THE STATE OF KARNATAKA vs SHANTAPPA
- Court
- Karnataka High Court
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CRL.A No. 200190 of 2026
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
TH
DATED THIS THE 13 DAY OF OCTOBER, 2026
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE SUBRAMANYA RANGARAO
CRIMINAL APPEAL NO. 200190 OF 2026
(378(Cr.PC)/419(BNSS))
BETWEEN:
THE STATE OF KARNATAKA,
THROUGH FARAHATABAD P.S,
REPRESENTED BY THE,
ADDITIONAL STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA, KALABURAGI.
…APPELLANT
(BY SRI. ANILKUMAR NAVADAGI, ADDL.SPP)
AND:
1. SHANTAPPA
S/O CHANDRAMAPPA KOODALAGI,
AGE: 53 YEARS,
OCC: MEMBER OF ZILLA PANCHAYAT,
R/O KOODALAGI, TQ. JEWARGI, DIST. KALABURAGI,
NOW R/ AT PLOT NO.154,OPP. DOMINANT SCHOOL,
KARUNESHWAR NAGAR,KALABURAGI-585102.
2. RAVI S/O SHANKREPPA HOSAMANI,
AGE: 33 YEARS, OCC: GUTTEDAR WORK,
R/O MAYUR VILLAGE, TQ. JEWARGI,
DIST. KALABURAGI-585101.
Digitally signed
by B NAGAVENI
Location: HIGH
COURT OF
KARNATAKA
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3. RAJU @ RAJAKUMAR S/O SHARANAPPA MAYUR,
AGE: 34 YEARS, OCC: PRIVATE WORK,
R/O MAYUR VILLAGE, TQ. JEWARGI,
DIST. KALABURAGI-585101.
4. ROHIT S/O SOIMARAYA HOSAMANI,
AGE: 27 YEARS, OCC: DRIVER,
R/O MAYUR VILLAGE, TQ. JEWARGI,
DIST. KALABURAGI-585101.
5. LOHIT S/O SOMARAYA HOSAMANI,
AGE: 29 YEARS, OCC: DRIVER,
R/O MAYUR VILLAGE, TQ. JEWARGI,
DIST. KALABURAGI-585101.
6. GOVINDA S/O NINGAPPA KAMBLE,
AGE: 28 YEARS, OCC: DRIVER,
R/O MAYUR VILLAGE, TQ. JEWARGI,
DIST. KALABURAGI-585101.
7. BASSU @ BASAVARAJ S/O KALYANI WARADI,
AGE: 45 YEARS, OCC: DRIVER,
R/O AWARALLI VILLAGE, TQ. AFZALPUR,
DIST. KALABURAGI.
NOW R/AT VEERABHADRESHWAR COLONY,
BEHIND JAYATIRTHA KALYAN MANTAP,
UDANOOR ROAD, KALABURAGI-585102.
8. KHAJAPPA S/O BHEEMASHYA HOSAMANI,
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O MAYUR VILLAGE, TQ. JEWARGI,
DIST. KALABURAGI-585101.
9. MAREPPA
S/O CHANDRAKANTH MADIVALA,
AGE: 35 YEARS, OCC: IRONING SHOP,
R/O SHASHTRI CHOWK, JEWARGI,
DIST. KALABURAGI-585101.
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10. PRAKASH S/O M. KAREPPA KOODALAGI,
AGE: 37 YEARS, OCC: AGRICULTURE,
R/O KOODALAGI VILLAGE, TQ. JEWARGI,
DIST. KALABURAGI-585101.
11. SHIVU @ SHIVAKUMAR S/O RAJA KOLLUR,
AGE: 30 YEARS, OCC: PRIVATE WORK,
R/O OM NAGAR, JEWARGI,
DIST. KALABURAGI-585101.
12. NAGARAJ S/O GURUNATH MAYUR,
AGE: 36 YEARS, OCC: AGRICULTURE,
R/O MAYUR VILLAGE, TQ. JEWARGI,
DIST. KALABURAGI-585101.
