- 1 - CRL.A No.100277/2021 C/w. CRL.A No.100372/2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 9th DAY OF APRIL, 2025 PRESENT THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND THE HON'BLE MR. JUSTICE G BASAVARAJA IN CRL.A.NO.100277/2021 BETWEEN: YALLAPPA RAYAPPA BABALI AGE. 38 YEARS, OCC. AGRICULTURE R/O. MELAVANKI, TQ. GOKAK, DIST. BELAGAVI. …APPELLANT (BY SRI. A.M. GUNDAWADE, ADVOCATE) AND: STATE OF KARNATAKA BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD BENCH, AT DHARWAD THROUGH PSI GOKAK RURAL POLICE STATION. …RESPONDENT (BY SRI. ASHOK T. KATTIMANI, AGA) CRIMINAL APPEAL NO.100277 OF 2021 (A) C/W CRIMINAL APPEAL NO.100372 OF 2022 (A) Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA - 2 - CRL.A No.100277/2021 C/w. CRL.A No.100372/2022 THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C., SEEKING TO CALL FOR THE RECORDS FROM XII-ADDITIONAL DISTRICT AND SESSIONS JUDGE, BELAGAVI (SITTING AT GOKAK) PERTAINING TO SESSIONS CASE NO.231/2018 AND TO PASS A JUDGMENT OF ACQUITTAL BY SETTING ASIDE JUDGMENT OF CONVICTION DATED 08.09.2021 AND ORDER OF SENTENCE DATED 14.09.2021 PASSED AGAINST THE APPELLANT/ACCUSED NO.1 IN SESSIONS CASE NO.231/2018 BY XII ADDITIONAL DISTRICT AND SESSIONS JUDGE, BELAGAVI (SITTING AT GOKAK) FOR THE ALLEGED OFFENCES UNDER SECTION 326 OF IPC. IN CRL.A.NO.100372/2022 BETWEEN: STATE OF KARNATAKA REPRESENTED BY THE THE POLICE SUB-INSPECTOR, GOKAK RURAL POLICE STATION, GOKAK DISTRICT BELAGAVI THROUGH THE ADDL. STATE PUBLIC PROSECUTOR, ADVOCATE GENERAL OFFICE, HIGH COURT OF KARNATAKA, DHARWAD BENCH. …APPELLANT (BY SRI. ASHOK T. KATTIMANI, AGA) AND: 1. YALLAPPA RAYAPPA BABALI AGE. 35 YEARS, OCC. AGRICULTURE - 3 - CRL.A No.100277/2021 C/w. CRL.A No.100372/2022 2. VITTAL BALAPPA BABALI AGE. 70 YEARS, OCC. AGRICULTURE, 3. SIDDALING VITTAL BABALI AGE. 27 YEARS, OCC. AGRICULTURE, 4. LAKKAPPA YALLAPPA BABALI AGE. 35 YEARS, OCC. AGRICULTURE, 5. BHIMAPPA SIDDAPPA BABALI AGE. 30 YEARS, OCC. AGRICULTURE, ALL ARE R/O. MELAVANKI, TQ. GOKAK-591218. …RESPONDENT (BY SRI. A.M.GUNDAWADE, ADVOCATE FOR R1 TO R5) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) OF CR.P.C., SEEKING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL OF ACCUSED NO.2 TO 5 CONVICT IN RESPECT OF ACCUSED NO.1 DATED 08.09.2021 PASSED BY THE XII ADDITIONAL DISTRICT AND SESSION JUDGE SITTING AT GOKAK IN S.C. NO.231/2018 AND TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 08.09.2021 PASSED BY THE XII ADDITIONAL DISTRICT AND SESSION JUDGE SITTING AT GOKAK IN S.C.NO.231/2018 AND TO CONVICT AND SENTENCE THE RESPONDENT ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 143, 147, 148, 341, 323, 324, 307, 109, 504 AND 506 R/W. 149 OF IPC. THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 28.03.2025, COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING: - 4 - CRL.A No.100277/2021 C/w. CRL.A No.100372/2022 CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND HON'BLE MR. JUSTICE G BASAVARAJA CAV JUDGMENT (PER: THE HON'BLE MR. JUSTICE G BASAVARAJA) These appeals are against the judgment dated 8th September 2021 passed in SC No.231 of 2018 by the XII Additional District and Sessions Judge, Belagavi, sitting at Gokak, (for short, herein referred to as the “trial Court”) whereby accused No.1 came to be convicted for the office punishable and Section 326 of Indian Penal Code and sentenced to undergo a simple imprisonment for a period of three months and to pay a fine of ₹42,000/-, in default of payment of fine, accused No.1 shall undergo simple imprisonment for a period of six months. It was further ordered that out of the final amount, Rs.40,000/- is awarded as compensation to PW1. Further, accused 2 to 5 were acquitted not guilty of offences charged against them. - 5 - CRL.A No.100277/2021 C/w. CRL.A No.100372/2022 2. For the sake of convenience, the parties herein are referred to as per their rank before the trial Court. 