THYAGARAJ @ THYAGI vs STATE OF KARNATAKA

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CRL.A No. 638 of 2015
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 9 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 638 OF 2015
BETWEEN:
1. THYAGARAJ @ THYAGI
S/O AVALAPPA
AGED 41 YEARS
2. A SHIVA
S/O AVALAPPA
AGED 35 YEARS
3. RAJANNA
S/O GOPALAPPA
AGED 45 YEARS
ALL ARE R/A CHINTAMANI TOWN
BEHIND RAILWAY STATION
CHIKKABALLAPUR DIST.
CHIKKABALLAPUR-562010
(NOW IN JUDICIAL CUSTODY AT
DISTRICT PRISON, CHIKKABALLAPUR)
…APPELLANTS
Digitally signed by
LAKSHMINARAYAN
N
Location: High
Court of Karnataka
(BY SRI. NITHIN GOWDA K. C., ADV. FOR
SRI. RAJESWARA P N., ADV.)
AND:
1. STATE OF KARNATAKA
BY CHINTAMANI RURAL POLICE STATION
CHINTAMANI-563125
…RESPONDENT
(BY SRI. K. NAGESHWARAPPA, HCGP)

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CRL.A. FILED U/S 374(2) CR.P.C BY THE ADV. FOR THE
APPELLANT PRAYING THAT THIS HON'BLE COURT MAY BE
PLEASED TO SET ASIDE THE ORDER DATED:27.5.2015,
PASSED BY THE PRL. DIST. & SESSIONS JUDGE,
CHIKKABALLAPUR, IN S.C.NO.110/2011 - CONVICTING THE
APPELLANT/ACCUSED NO.1 TO 3 FOR THE OFFENCES P/U/S
326 R/W 34 IPC.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE G BASAVARAJA
ORAL JUDGMENT
1. Appellants have preferred this appeal against the
judgment of conviction and order on sentence dated
27.05.2015 passed in SC.No.110/2011 by the Principal
District and Sessions Judge, Chikkaballapur (for short, 'the
Trial Court').
2. For the sake of convenience, the parties herein are
referred to as per their rank before the Trial Court.
3. Brief facts leading to this appeal are that, the Sub-
inspector of Police, Chintamani, submitted a charge sheet
against the accused for the offence punishable under
Sections 326 and 307 of IPC read with Section 34 of IPC.

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It is alleged by the prosecution that, on 15.07.2010 at
about 8.15 am, within the limits of Rural Police Station,
Chintamani when CW2 was digging channel to lay
pipelines/erect pipes, the accused came and told CW2 to
allow them to move the Tractor to their land. CW2
refused to leave way. Then accused No.2 picked-up
quarrel with CW2 and gave blow with long (machete) on
his head and left thigh, near left waist and left chin
voluntarily caused him grievous hurt. Accused Nos.1 and 3
assaulted CW2 with tomato plant sticks, caused injuries to
him. Thus, the accused have committed the alleged
offences.
4. After filing the charge sheet, case was registered in
CC.No.254/2011 and it was committed to the Court of
Sessions where it got registered in SC.No.110/2011.
5. Accused appeared before the Court and enlarged on
bail. On hearing, the Trial Court framed charges for the
alleged offences. Same was read over and explained to the

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accused. Having understood the same, accused pleaded
not guilty and claimed to be tried.
6. To prove the guilt of the accused, prosecution has
examined, in all, 11 witnesses as PWs.1 to 11. 10
documents were marked as Exs.P1 to P10 and 8 material
objects were marked as Mos.1 to 8. On closure of
prosecution side evidence, statement under Section 313
Cr.P.C. was recorded. Accused have totally denied the
evidence of prosecution witnesses. However, they did not
choose to lead any defence evidence on their behalf.
7. Having heard the arguments of both sides, the Trial
Court has acquitted the accused Nos.1 to 3 for the offence
under Section 307 r/w 34 IPC. However, the Trial Court
has convicted the accused Nos.1 to 3 for the offence under
Section 326 r/w 34 IPC and passed a sentence to undergo
rigorous imprisonment for a period of 4 years and pay a
fine of Rs.5,000/- each. Being aggrieved by the judgment

