- 1 - NC: 2025:KHC-D:3825 CRL.A No. 100166 of 2017 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 25TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MS. JUSTICE J.M.KHAZI CRIMINAL APPEAL NO. 100166 OF 2017 (A) BETWEEN: 1. STATE OF KARNATAKA REPRESENTED BY THE POLICE SUB-INSPECTOR AMBIKANAGAR POLICE STATION, HALIYAL CIRLCE, HALIYAL THROUGH THE ADDL. STATE PUBLIC PROSECUTOR ADVOCATE GENERAL OFFICE HIGH COURT OF KARNATAKA DHARWAD BENCH …APPELLANT (BY SRI. JAIRAM SIDDI HCGP,) AND: 1. BAMMU @ BOMMU PONDE AGE:40 YEARS, OCC:AGRICULTURE 2. VITTAL TUKARAM PONDE AGE:MAJOR OCC:AGRICULTURE 3. DHAKUBAI TUKARAM PONDE AGE:50 YEARS, OCC:HOUSEHOLD Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:3825 CRL.A No. 100166 of 2017 4. PARASHURAM SUBBANNA KAMEKAR AGE:36 YEARS, OCC:AGRICULTURE, 5. VASANT RAMU ONDAGE AGE:25 YEARS, OCC:AGRICULTURE, 6. DHOLU TUKARAM PONDE AGE:29 YEARS, OCC:AGRICULTURE, 7. GANGUBAI BHIKKU PONDE AGE:40 YEARS, OCC:HOUSEHOLD ALL ARE RESIDENT OF CHANDRASURYAVADA BALASHETTYKOPPA …RESPONDENTS (BY SRI. A .P .MURARI, ADVOCATE FOR R1 TO R7) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (1) AND (3) OF CR.P.C., SEEKING TO GRANT SPECIAL LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 13.02.2017 PASSED BY THE LEARNED J.M.F.C., HALIYAL IN C.C.NO.153/2011 AND TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 13.02.2017 PASSED BY THE JMFC, HALIYAL IN C.C.NO. 153 OF 2011 AND TO CONVICT THE RESPONDENT /ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 143, 144, 147, 148, 323, 324, 355, 504, 506 READ WITH SECTION 149 OF IPC, IN THE INTEREST OF JUSTICE AND EQUITY - 3 - NC: 2025:KHC-D:3825 CRL.A No. 100166 of 2017 THIS CRIMINAL APPEAL, HAVING BEEN HEARD AND RESERVED ON 29.08.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MS. JUSTICE J.M.KHAZI JUDGMENT (PER: THE HON'BLE MS. JUSTICE J.M.KHAZI) This appeal filed under Section 378(1) and (3) of the Code of Criminal Procedure (for short, ‘Cr.P.C’), is by the State challenging the judgment and order passed by the Civil Judge & JMFC, Haliyal in C.C.No.153/2011 acquitting the respondents/accused for the offences punishable under Sections 143, 144, 147, 148, 323, 324, 355, 504, 506 R/w 149 of IPC. 2. For the sake of convenience parties are referred to by their ranks before the Trial Court. 3. A charge sheet came to be filed against the accused Nos.1 to 3, 6 to 9 for the offences punishable under Sections 143, 144, 147, 148 323, 324, 355, 504, 506 R/w 149 of IPC. - 4 - NC: 2025:KHC-D:3825 CRL.A No. 100166 of 2017 4. In respect of incident dated 07.12.2010 a complaint came to be filed by Navalu Babu Mishale stating that on the allegation that their cattle had trespassed into the lands of their relative Bikku Bagu Konde and destroyed crops the crops. In this regard on 07.12.2010 at 8-00 p.m. a panchayat was held. Accordingly, they went to the place of meeting. As soon as the meeting started, accused Nos.1 to 8 started quarreling and assaulting them. Accused No.6-Parashuram and accused No.7- Vasant Ramu caught hold of the complainant and accused No.1-Bammu assaulted complainant with a club on his fore head. Accused No.2- Vittal also assaulted him. Accused No.7-Vasant Ramu assaulted complainant’s brother Janu Mishale (CW5) on his fore head. Accused No.4-Sakku Bhikku Ponde assaulted (CW5) Janu Mishale with club on his left cheek and right hand. 4.1 Accused No.3-Dhakubai Tukaram Ponde assaulted CW7 Sakkubai with a club on her fore head and accused No.5- Bagu Vannu Ponde with hands. Accused No.2-Vittal Ponde assaulted CW6 Dondu Mishale with - 5 - NC: 2025:KHC-D:3825 CRL.A No. 100166 of 2017 sickle on his head and accused No.1-Bammu Ponde assaulted him with a stone near his neck. All the accused person abusing them in filthy language and gave threat saying that they would be eliminated. When the meeting starting accused No.9-Gangubai demanded CW4 Janu Mishale as to why he has called the meeting and assaulted him with chappal. 4.2 One Balashetty Koppad and Demanna Gadekar intervened and pacified the quarrel. All of them traveled in the 108 Ambulance which had come to the spot and took treatment at Government Hospital, Haliyal. The motive for accused persons to assaulted them was that in the panchayat elections they did not support the wife of accused No.1 Bammu Ponde and on the allegations that the cattle belonging to complainant had spoiled the crops raised in the lands of accused. 