13. MAHANTAPPA
S/O GOLLALAPPA BHAVIKATTI,
AGE: 44 YEARS, OCC: CONTRACTOR,
R/O MAYUR VILLAGE, TQ. JEWARGI,
KALABURAGI- 585101.
…RESPONDENTS
THIS CRL.A. IS FILED UNDER SECTION 419(1) AND (3)
OF BNSS (UNDER SECTION 378 (1) AND (3) OF THE CR.P.C),
PRAYING TO, A) GRANT LEAVE TO FILE THE APPEAL AGAINST
THE JUDGMENT AND ORDER DATED 23.07.2025 PASSED BY
THE II ADDL. SESSIONS JUDGE AND SPECIAL JUDGE AT
KALABURAGI IN SPECIAL CASE (SC/ST) NO.14/2020, THEREBY
ACQUITTING THE ACCUSED/RESPONDENTS FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 143, 147, 148, 427,
120-B, 109, 307, 504, 109 AND 302 R/W SECTION 149 OF
INDIAN PENAL CODE AND SECTIONS 3(1)(r), 3(2)(v) OF
SCHEDULE CASTES AND SCHEDULE TRIBES (PREVENTION OF
ATROCITIES) ACT 1989, AND SECTION 25 OF INDIAN ARMS
ACT. B) SET ASIDE THE JUDGMENT ORDER DATED 23.07.2025
PASSED BY THE II ADDL. SESSIONS JUDGE AND SPECIAL
JUDGE AT KALABURAGI IN SPECIAL CASE (SC/ST)
NO.14/2020, THEREBY ACQUITTING THE
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ACCUSED/RESPONDENTS FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 143, 147, 148, 427, 120-B, 109, 307, 504,
109 AND 302 R/W SECTION 149 OF INDIAN PENAL CODE AND
SECTIONS 3(1)(r), 3(2)(v) OF SCHEDULE CASTES AND
SCHEDULE TRIBES (PREVENTION OF ATROCITIES) ACT 1989,
AND SECTION 25 OF INDIAN ARMS ACT. AND C) CONVICT
AND SENTENCE THE RESPONDENTS/ACCUSED FOR THE
OFFENCE PUNISHABLE UNDER SECTIONS 143, 147, 148, 427,
120-B, 109, 307, 504, 109 AND 302 R/W SECTION 149 OF
INDIAN PENAL CODE AND SECTIONS 3(1)(r), 3(2)(v) OF
SCHEDULE CASTES AND SCHEDULE TRIBES (PREVENTION OF
ATROCITIES) ACT 1989, AND SECTION 25 OF INDIAN ARMS
ACT.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE ASHOK S. KINAGI
and
HON'BLE MR. JUSTICE SUBRAMANYA RANGARAO
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE ASHOK S. KINAGI)
This appeal is filed by the State under Section 378(1)
and (3) of the Code of Criminal Procedure, 1973 (‘ CrPC ’
for short) [Section 419(1) and (3) of Bharatiya Nagarik
Suraksha Sanhita, 2023], challenging the judgment and
order of acquittal dated 23.07.2025 passed in Special Case
(SC/ST) No.14/2020 by the Court of learned II Addl.
Sessions Judge and Special Judge at Kalaburagi
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(‘ Sessions Court ’ for short) acquitting the
accused/respondent Nos.1 to 12 for the offences
punishable under Sections 120-B, 143, 147, 148, 302,
307, 504, 427 and 109 read with Section 149 of the Indian
Penal Code (‘ IPC ’ for short), Sections 3(1)(r), (2)(v) of
the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (‘ SC, ST Act ’ for short) and Section
25 of the Arms Act, 1959.
2. Brief facts leading rise to the filing of this
appeal are as follows:
2.1. The case of the prosecution initially as stated by
PW9 at first information-Ex.P4 is that, the deceased
Shivalinga is the elder brother of PW9 and doing contract
works, stayed with his wife PW3-Saroja and children at
Kotnoor (D), Kalaburagi and he used to go to native
village Mayur. There was a galata in respect of allotment
of his house under Gram Panchayat scheme in the gram
sabha between the deceased and accused No.1-Shantappa
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and his son-in-law accused Ravi, Raju and Khajappa.