3. It is the case of the prosecution that Gokak Rural Police submitted charge sheet against accused for the offence punishable under Sections 143, 147, 148, 341, 323, 324, 307, 109, 504 and 506 read with Section 149 of Indian Penal Code. 4. It is alleged by the prosecution that on 25th February 2017 at about 1.00 PM, in the land bearing Sy.No.595 of Melavanki village, Gokak Taluk, belonging to the family of PWs1 and 2, the accused, forming an unlawful assembly, destroyed the sugarcane crop through earth excavator (JCB), in the land of the complainant. Then, the complainant and CWs6, 7, 10 and 11 questioned the same with the accused as to why sugarcane crop is being destroyed and that there is an order of stay by the Court. Then the accused being enraged, abused them in filthy language. In the scuffle, accused No.2 caught hold of the complainant and accused No.3 abated accused No.1 - 6 - CRL.A No.100277/2021 C/w. CRL.A No.100372/2022 to kill him. With an intention to commit murder, the accused No.1 assaulted the complainant with stone on the left side of his head, accused 4 and 5 assaulted with hands and also threatened CWs.6 to 11 that they will kill them. By causing intimidation thereby committed the alleged offence. 5. After filing the charge-sheet, cognizance was taken against the accused for the alleged commission of offences and a case came to be registered in CC No.29 of 2017. After committal to the Sessions Court, case came to be registered in SC No.231 of 2018. Upon hearing charges, trial Court framed charges for alleged commission of offences against the accused and the same were read over and explained to the accused in the language known to them. Having understood the same, accused pleaded not guilty and claimed to be tried. 6. To prove the case of the prosecution, in all, seven witnesses have been examined as PWs1 to 7, seven documents marked as Exhibits P1 to P7 and five material - 7 - CRL.A No.100277/2021 C/w. CRL.A No.100372/2022 objects have been marked as MOs1 to 5. On completion of prosecution site evidence, statement of the accused under Section 313 of the Code of Criminal Procedure came to be recorded. Accused have totally denied the incriminating evidences appearing against them, but they have not chosen to any defence evidence. But to prove their case, the portion of statement of PW2 is marked as Exhibit D1. Having heard the arguments on both sides, trial Court convicted accused No.1 for commission of offence under Section 326 of Indian penal code, and sentenced him to undergo simple presentment for a period of three months and to pay a fine of ₹42,000/-, in default of payment of fine, the accused no.1 shall undergo simple imprisonment for a period of six months. Out of the fine amount, ₹40,000/- is awarded as compensation to PW1. Accused 2 to 5 were acquitted of the offences alleged against them. 7. Being aggrieved by the impugned judgment, Appellant/accused No.1 has preferred Criminal Appeal No.100277 of 2021 seeking setting aside of the judgment - 8 - CRL.A No.100277/2021 C/w. CRL.A No.100372/2022 of conviction for alleged offence punishable under Section 326 of Indian Penal Code. State has preferred Criminal Appeal No.100372 of 2022 aggrieved by the Judgment and Order of acquittal passed against accused 2 to 5 and seeking conviction of the accused No.1 and accused 2 to 5 for the offence punishable under Sections 143, 147, 148, 341, 323, 324, 307, 109, 504 and 506 read with Section 149 of Indian Penal Code. 8. Shri Ashok T Kattimani, Additional Government Advocate appearing for the appellant-State would submit that the judgment of conviction passed against accused No.1 is a lesser punishment and the acquittal of accused 2 to 5 is contrary to law and facts on evidence on record. He submits that there is a conclusive evidence available against accused 2 to 5, which was applied in respect of accused No.1, but the same has not been applied to accused 2 to 5 and thereby convicting only accused No.1 for the offence punishable under Section 326 of Indian Penal Code is not correct, even though there were eye- - 9 - CRL.A No.100277/2021 C/w. CRL.A No.100372/2022 witnesses and their version were not concerned by the trial Court. Eye-witness i.e. Mallikarjuna, has specifically stated as to occurrence of incident, time and place as also other details with respect to other accused, but the trial court, without considering