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of conviction and order on sentence, appellants have
preferred this appeal.
8. Sri Nithin Gowda K.C., Advocate appearing for
Sri Rajeswara P.N., on behalf of appellants would submit
that the Trial Court lightly brushed aside the infirmities,
improbabilities, contradictions and omissions in the
prosecution case. The impugned judgment is opposed to
all canons of law, facts and circumstances of the case and
is liable to be reversed and set aside. None of the
prosecution witnesses were able to identify the material
objects used for the commission of offence. There is a
delay of 3 months in seizure of weapons used for alleged
offence. After lapse of 4 months, alleged blood-stained
shirt was seized. None of the eye-witnesses have
supported to the case of the prosecution. Recovery
Mahazar witnesses also have not supported to the case of
the prosecution. X-ray is not produced. Even the
Radiology report is also not produced. The Investigating
Officer has not explained anything as to non-production of

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these material witnesses. The wound certificate does not
reveal as to the names of the accused. PW11, the medical
officer who treated the accused has also not whispered
anything against the accused. Though there is no cogent,
convincing and clinching evidence, the Trial Court has
convicted the accused which is not sustainable under law.
On all these grounds, it is sought to allow the appeal.
9. Per contra, the learned HCGP Sri Nageshwarappa K,
would submit that, PW4-the injured, has supported the
case of the prosecution. Same is substantiated by PW11-
the doctor and PW10-IO. The trial Court has properly
appreciated the evidence of record in accordance with law
and facts and sought for dismissal of the appeal.
10. Having heard the arguments on both sides and on
perused the materials placed before this Court, the
following points would arise for my consideration:
(i) Whether the appellants have made out
grounds to interfere with the impugned

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judgment of conviction and order on sentence
passed by the Trial Court?
(ii) What order?
11. My findings to the above points are as under:
Point No.1, in Affirmative.
Point No.2, as per final order.
12. I have examined the materials placed before this
Court. This case arises out of the complaint filed by PW1
as per Ex.P1 dated 15.07.2010. Same reads as hereunder:
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CRL.A No. 638 of 2015
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13. On the basis of complaint as per Ex.P1, the Rural
Police, Chintamani registered a case in Crime No.176/2010
against accused Nos.1 to 3 for the offence under Sections
307, 447 of IPC and submitted the FIR to the Court as per
Ex.P7 on 16.07.2010 at 08:10 am. PW1 is not only the
complainant but also an eye-witness to the incident. PW1
the material witness has not supported to the case of the
prosecution and has turned hostile. Even the Public
Prosecutor has treated this witness as hostile witness with

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the permission of the Court and cross-examined, but
during his cross-examination, PW1 has categorically
denied the contents of Ex.P1 and also seizure of weapons
said to have been used for the commission of alleged
offence.
14. PW2-Ramappa is the eye-witness has deposed in his
evidence that, the Galata/quarrel took place between the
accused and PW4 (CW2). He deposed that accused No.2
have assaulted PW4 with long (machete). Accused Nos.1
and 3 assaulted PW4 with tomato plant sticks. As a result,
PW4 fell. Then, the accused went away in a vehicle.
15. CWs.1 and 5 took CW2 to the Government hospital.
But he has not identified the weapons MOs.1 to 3. Hence,
this witness was treated as hostile witness partly with
permission of the Court and cross-examined him. In his
cross-examination also, the prosecution has failed to elicit
as to the identification of MOs.1 to 3.

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16. PW3-Shabbir is also one of the eye-witnesses, has
not supported to the case of prosecution. This witness also
treated as hostile witness by the learned Public Prosecutor.
During his cross-examination, he has categorically denied
the statement said to have been recorded by the IO under
Section 161 of Cr.P.C. which is marked as Ex.P4 and
P4(a).
17. PW4-B.Krishnappa, the injured deposed that about 4
years ago, one day at 08:15 am, he along with CWs.1 and
3 to 5 were erecting pipes in their land. By that time, all
the accused came and accused No.2 assaulted him with
long (machate) on his head. Accused No.1 also assaulted
him with same long on back side of the left leg. Then he
fell down. All the accused assaulted him with tomato plant
sticks on his left cheek, left hand and left waist. He has
deposed that, he has purchased the land of the accused
for Rs.80,000/-. For that reason, the accused assaulted
him. Further he has deposed that CW1, 3 and 4 have