Hence, they cultivated animosity against them. 15 to 20
days before the incident i.e., on 15.10.2019, the C.C. road
construction was in progress. Then, there was a galata
between them and accused Hanamanth, Ravi, Raju,
Khajappa and others. So, there was a case filed at Nelogi
Police Station for the offence punishable under Section
307 of IPC. The accused Hanamanth and his sons-in-law
Ravi, Raju, Khajappa and others assaulted his elder
brother Bhajiraya, PW8's son Sunil with deadly weapons
and they also told that they would also assault the
deceased Shivalinga at Kalaburagi. On 04.11.2009, he and
his brother deceased went to Afzalpur Court in car bearing
Reg.No.KA-32/N-9213. They returned to Kalaburagi. He
and the deceased went towards Chowdapur for observing
the pending construction work at 08:30 p.m., to 09:30
p.m. When they were near Sharan Sirasagi – Hadagil
Haruti cross, Afzalpur main road, a Scorpio van bearing
Reg.No.KA-32/N-7443 came, accused Hanamanth S/o
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Chandappa Kudalagi, Ravi S/o Shenkreppa Hosamani,
Raju S/o Sharanappa Hosamani, Prakash S/o Mareppa
Kodalagi, Santosh S/o Subhash Channur, Nagaraj S/o
Gurunath Hosamani and Khajappa S/o Bhimashya
Hosamani were in the said vehicle, followed them in a
cinema style and hit their car, all had deadly weapons in
their hands, came near their car, abused the deceased as
“
¸ÀÆ¼É ªÀÄUÀ£Éà dUÀ¼À ºÀaÑ 307 PÉøÀ, ªÀiÁr¹¢Ý £Á®ÄÌ gÉÆÃqÀ ºÁ¼ÀÄ ªÀiÁr¢Ý”
and assaulted with deadly weapons. He frightened that
they would assault him. So, he fled from the spot and hid.
He observed the assault on the deceased. Later, the
accused called accused No.1 Shantappa over phone. He
came on a Fortuner car with accused No.7-Basavaraj and
others, and took the assailants in the car. Since he was
frightened, after his sons-in-law Pradeep, Pratap,
Devendra came outside the land of toor crop. He
confirmed that, the accused went away, then came out.
He saw that the deceased lied on the land near the car
and he was assaulted with deadly weapons. There were
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severe injuries on head and body, and the deceased was
murdered. The weapons were thrown in the spot and the
Scorpio van was in the ditch near the place, the deadly
weapons, mobiles and other articles were also inside the
Scorpio van. Hence, they murdered the deceased because
in view of the case filed against the accused persons for
the offence punishable under Section 307 of IPC before
Nelogi Police Station. The accused abetted and conspired,
and he came in the aforesaid Scorpio van, he followed
their car and hit the car. The car was damaged the Scorpio
van hit the car, and also the car dashed and went in the
ditch beside the road. Accused No.1-Shantappa conspired
with other accused persons to murder the deceased and
other accused supported him. Hence, the first information
was lodged on 05.11.2019 at 00:30 hrs., as per Ex.P4.
Based on the complaint, a first information report ( FIR )
came to be registered in Crime No.146/2019 for the
offences punishable under Sections 143, 147, 148, 427,
120B, 109, 307 and 302 read with Section 149 of IPC.
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2.2. The Police, after investigation, filed a charge
sheet against the accused for the offences punishable
under Sections 143, 147, 148, 427, 120B, 109, 307 and
302 read with Section 149 of IPC, Sections 3(1)(r),
3(2)(v) of SC, ST Act and Section 25 of the Arms Act.
Charge sheet copies were furnished to accused Nos.1 to
12 in compliance with Section 207 of CrPC. The Sessions
Court framed the charges, read over and explained to
accused Nos.1 to 12. They denied the charges and
claimed to be tried.