these aspects, has acquitted accused 2 to 5 and confirmed lesser punishment on accused No.1 under Section 326 of Indian Penal Code, which is not sustainable in the eye of law. 9. He would further submit that the accused have not denied the incident and have also not denied that they were instigated in the incident. In the statement recorded under Section 313 of the Code of Criminal Procedure, the accused have not explained the circumstances under which the incident had occurred and failing to explain the same, would result in drawing adverse inference against the accused. He submits that it is the duty of the accused while making Statement under Section 313 of Code of Criminal Procedure explaining incriminating circumstances occurred against them. The trial Judge has not taken the - 10 - CRL.A No.100277/2021 C/w. CRL.A No.100372/2022 above facts and circumstances while assigning the reasons in the judgment and thereby erred in acquitting the accused 2 to 5. Further, it is submitted that the spot sketch and spot mahazar clearly depict that the incident in question has occurred and the trial Court did not mention with respect to accused 2 to 5 under which Section they have been released and further the accused No.1 is convicted only for the offence punishable under Section 326 and not under Section 307 of Indian penal code, which is an error. The trial Court ought to have convicted accused taking into consideration the evidence of PW1 to 6 and the injured eye-witness of PW2 and also spot mahazar Exhibit P3(d)-spot sketch and failing to consider the same has prejudiced the interest of the prosecution. He would submit that the trial Court has not drawn the presumption which are mandatory and evaluated the evidence and decided the case like ordinary criminal case and has mechanically acquitted accused. Had proper presumptions been made and drawn by evidence on record, the same would prove to the act of the accused. He therefore - 11 - CRL.A No.100277/2021 C/w. CRL.A No.100372/2022 submits that the trial Court erred in acquitting accused 2 to 5 and convicting accused No.1 only under Section 326 of Indian Penal Code and hence, the same calls for interference by the Court. On these grounds, he sought to allow the appeal. 10. On the other hand, Sri A.M. Gundawade, learned Counsel appearing for accused would submit that the trial Court has properly appreciated the evidence on record in accordance with law and facts, and absolutely there are no grounds to interfere with the impugned judgment of acquittal against accused 2 to 5 and accordingly, sought for dismissal of the appeal preferred by the State. 11. As regards, appeal preferred by accused No.1 in Criminal Appeal No.100277 of 2021 is concerned, Sri Gundawade would submit that appellant-accused No.1 is an innocent person and has not committed any offence as alleged by the prosecution and hence he is entitled to be acquitted for the offence punishable under Section 326 of the Indian Penal Code setting aside the impugned - 12 - CRL.A No.100277/2021 C/w. CRL.A No.100372/2022 judgment of conviction. He would submit that if the evidence of PW1 is taken to consideration, when he made hue and cry, his family members came to the spot which gives the impression that the other alleged eye-witnesses were not present at the spot and have not seen the alleged act and as to how the injured sustained the injury. It only shows that the witnesses cited by the prosecution at interested witnesses. Though PW1 mentioned the name of eleven persons and alleged that all have committed the alleged offences and though the trial Court has not believed the same, but has acquitted only accused 2 to 5. As per the contents of Exhibit P1 accused have made use of JCB from 10.00 am to 1.00 pm on 24.02.2017 and the alleged assault has taken place on 25.02.2017 at about 10.00 am, and that the JCB was used for three hours. Had the JCB was used for three hours, there would be huge loss and the land shows the mark of use of JCB. But nothing is forthcoming in this regard. Moreover, it is doubtful that MOs2 to 5 are clothes that belong to PW1 and were seized at the time of incident. Allegedly, clothes - 13 - CRL.A No.100277/2021 C/w. CRL.A No.100372/2022 were produced in the Police Station by PW2. There is no evidence to show as to how PW2 came in possession of the said clothes. As per the evidence of Doctor-PW6, the oozing of blood from the injuries is not forthcoming. Further, the evidence of PW6-Dr. M.G. Umarani is not of any help to the prosecution, since as per the evidence, the injured was brought by one Srikant B. Patil, but as per the Investigating Officer, the injured was taken to Hospital by Mallikarjun Benchinamaradi and Srikant Basavanthappa Biradar. He further submits that the prosecution has not produced any proof like CT scan or x-ray report with regard to alleged grievous head injury. Further, he submits that when the trial Court has disputed allegations against accused 2 to 5 as to the evidence of PW1, the same should have been followed against accused No.1, but on the other hand, the trial Court has convicted accused No.1 for the offence punishable under Section 326 of IPC, which is not sustainable. Further, he submits that in the cross-examination, PW1 has stated that there is a civil case pending before the court and in a bit of anger, he had - 14 - CRL.A No.100277/2021 C/w. CRL.A No.100372/2022 mentioned the names of eleven persons in the First Information Report. He has also admitted in his evidence that the accused also have obtained injunction order against him. The said evidence is not appreciated properly by the trial Court and has erred in convicting the accused No.1 for the offence punishable under Section 326 of Indian Penal Code. He would also submit that there is no evidence on record to show MO.1 is a deadly weapon. On all these grounds, he sought for allowing the appeal by setting aside the judgment of acquittal against accused No.1 for the offence punishable under Section 326 of Indian Penal Code. 12. Having heard the learned Counsel for the parties and on perusal of material placed before us, the following points would arise for our consideration in these appeals: 1. Whether the appellant/accused No.1-Yallappa Rayappa Babali has made out a ground to interfere with the judgment of conviction under Section 326 of Indian Penal Code and - 15 - CRL.A No.100277/2021 C/w. CRL.A No.100372/2022 sentenced the accused No.1 to simple imprisonment for three months and to pay fine of Rs.42,000/-? 2. Whether the impugned judgment of acquittal passed in respect accused 2 to 5 suffers from legal infirmities requiring this Court to intercede? 3. What order? 13. Our answer to the above points would be: Point No.1: in the affirmative; Point No.2: in the negative; Point No.3: As per final order. Regarding Points No.1 & 2: 14. Before considering the material on record, with regard to acquittal of accused 2 to 5 is concerned, it is necessary to refer to the judgments of Hon’ble Supreme Court with regard to scope and power of Appellate Court in appeals against the order of acquittal. - 16 - CRL.A No.100277/2021 C/w. CRL.A No.100372/2022 15. Before adverting to the actual facts of the case and appreciation of evidence, it is necessary to refer the dictum of Hon'ble Supreme Court regarding scope and power of Appellate Court in appeal against the order of acquittal. 16. In the case of MOTIRAM PADU JOSHI & OTHERS v. STATE OF MAHARASHTRA reported in 2018 SCC ONLINE SC 676, at paragraph 23 of the judgment, it is held thus: “23. While considering the scope of power of the appellate court in an appeal against the order of acquittal, after referring to various judgments, in Chandrappa v. State of Karnataka (2007)4 SCC 415, this Court summarised the principle as under:- “42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of - 17 - CRL.A No.100277/2021 C/w. CRL.A No.100372/2022 such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (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. - 18 - CRL.A No.100277/2021 C/w. CRL.A No.100372/2022 (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.” 