5. Based on the complaint, the concerned police registered the case in Crime No.8/2010. The injured have taken treatment at Government Hospital, Haliyal. After - 6 - NC: 2025:KHC-D:3825 CRL.A No. 100166 of 2017 detailed investigation the concerned police have filed charge sheet against accused Nos.1 to 3, 6 to 9. 6. Accused Nos.1 to 3, 6 to 9 have pleaded not guilty to charges leveled against them and claimed trial. 7. In support of the prosecution, PWs.1 to 14 are examined, Exs.P1 to 11 and MOs.1 to 10 are marked. 8. During the course of their statement under Section 313 of Code of Criminal Procedure, accused have denied the incriminating evidence lead by the prosecution. 9. Accused have not lead any defence evidence. 10. The Trial Court acquitted the accused. 11. Challenging the same the State has filed this appeal contending that the impugned judgment and order is contrary to law, fact of the case and evidence on record and as such it is liable to be set aside. PW1, 3 to 6 are injured witnesses. They have specifically stated about the overt acts of each of the accused persons and abusive - 7 - NC: 2025:KHC-D:3825 CRL.A No. 100166 of 2017 words used by them. All of them have identified weapons-MOs 1 to 7 and torn clothes at MO-8 to 10. Their evidence is corroborated by PW12 the medical officer who has examined and treated them and issued injury certificates at Ex.P6 to 10. He has specifically stated that the injuries sustained are possible, if assaulted with MO 1 to 7. The trial Court has not properly appreciated their evidence and the documents. The trial Court has given much importance to the evidence of PW9 to 11 who have turned hostile and thereby discarded the testimony of injured eye witnesses. 11.1 The trial Court has wrongly acquitted the accused on the ground that labels were not affixed on MOs 1 to 10 with the signature of panch witness PW2 and he is the relative of the injured. The reasons assigned are not sustainable. It is contrary to the decision of the Hon’ble Apex Court and this High Court wherein it is held that mere interestedness and relationship perse is not a ground to discard the evidence of injured. It only requires scrutiny of their evidence cautiously. The evidence placed - 8 - NC: 2025:KHC-D:3825 CRL.A No. 100166 of 2017 on record establish the guilt of the accused beyond reasonable doubt. The impugned judgment and order calls for interference by this Court and hence the appeal. 12. On the other hand, learned counsel for accused supported the impugned judgment an order and sought for dismissal of the appeal. 13. Heard the arguments and perused the record. 14. Thus, it is the definite case of the prosecution that the cattle of complainant family had trespassed into the land of accused persons and destroyed crops and in this regard a panchayat was held and in the said panchayat accused persons assaulted complainant and other witnesses who are examined as PWs.1, 3 to 8. The trial Court has disbelieved the evidence of these witnesses on the ground that they are close relatives and independent witnesses have turned hostile and not supported them. As held in several decisions of the Hon’ble Surpeme Court mere fact that the witnesses are close relatives is not a ground to disbelieve their evidence. - 9 - NC: 2025:KHC-D:3825 CRL.A No. 100166 of 2017 Rule of caution require that their evidence is scrutinized carefully and rule out false implication. 15. No doubt PWs.1, 3 to 8 are close relatives. But at the same time they are injured in the incident in question. In fact defence admit that they have sustained injuries, but come up with an explanation that while transporting paddy in the bullock cart during night time, they have fallen down and sustained injuries. In fact suggestions to this effect are made to the medical officer and also to PWs.1, 3 to 8. Of course, initial burden is on the prosecution to prove the incident and that PW1, 3 to 8 have sustained injuries. On the other hand it is for the accused to probabalize that the injuries sustained by PW1, 3 to 8 are due to fall from bullock cart while transporting paddy. 16. Throughout PWs.1, 3 to 8 have consistently deposed that on the allegations that their cattle trespassed in the land of accused person and destroyed crops a panchayat was held and even before they were - 10 - NC: 2025:KHC-D:3825 CRL.A No. 100166 of 2017 questioned, accused No.9 assaulted PW3 with a chappal and at this stage accused No.6 instigated the remaining accused to assault the complainant and his family members. Accused Nos.1 and 2 caught hold of PW1 and accused No.1 assaulted with a stone on his fore head. Accused Nos.7 and 8 assaulted PW4 with club on his eye. Accused No.2 and 7 assaulted PW5 with a sickle on his head. Accused No.3 and 5 assaulted PW6 with the club on her fore head and all of them abused the complainant and others. It appears knowing about the incident police came to the spot and the injured were taken to the hospital and treated. 