 21) - aaaa CC’ a C) C) 21 C’ ); 3. — a C a - a a — C) — :5 I * 3; (N J C 32 33 4 a C’ a 3 — 21 1 — 3; C’ C) : C_ C -_ a C) ! 2— — 4 3;; C 333; E a C dtceased as a result of hic lithe dec eased fell clo ii. P s. 1. C md 10 tried to sac him in arming his boc1 hmnd, li’’’ ever, lie breathed his last Sin. r it v;is niuln P.\\ telephoned \ftfflfl j4j’ Station. How ever. polin’ asked him to come to the police station on the next cia n:’ ‘rnina. Since there were no night service buses and the lint bus sas in the morning at 6.30 he left ant wodi ‘it o.3U t in and reached Mudhol at 8.30 an. P.W. 13 registered the complaint as per E’. P.S in Crime No.97, 2003 and sent the F.l.P is per Da P.10. P.W. 14 C.P I of Mudhol P.S went alonc with panchas. conducted inquest pant litiidfltd. sent bod to thc. postmortem, recorded the statement ‘S witnt’ssrs 1’.W.S Dr.Smt. Riornima Kattimani conciuc ted autops on thc i’csdv ol the dect—aseci and Qdve her pustniurtrrn rt port as per Fx.P ‘, d further opinioi as v r Lx P.7 inui tinz t at the c€ Sc I c.citl a duc tc hcl iiiduc ii ir hc rt (• I 5. P.W. 14 after completion of the investigation filed charge sheet. Learned Magistrate committed the case to the learned Sessions Judge. On committal, learned Sessions Judge secured the presence of the accused, framed the following charge for the offence punishable under Section 302 r/w Section 34 of I.P.C. That you on 28.06.2005 at about 10.00 p.m.. in the back veranda of Laxmidevi temple at Vantagodi village, with common intention did commit the murder of Shimashappa. Sb Venkappa by assaulting him with hands on his cheek, due to which, Bhimashappa fell down on the ground and died and, thereby, committed an offence punishable under Section 302 r/w Section 34 of I.P.C. and within the cognizance of this Court.” 6. Prosecution examined P.W.l to 14, marked Ex.P.I to Ex.P. 14. No evidence was lead on behalf of defence and no material objects were produced. 6 i. rhc tnal court consldcrinu thc cntin. idcn and clocumnus on iccord lout I I ‘Ii pr c. in I iucrI fitled to proc the charce fr a c I ‘ anst ti c ic i. I mci a mated the accused for th off n e punish ibic uncle t Sc- tion 302 r Section 34 of l.P.C h. The prosecution has relied on the t’b iden ‘e of P \k • iife of deceased Bhcemashappa and P Ws 3 a and 0 uhc re the brothers of P.W.7. In the complaint. P.W.3 does not refer to an morn except statinv th it tht accused c tmc ith a, intention to commit the murder ot dccc ased lie Ii i (cited to the presence of P \V.9 and P.W 10 P W 9 ha. n il portcd th asecfthc prosccutioi Tic. I iii sc 1 cc.c his idmitted that on the. datc fi thc Inc de nt. t í w usd1 )\ s 3 ) 10 aid seici 1 di i trson (iii icc i the ‘i 1 dlc n t I Ii s ls i tititI r p lir i tt to i mr rs t 1 Sir 7 admitted that when the accused No.1 slapped on the face of the deceased, deceased had not suffered any head injuries. The deceased fell down on his left shoulder and got up. Thereafter, accused No.2 assaulted on the cheek of the deceased and the deceased fell clown. 9. The charge framed by the learned Sessions Judge does not make any accusation against accused No.2 except stating that accused no. I assaulted on the cheek of the deceased and accused Nos. 1 and 2 had common intention. P.W.5 in his evidence has stated that. since the incident occurred at 10.00 p.m. and it was night. he telephoned to police and that the police informed him to come to the station on the nest day morning. Whereas, P.W. 13-P.S.I. states that he was not in the Police Station when the alleged call was made. but has denied of having received any such call in the police station. No station house diary is produced nor any material is produced to show that telephone call was received. The distance from the place of incident to Mudhol is 18 kms. According to P.W.5, S he left the village at 6.30 a.m. and he admits that he reached the police station at 8.30 a.m. He also admits that after writing Ex.P.5complaint. the police did not inform the contents of the complaint. It is also suggested to P.W.5 that all around the temple there were houses and shops and that the house of the accused is 500 metres away from the temple. In the complaint, no motive is alleged. In evidence, motive alleged is that the deceased was instrumental to create difference between accused No.1 and his wife and that the deceased was root cause for the wife of accused No.1 to desert accused No.1. But this motive is neither stated in the complaint nor an material is placed nor examined anyone. Even according to the complainant-P.W.5. what is alleged against the accused No. I is he slapped on the cheek of the deceased and he admits that deceased fell on shoulder. Whereas, P.W.8-Doctor who conducted the postmortem and issued Ex.P.6-report has opined that the cause for death is due to shock as a result of injury to the vital organ (brain). I, ID In the cross e xaminatioti of Pi& It is si iuc sir I nat fin the purpose of cunstruc 110 i c I estc rn s4 of iii .. mph.. stones and other buildinv a tel 1 us st . 1’ s iciniltied that the deceased ha I come alono tith P.W rid to rcach thc. deceased. the aceustd crt to doss i e ih 20 people. It has also come in the nidenw that accused tid the deceased used to sleep in the same U inpie ii. The prosecution has not proecl the mothe. h:i not proved the injury alleged to ha e been caused Ti3 the eused ciIiI also has not pi a ed thiat i hc dtcitli dti’ Its tb1 alleszc’cl assuult h the accused No.1. Eidence of P.W.3 clues ii”t show that then “as an’ motnc’ mr tilt an used to ‘orn.$lt tht r iurder of the deceased. It also dnts not ..ttggc st • arc tisc d c ould have ci ossed 20 pc’oplc who were tireaci; Ic 1 nns., and c uld hi as at 1rcI ti e (1(CLciSC(l .1 1 \ a c )UlcI lii c kc t • I)ts X. U in t lit said n ide ‘‘c md c s ne’ in . thc nidencc v 0 tic .r il •n’.’ u.s I. ill C Inca • ci 11. I0 12. Further. in the evidence of P.W.5 a suggestion is made that P.W.3 had collected the entire money from the deceased who had sold one acre land and mortgaged the house at Mudhol and that P.W.5 had not returned it. Though P.W.5 denied this suggestion, P.W.3 the own brother of P.W.5 in his cross-examination admits that there was a quarrel between the deceased and P.W.5 in connection with money and deceased had set fire to the cattle shed belonging to P.W.5 and in that incident the cattle of P.W.5 had sustained burn injuries. This shows that p.W.5 had some grudge on the deceased. 13. But it is not the case of the prosecution that P.W.5 has assaulted the deceased. However as far as accused are concerned, neither motive is proved nor overt act is proved, or presence is proved at the scene of occurrence. 14. In these circumstances, the trial court on proper appreciating the entire evidence has acquitted the accused. We H do not find any good reason to interfere with the judgment of acquittal passed by the trial court. 15. Accordingly Appeal is dismissed. Sd! JUDGE Sd! 3IJDGE mkc