17. In the case of MUNISHAMAPPA & OTHERS v. STATE OF KARNATAKA & CONNECTED APPEALS reported in 2019 SCC ONLINE 69, at paragraph 16 of the judgment it is held as under: “16. The High Court in the present case was dealing with an appeal against acquittal. In such a case, it is well settled that the High Court will not interfere with an order of acquittal merely because it opines that a different view is possible or even preferable. The High Court, in other words, should not interfere with an order of acquittal merely because two views are possible. The interference of the High Court in such cases is governed by well- established principles. According to these principles, it is only where the appreciation of evidence by the trial court is capricious or its conclusions are without evidence that the High Court may reverse an order of acquittal. The High Court may be justified in interfering where it finds that the order of acquittal is not in accordance with - 19 - CRL.A No.100277/2021 C/w. CRL.A No.100372/2022 law and that the approach of the trial court has led to a miscarriage of justice. …” 18. In the case of HARI RAM & OTHERS v. STATE OF RAJASTHAN reported in 2000 SCC ONLINE 933, at paragraph 4 of the judgment, it is observed thus: “4. Mr. Sushil Kumar Jain, the learned Additional Advocate General for the State of Rajasthan on the other hand contended that the power of the High Court while hearing an appeal against an order of acquittal is in no way different from the power while hearing an appeal against conviction and the Court, therefore was fully justified in re-appreciating the entire evidence, upon which the order of acquittal was based. The High Court having examined the reasons of the learned Sessions Judge for discarding the testimony of PWs 6 & 7 and having arrived at the conclusion, that those reasons are in the realm of conjectures and there has been gross miscarriage of justice and the mis-appreciation of the evidence on record is the basis for acquittal, was fully entitled to set aside an order of acquittal and no error can be said to have been committed. It is too well settled that the power of the High Court, while hearing an appeal against an acquittal is as wide and - 20 - CRL.A No.100277/2021 C/w. CRL.A No.100372/2022 comprehensive as in an appeal against a conviction and it had full power to re- appreciate the entire evidence, but if two views on the evidence are reasonably possible, one supporting the acquittal and the other indicating conviction, then the High Court would not be justified in interfering with the acquittal, merely because it feels that it would sitting as a trial court, have taken the other view. While re- appreciating the evidence, the rule of prudence requires that the High Court should give proper weight and consideration to the views of the learned trial Judge. But if the judgment of the Sessions Judge was absolutely perverse, legally erroneous and based on wrong appreciation of the evidence, then it would be just and proper for the High Court to reverse the judgment of acquittal, recorded by the Sessions Judge, as otherwise, there would be gross miscarriage of justice.…” 19. In the case of STATE OF RAJASTHAN v. KISTOORA RAM reported in 2022 SCC ONLINE 684, at paragraph 8 of the judgment it is held as under: “8. The scope of interference in an appeal against acquittal is very limited. Unless it is found that the view taken by the Court is impossible or perverse, it is not permissible to interfere with the finding of acquittal. Equally if two views are - 21 - CRL.A No.100277/2021 C/w. CRL.A No.100372/2022 possible, it is not permissible to set aside an order of acquittal, merely because the Appellate Court finds the way of conviction to be more probable. The interference would be warranted only if the view taken is not possible at all.” 20. In the case of MAHAVIR SINGH v. STATE OF MADHYA PRADESH reported in (2016)10 SCC 220, at paragraph 12 of the judgment, it is observed thus: “12. In the criminal jurisprudence, an accused is presumed to be innocent till he is convicted by a competent court after a full-fledged trial, and once the trial court by cogent reasoning acquits the accused, then the reaffirmation of his innocence places more burden on the appellate court while dealing with the appeal. No doubt, it is settled