2.3. The prosecution, to prove its case, examined
thirty-five witnesses as PW1 to PW35, marked one
hundred and six documents as Exs.P1 to P106 and twenty-
one material objects as MO1 to MO21. The statement of
PW33 under Section 164 of CrPC was marked as Ex.C1.
The accused, to prove their defence, marked Exs.D1 and
D2 i.e., the portions of statements of PW9 and PW8
respectively.
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2.4. The Sessions Court, after hearing the learned
counsel for the parties, framed the points for
consideration:
“1) Has the prosecution proved that deceased
Shivalingappa Bhavikatti and PW.9 belonging to
Scheduled Castes / Scheduled Tribes?
2) Has the prosecution proved that the death of
Shivalingappa Bhavikatti is culpable homicidal?
3) Has the prosecution proved beyond reasonable
doubt that on 15.10.2019 due to the dispute
between the family of PW.9 regarding Gram
Panchayat Election and distribution of Government
house, all of accused persons developed animosity
against PW.9 and his elder brother deceased
Shivalingappa Bhavikatti, on 15.10.2019 at Mayur
village, the quarrel was taken place between PW.9
and his elder brother deceased Shivalingappa
Bhavikatti and accused persons regarding
construction of CC road in Mayur village, case and
counter cases were registered against accused
persons and PW.9, all of accused took a rented
room in complex belongs to PW.23 situated at
Udnoor Cross, Kalaburagi, in the said room accused
Nos. 2 to 6, 9 and 10 being the members of
unlawful assembly and in prosecution of common
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object of such assembly committing an offence
have criminally conspired and hatched a plan to
commit murder of deceased Shivalingappa
Bhavikatti and thereby committed an offence
punishable under Section 120-B read with Section
149 of IPC?
4) Has the prosecution proved beyond reasonable
doubt that on 04.11.2019 at about 8.30 pm to 9.00
pm at KalaburagiAfzalpur road in between
Sharanasirasagi and Haruti Hadagil road, accused
Nos. 2 to 6, 9 and 11 formed themselves into an
unlawful assembly and the common object of such
unlawful assembly was to commit murder of
deceased Shivalingappa Bhavikatti and thereby
committed an offence punishable under Section 143
of IPC?
5) Has the prosecution proved beyond reasonable
doubt that on the above said date, time and place,
accused Nos.2 to 6, 9 and 11 being members of an
unlawful assembly and in prosecution of the
common object of such assembly, committed rioting
and at that time accused were armed with deadly
weapons like Talwars and Jambia and thereby
committed an offence punishable under Sections
147 and 148 of IPC?
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6) Has the prosecution proved beyond reasonable
doubt that on the above said date, time and place,
when PW.9 and his elder brother Shivalinga
Bhavikatti together were going in car bearing
Reg.No. KA.32/N.9213, accused Nos.2 to 6, 9 and
11 being members of an unlawful assembly and in
prosecution of the common object of such
assembly, armed with deadly weapons came on
scorpio vehicle bearing Reg.No. KA.32/N.7743
behind the car of deceased dashed to the car, the
car of the deceased fell in a ditch, accused Nos.2 to
6, 9 and 11 assaulted deceased Shivalingappa
Bhavikatti with Talwars and Jambia on his head,
neck and left shoulder, left forearm and other parts
of body, caused bleeding injuries to him and
intentionally and knowingly committed his murder
and thereby committed an offence punishable under
Section 302 read with Section 149 of IPC?
7) Has the prosecution proved beyond reasonable
doubt that on the above said date, time and place,
accused Nos.2 to 6, 9 and 11 being members of an
unlawful assembly and in prosecution of the
common object of such assembly, killed deceased
Shivalingappa Bhavikatti and attempted to commit
murder of PW.9 also, but he run away from the said
spot, if he had not run away from the spot, accused
Nos. 2 to 6, 9 and 11 would have killed him and
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thereby committed an offence punishable under
Section 307 read with Section 149 of IPC?