17. PWs.1, 3 to 8 have identified the material objects seized in this case as the one used by the accused persons to assault them. 18. The accused persons have also taken defence that accused No.6 is the President of Village Forest Committee and he used to object them from cutting the trees. Of course, they have denied the said suggestion. - 11 - NC: 2025:KHC-D:3825 CRL.A No. 100166 of 2017 They have also denied that they suspected accused persons indulging in black magic and for this reason also their relationship was not cordial. According to the prosecution, the cattle of these witnesses allegedly trespassing into the land of accused persons and destroying the crops and in that connection panchayat was called was the motive for the accused persons to assault PWs.1, 3 to 8. Even though they have admitted that usually they transport paddy in the bullock carts but denied that while so doing they fell down and sustained injuries. 19. It is relevant to note that PW.6 Saggubai is aged lady and PW8 is the woman. It is doubt full whether they would also travel on the load of paddy in a bullock cart during night time, especially when other men folk were present in the family to do the said work. Even though a suggestions made to PW.12-Dr.Giridhar Achari that the injuries sustained by PW1, 3 to 8 are possible if a person falls from bullock cart, no suggestions made to him - 12 - NC: 2025:KHC-D:3825 CRL.A No. 100166 of 2017 that in fact the injuries sustained by PW1, 3 to 8 are due to fall from the bullock cart. 20. PW.9-Demani Govind Gadekar, PW10- Bhagu Lakku Shelke and PW.11-Dondu Vitthu Yadge are cited as eye witnesses to the incident. Though they have stated that they know the accused person and CWs.1, 4 to 10 (which includes PWs.1, 3 to 8), they have stated that they have not seen the incident. During their cross examination they have denied that they were present when the incident took place and seen the accused persons assaulting and abusing them. 21. It is pertinent to note that the accused persons as well as the injured are resident of same village. They are also related. Such being the case, the possibility of these witnesses being tutored by the accused persons not to speak against them cannot be ruled out. Merely because there is no support from the independent witnesses the interested testimony of injured cannot be discarded, unless and until the defence establish that they - 13 - NC: 2025:KHC-D:3825 CRL.A No. 100166 of 2017 are being falsely implicated. The incident took place on 07.12.2010 at 8.00 p.m. The injured were taken to the hospital at 10.30 p.m. The complaint is recorded in between 2 to 3 a.m. of 08.12.2010. The learned magistrate has received the FIR at 5.30 p.m. on 08.12.2010. There is no inordinate delay in filing the complaint. Consequently there was no chance of the injured conspiring to falsely implicated to the accused persons. 22. PWs.1, 3 to 8 are consistent in their assertion that it was accused person who assaulted them. They have also identified the material objects with which they were assaulted. In fact PW2 who is witness to the spot mahazar has clearly stated that the police seized the material objects from the spot. Even though PW1 and 2 have stated that they do not know what is written in the complaint at Ex.P1 and mahazar at Ex.P2 respectively, their evidence corroborate with the contents of these documents. Having regard to the fact that PW1, 3 to 8 have identified the material objects, mere fact that the - 14 - NC: 2025:KHC-D:3825 CRL.A No. 100166 of 2017 I.O. has not chosen to paste slips on them with the signatures of the mahazar witnesses would not belie the prosecution case. Since testimony of PW1, 3 to 8 is cogent, consistent and reliable, mere fact that PWs.9 to 11 have not supported the prosecution would not affect their credibility. 23. PW.13- Krishna Avadani is the head Constable who registered the case on the basis of complaint filed by PW1. He has also visited to the spot, drawn the mahazar and seized four clubs, a stone, a sickle, chappal and three blood stained shirts through mahazar. 