law that there are no fetters on the power of the appellate court to review, reappreciate and reconsider the evidence both on facts and law upon which the order of acquittal is passed. But the court has to be very cautious in interfering with an appeal unless there are compelling and substantial grounds to interfere with the order of acquittal. The appellate court while passing an order has to give clear reasoning for such a conclusion.” - 22 - CRL.A No.100277/2021 C/w. CRL.A No.100372/2022 21. With regard to offence punishable under Sections 143, 147, 148, read with Section 149 of Indian Penal Code is concerned, in Exhibit P1-complainant PW1- Ramesh Bhimappa Benchinamaradi, has not disclosed anything as to the unlawful assembly formed by the accused holding deadly weapons with an intention to commit riot. None of the material witnesses, including the Investigating Officer, has deposed anything as to the unlawful assembly formed by the accused. Accordingly, prosecution has failed to prove the guilt of the accused for commission of offences under Sections 143, 147, 148 read with Section 149 of Indian Penal Code. 22. As regards the offence punishable under Sections 341, 323, 324, 307, 109, 504 and 506 read with Section 149 of Indian Penal Code is concerned, in Exhibit P1- complaint, it is alleged that Accused 1 to 11 viz. Yallappa Rayappa Babali, Vittal Balappa Babali, Fakeeerappa Balappa Babali, Rayappa Vittal Babali, Siddalinga Vittala Babali, Rayappa Balappa Babali, Sannasiddappa Uthappa - 23 - CRL.A No.100277/2021 C/w. CRL.A No.100372/2022 Babali, Lakkappa Bhimappa Babali, Bhimappa Muthappa Babali, Lakkappa Yallappa Babali, and Bheemappa Siddappa Babali have formed an unlawful assembly, holding deadly weapons like stone, clubs and sickle and commenced quarrel with the complainant and abused him in filthy language. One Fakeeerappa and Vittal, caught hold of the complainant, then Accused No.1-Yallappa Rayappa Babali with an intention to commit murder, gave blow to the complainant with stone on the left side of his head. Rayappa Vittal Babali and Rayappa Balappa Babali, gave blow to PW1 with clubs. Sannasiddappa Utheppa Babali, Lakkappa Yallappa Babali, Bheemappa Muthappa Babali and others abated accused to kill PW1. On the basis of complaint-exhibit P1, Gokak Rural Police registered case in Crime No.29 of 2017 for commission of offences punishable and Sections 143, 147, 148, 341, 323, 324, 307, 109, 504, 506 read with Section 149 of Indian Penal Code against accused 1 to 11. After investigation, Investigating Officer submitted charge-sheet against accused No.1-Yallappa Rayappa Babali accused No.1-Vittal - 24 - CRL.A No.100277/2021 C/w. CRL.A No.100372/2022 Balappa Babali, accused No.3 Siddappa Vittal Babali who are shown as accused in FIR, accused No.4-Lakkappa Yallappa Babali who is shown as accused No.10 in FIR and accused No.5-Bheemappa Siddappa Babali, who is shown as accused No.11 in the FIR. Investigating Officer has not filed charge sheet against accused No.3-Fakirappa, accused No.4-Rayappa Vittal Babali, accused No.7- Rayappa Balappa Babali, accused No.8-Sannasiddappa Utteppa Babali, accused No.9-Bhimappa Mutheppa Babali on the ground that there is no evidence against them, and hence they have not been arrayed as accused in the charge-sheet. PW1 has deposed that accused Vittal Balappa Babali has caught hold of him and then accused No.1-Yallappa Rayappa Babali gave blow to the complainant on his head with a stone. Then accused No.4- Lakkappa Yallappa Babali, accused No.5-Bhimappa Siddappa Babali assaulted him with their hands. But, in Exhibit P1, it is stated that Fakeeerappa and Vittal have caught hold of PW1 tightly, then Yellappa gave blow to him with stone on the left side of his head, then Rayappa Vittal - 25 - CRL.A No.100277/2021 C/w. CRL.A No.100372/2022 Babali, Rayappa Balappa Babali have assaulted him with clubs. This evidence of PW1 is not consistent with the contents of Exhibit P1 complaint. Even the evidence of PW2-Mallikarjun Bhimappa and PW3-Srikanth Basantappa Biradar are also not consistent with evidence of PW1 and with contents of Exhibit P1. Exhibit P6-wound