8) Has the prosecution proved beyond reasonable
doubt that on the above said date, time and place,
accused Nos. 2 to 6, 9 and 11 being members of an
unlawful assembly and in prosecution of the
common object of such assembly, intentionally
insulted deceased Shivalingappa Bhavikatti by
abusing him in filthy language as ”
¸ÀÆ¼É ªÀÄUÀ£É HgÀ°è
and thereby
dUÀ¼À ªÀiÁr £ÀªÀÄä ªÉÄÃ¯É 307 PÉÃ¸ï ªÀiÁr¹¢”
committed an offence punishable under Section 504
read with Section 34 of IPC?
9) Has the prosecution proved beyond reasonable
doubt that on the above said date, time and place,
accused Nos. 2 to 6, 9 and 11 being members of an
unlawful assembly and in prosecution of the
common object of such assembly, committed
mischief by causing wrongful damage to the car
bearing Reg.No.KA.32/N.9213 of deceased
Shivalingappa Bhavikatti and thereby committed an
offence punishable under Section 427 read with
Section 149 of IPC?
10) Has the prosecution proved beyond reasonable
doubt that on the above said date, time and place,
accused Nos.1, 7, 8, 10 and 12 abetted accused
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Nos.2 to 6, 9 and 11 to commit an offence of
murder on deceased Shivalingappa Bhavikatti and
thereby committed an offence punishable under
Section 109 read with Section 149 of IPC?
11) Has the prosecution proved beyond reasonable
doubt that on the above said date, time and place,
accused Nos.9 and 11 not being the members of
Scheduled Castes or Scheduled Tribes, knowing
fully well that deceased Shivalingappa Bhavikatti
belongs to a member of Scheduled Castes,
intentionally insulted him by abusing him in filthy
language as ”
¸ÀÆ¼É ªÀÄUÀ£É HgÀ°è dUÀ¼À ªÀiÁr £ÀªÀÄä ªÉÄÃ¯É 307
in the public place within public view
PÉÃ¸ï ªÀiÁr¹¢”
with intent to humiliate him and thereby committed
an offence punishable under Section 3(1)(r) of
SC/ST (PA) Act, 1989?
12) Has the prosecution proved beyond reasonable
doubt that on the above said date, time and place,
accused Nos.9 and 11 not being the members of
Scheduled Castes or Scheduled Tribes, knowing
fully well that deceased Shivalingappa Bhavikatti
belongs to a member of Scheduled Castes,
committed murder of deceased Shivalingappa who
was a member of Scheduled castes punishable with
imprisonment for life or imprisonment for more
than 10 years under Indian Penal Code and thereby
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committed an offence punishable under Section
3(2)(v) of SC/ST (PA) Act?
13) Has the prosecution proved beyond reasonable
doubt that on the above said date, time and place,
accused Nos.2 to 6, 9 and 11 being members of an
unlawful assembly and in prosecution of the
common object of such assembly, while committing
an offence accused were in possession of deadly
weapons such as swords and jambia (dagger) the
use of such weapons is prohibited and thereby
committed an offence punishable under Section 25
of the Indian Arms act?
14) What order?”
2.5. The Sessions Court, after appreciating the
entire evidence on record, answered point Nos.1 and 2 in
the affirmative, point Nos.3 to 13 in the negative and point
No.14 as per the final order. The Sessions Court acquitted
the accused persons for the aforesaid offences vide
judgment and order of acquittal dated 23.07.2025.
3. The State, aggrieved by the judgment and
order of acquittal dated 23.07.2025 passed in Special Case
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(SC/ST) No.14/2020 by the Sessions Court, filed this
appeal.
4. Heard the arguments of learned Additional SPP
for State.