24. PW.14-Kallappa Nadkarni has conducted further investigation and filed charge sheet. Except suggesting that he has not recorded statements of any of the witnesses and has not collected the injury certificates and that he has filed charge sheet falsely implicating the accused, nothing is elicited during his cross examination. No suggestions are made to him that PWs.1, 3 to 8 sustained injuries due to fall from bullock cart etc.. - 15 - NC: 2025:KHC-D:3825 CRL.A No. 100166 of 2017 25. Through the oral and documentary evidence placed on record, the prosecution has proved allegations against accused beyond reasonable doubt. On the other hand, the defence has failed to demonstrate that they are falsely implicated. The findings of the trial Court is inconsistent with the evidence lead by the prosecution and as such perverse and liable to the set aside and the accused persons are liable to be convicted for the offences punishable under Sections 323 and 324 read with Section 34 IPC. 26. However, the ingredients of the offences punishable under Sections 143, 144, 147, 148, 149 and 355 of IPC are not made out and accordingly the following: ORDER (ii) Appeal filed by the State under Section 378(1) and (3) of Cr.P.C is partly allowed. (iii) The judgment and order dated 13.02.2017 in CC No.163/2011 on the file of JMFC Haliyal is set aside. - 16 - NC: 2025:KHC-D:3825 CRL.A No. 100166 of 2017 (iv) Accused No.1 to 3 and 6 to 9 are convicted for the offences punishable under Sections 323 and 324 R/w Section 34 of IPC. Sd/- (J.M.KHAZI) JUDGE SMP List No.: 19 Sl No.: 1 CT-NI - 17 - NC: 2025:KHC-D:3825 CRL.A No. 100166 of 2017 IN THE HIGH COURT OF KARNATAKA AT DHARWAD [STATE OF KARNATAKA VS. BAMMU @ BOMMU PONDE AND OTHERS] 19.03.2025 (VIDEO CONFERENCING / PHYSICAL HEARING) CORAM: HON'BLE MS. JUSTICE J.M.KHAZI ORAL ORDER ON SENTENCE Accused No s.1 to 3, 6 to 9 are produced through video conferencing. Learned counsel for accused Nos.1 to 3 and 6 to 9 and learned High Court Government Pleader also present through video conferencing. Heard accused Nos.1 to 3 and 6 to 9 regarding sentence. It is submitted by the learned counsel for accused that the incident has taken place in a spur of moment when the meeting was held to resolve the dispute of cattle of complainant trespassing into the land of accused and destroying the crops. This is the first offence committed by them and lenient view may be taken. On the other hand learned HCGP prays to impose appropriate punishment on the accused persons. Even though the charge sheet is filed for the offences punishable under Sections 143, 144, 148, 323, 324, 355, 504, - 18 - NC: 2025:KHC-D:3825 CRL.A No. 100166 of 2017 506 r/w Section 149 I.P.C, accused Nos.1 to 3 and 6 to 9 are convicted only for the offences punishable under Section 323 and 324 I.P.C. The punishment prescribed for the offence under Section 323 I.P.C is imprisonment of either description for a term which may extend to one year or with fine which may extend to Rs.1,000/- or with both. The punishment prescribed for the offence under Section 324 I.P.C is imprisonment of either description for a term which may extend to three years or with fine or with both. As rightly submitted by the learned counsel for accused that the incident in question took place in the meeting held in the village regarding the cattle belonging to complainant trespassing the land of accused persons and destroying the crops. There are no previous antecedents of accused persons involving in any criminal activity. Taking into consideration these aspects, this Court is of the considered opinion that sentencing accused to pay fine with default sentence would be sufficient to meet the ends of justice and accordingly, the following: - 19 - NC: 2025:KHC-D:3825 CRL.A No. 100166 of 2017 ORDER (i) Accused Nos.1 to 3 and 6 to 9 are sentenced to pay fine of Rs.500/- each in default to undergo simple imprisonment for 15 days each for the offence punishable under Section 323 I.P.C. (ii) Accused Nos.1 to 3 and 6 to 9 are sentenced to pay fine of Rs.1,000/- each in default to undergo simple imprisonment for one month each for the offence punishable under Section 324 I.P.C. (iii) If fine is paid the accused shall be released forthwith. (iv) The Registry is directed to furnish a set of copy of this judgment and order to accused Nos.1 to 3 and 6 to 9 free of cost. (v) Send a copy of this order to the trial Court through e-mail. Sd/- (J.M.KHAZI) JUDGE RR