certificate does not reveal as to the names of the accused who are arrayed as accused in the charge sheet, as well as in the first information report. It has also come in the evidence that there is dispute between the accused and the complainant with regard to excavation of sand in the pit which is situated near the land of the complainant. In this regard, complainant also informed the same to the police. Therefore, the material witnesses are interested relative witnesses. Even the evidence of complainant has not been corroborated by other witnesses. Exhibit P6-wound certificate reveals that the injured was admitted to Hospital on 25th February, 2017 at 2.22 am with the history of assault on 25th February 2017 at 1.00 am. The age of the injury reveals that it is one and half hours old - 26 - CRL.A No.100277/2021 C/w. CRL.A No.100372/2022 injury. But, as per Exhibit P1, the alleged incident took place on 24th February, 2017 at 10.00 am. Subsequently, in the same complaint it is stated that the incident took place on 25th February, 2017 at 1.00 am. This inconsistent date of occurrence and time of incident has not been explained by the Investigating Officer. Prosecution has not produced CT Scan or X-ray to show the fracture of left tempera parietal region of scalp. Exhibit P6-wound certificate reveals that date of admission of the injured as on 24th February, 2017 and date of discharge on 04th March, 2017 at 4.27 pm. There is no mention of the names of the accused in the wound certificate. However, the Investigating Officer has not collected the case sheet maintained by the concerned hospital. Investigating Officer has also not explained anything as to non- production of case sheet of the injured. Even the discharge summary of the injury is also not produced by the Investigating Officer. There are material omissions and contradictions in the evidence of prosecution witnesses. In this regard, Exhibit D1 is also marked during - 27 - CRL.A No.100277/2021 C/w. CRL.A No.100372/2022 the cross-examination of PW2. Prosecution has failed to place cogent, corroborative, clinching, convincing, and trustworthy evidence before the Court. The trial Court has properly appreciated the evidence on record and acquitted accused 2 to 5. Whereas, the trial Court has not properly appreciated the evidence on record while convicting accused No.1 for the offence punishable under Section 326 of the Indian Penal Code. On re-appreciation, re- examination, re-consideration and re-evaluation of the entire material on record, we are of the considered view that the prosecution has failed to prove the guilt of the accused No.1 beyond all reasonable doubts. We do not find any error or illegality/infirmity in the impugned judgment of acquittal in respect of accused 2 to 5. Accordingly, we answer Point No.1 in the affirmative and point No.2 in the negative. Regarding Point No.3: 23. For the aforestated reasons and discussions, we proceed to pass the following: - 28 - CRL.A No.100277/2021 C/w. CRL.A No.100372/2022 O R D E R 1. Criminal Appeal No.100277 of 2021 preferred by the applicant-Accused No.1 is allowed; 2. Criminal Appeal No.100372 of 2022, preferred by the State is dismissed; 3. Judgment of Conviction and Order of sentence dated 08th September, 2021 passed in SC No.231 of 2018 by the XII Additional District & Sessions Judge, Belagavi sitting at Gokak convicting accused No.1 for the offence punishable under Section 326 of Indian Penal Code, is set aside; 4. Accused No.1 in SC No.231 of 2018 is acquitted of the offence punishable under Section 326 of Indian Penal Code; 5. The fine amount deposited by the accused No.1 is directed to be refunded to him on proper identification; - 29 - CRL.A No.100277/2021 C/w. CRL.A No.100372/2022 6. Judgment of acquittal dated 08th September, 2021 passed in SC No.231 of 2018 by the XII Additional District & Sessions Judge, Belagavi sitting at Gokak acquitting accused 2 to 5, is confirmed; 7. Registry to transmit the Trial Court Records along with the copy of this Judgment to the concerned Court forthwith. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE Sd/- (G BASAVARAJA) JUDGE Lnn Ct-cmu