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witnessed the incident and further deposed as to the
treatment taken by him in four hospitals.
18. PW5-Srinivasa, said to be attester to the mahazar as
per Ex.P2 has not supported to the case of the
prosecution.
19. PW6-G.Muniyappa and PW-7-Venkateshappa, said to
be the attesters to Ex.P5 have not supported to the case
of the prosecution.
20. PW8-G.S.Eshwar said to be attester to Ex.P6, has not
supported to the case of the prosecution.
21. PW9-Venkateshappa said to be attester to Ex.P2, has
not supported to the case of the prosecution.
22. PW10-K.G.Sathish, PSI has deposed as to his
investigation.
23. PW11-Dr.R.Shashikanth has deposed as to the
examination of the injured-PW4 and issuance of Ex.P8-
Wound Certificate.

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24. With regard to the offence under Section 447 of IPC
is concerned, the prosecution has not disclosed the survey
number in the complaint or in the mahazar or in the
evidence of prosecution witnesses. However, the
prosecution has produced Ex.P9. Ex.P9 reveals that, the
land bearing Survey No.104 of Nekkundi measuring 34
guntas, is standing in the name of Sri Nandishamurthy S/o
Munishyamappa, measuring 8 guntas 8 ana, Sri
Krishnappa S/o Late Munivenkatappa having 8 guntas 8
ana and others have 17 guntas. The name of the victim
i.e., PW4 is B.Krishnappa S/o Bhimanna, is not
forthcoming in Ex.P9 pahani extract. The IO has not
collected and produced the Pahani extract pertaining to
the land of PW4. PW4 has deposed in his evidence that he
Rs.
has purchased the land for 80,000/- from the accused.
Even names of accused is also not shown in the RTC
extract. The Investigating Officer has not produced any
document to show that PW4 is the owner of the land in
question or the same is disclosed in the complaint or the

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mahazar. Accordingly, prosecution has failed to prove the
commission of alleged offence under Section 447 read with
34 of IPC. The trial Court also not convicted the accused
under Section 447 read with Section 34 of IPC.
25. With regard to the offence under Section 307 of IPC
is concerned, the Trial Court has acquitted the accused.
However, Trial Court has convicted the accused for the
offence under Section 326 r/w 34 IPC. With regard to the
offence under Section 326 r/w 34 IPC is concerned, except
the sole interested testimony of PW4, none of the
witnesses have supported to the case of the prosecution.
PW4 has categorically stated before the Court that the
MOs.1 to 3 are not the weapons used for the commission
of offence. The alleged incident took place on 15.07.2010.
The IO has seized MOs.1 to 3 as per Ex.P5 on 07.09.2010.
Mahazar is conducted after lapse of 52 days from the date
of incident. The mahazar witnesses have not supported to
the case of the prosecution. The IO has conducted seizure

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mahazar of clothes on 30.10.2010 which is after lapse of
105 days from the date of incident.
26. Though the IO has seized the weapons on
07.09.2010, he has submitted the PF to the Court on
10.11.2010 and another PF No.120 is submitted to the
Court on 09.11.2010. Accordingly, the IO has failed to
comply with the mandatory provisions of Section 102 of
the Code of Criminal Procedure, 1973.
27. Viewed from any angle, absolutely, there is no
cogent, clinching, corroborating, trustworthy, legal
evidence before the Court to convict the accused for the
offence under Section 326 read with Section 34 of IPC.
However, the Trial Court has convicted the accused
without any evidence, which is not sustainable under law.
Accordingly, I answer Point No.1 in Affirmative.
Regarding Point No.2:
28. For the aforesaid reasons and discussions, I proceed
to pass the following:

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O R D E R
(i) Appeal is allowed ;
(ii) The Judgment of conviction and order on
sentence dated 27.05.2015 passed in
SC.No.110/2011 by the Principal District and
Sessions Judge, Chikkaballapur, is set aside;
(iii) Accused/Appellants are acquitted of the
offence under Section 326 read with Section 34
of IPC;
(iv) Bail bonds shall stands cancelled; The Trial
Court is directed to refund the fine amount if
any, deposited by the appellants;
The Registry is directed to communicate this order
along with Trial Court Records, to the concerned Court.
Sd/-
(G BASAVARAJA)
JUDGE
DHA
List No.: 1 Sl No.: 31