5. Learned Additional SPP for State submits that,
the reasons assigned by the Sessions Court while passing
the impugned judgment and order of acquittal are
erroneous. He submits that, the Sessions Court has
completely failed to consider and understand the facts of
the case and statements of witnesses in a comprehensive
manner. Even though all the evidence clearly prove the
guilt of the accused, the Sessions Court has given great
importance to the minor facts that naturally arises, and
acquitted the case, which is not fair. He further submits
that, the main witness – the complainant/brother of the
deceased i.e., PW9, in his testimony, stated that on the
date of accident, he and his deceased brother travelling
from Kalaburagi in a car while going to Chowdapur, on
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Hadagali – Haruti road, the accused came from behind
with their vehicle and hit the car in which the deceased
and PW9 were travelling, and the said fact has not been
taken into consideration by the Sessions Court. He further
submits that, the wife of the deceased was examined as
PW3 and PW8 and 10 had also supported the case of the
prosecution that the accused had conspired out of old
enmity and killed the deceased by biting him with deadly
weapons. The impugned judgment and order of acquittal
passed by the Sessions Court is illogical, unsustainable
and contrary to the facts and law. Hence, on these
grounds, he prays to allow the appeal.
6. Perused the records and considered the
submissions of the learned Additional SPP for State.
7. The point that would arise for our consideration
is as follows:
Whether the State proves
that the impugned judgment
and order of acquittal passed
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by the Sessions Court is
perverse, arbitrary and
without appreciation of
evidence?
8. The prosecution, to prove its case, examined
PW1 who is the Police Constable ( PC ) who translated the
FIR and complaint as per Exs.P4 and P5 to the Court. PW2
who is the PC of Farahatabad Police Station, who deposed
that he escorted the dead body of the deceased
Shivalingappa at GGH, Kalaburagi as ordered by the Police
Inspector i.e., PW21. The Doctor conducted the autopsy
and collected MO1 to MO4 from the dead body. Thereafter,
the Doctor gave the clothes-MO1 to MO4 (14 to 17)
belonging to the deceased. In the presence of PW21-the
Police Inspector, the Doctor handed over the dead body to
the relatives of the deceased.
8.1. The wife of the deceased was examined as
PW3. She deposed that, she heard the incident from PW9
who is her brother-in-law; she had been to the spot, saw
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the dead body of her deceased husband Shivalingappa;
she heard from PW9 that accused Nos.2 to 6, 8, 9, 11 and
12 assaulted the deceased with deadly weapons like talvar
and macchu for the old animosity. This witness is a
hearsay witness. This witness was not present on the spot
at the time of alleged incident. She deposed based on the
information provided to her by PW9 who is her brother-in-
law.
8.2. PW4 and PW7 are the panch witnesses to
Ex.P6-the inquest mahazar , and Exs.P7 and P8-the
photos. PW4 and PW7 turned hostile. PW5 and PW6 are
the spot and recovery mahazar witnesses. They deposed
that, the Police prepared Ex.P9-the spot and recovery
mahazar . They deposed that, the Police recovered MO1 to
MO8 and MO9 to MO13 from the spot, and the Police
prepared Ex.P20-the mahazar and recovered MO14 to
MO17.
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8.3. PW8 is the elder brother of deceased. He
deposed in par with PW3.
8.4. PW9 is the first informant, eyewitness and star
witness to the prosecution. He reiterated the complaint
averments in the examination-in-chief and the complaint
lodged by the PW9 was marked as Ex.P4.
8.5. PW10 is the elder brother of the deceased. He
deposed in par with PW3 and PW8. He and PW11 are also
hearsay witnesses.
8.6. PW12-the Assistant Sub-Inspector ( ASI ) of
Devala Ghangapur Police Station, PW14-PC and PW22-PC
deposed that, they were on patrolling duty; when they
were near Sharan Sirasagi-Hadagil Haruti Cross, one car
met with incident like accident, it was as if an accident;
the car was in the ditch beside the road; the deceased was
dead in another car; they saw another car, there were two
persons in the car; they went and have not suspected on
them.
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8.7. PW13 is the Doctor who conducted autopsy on
the dead body and issued post-mortem report. He
deposed that, the Police produced MO3 to MO8 for weapon
examination report; accordingly, he perused MO3 to MO8
and gave report as per Ex.P28; he opined that MO3 to
MO8 would cause death of the deceased.
8.8. PW15 is the recovery panch witness to Exs.P29
and 30. PW16-PC was examined and he deposed that, he
was deployed for taking photo while preparing the
mahazars on the direction of PW21 and PW35; he took the
photographs marked as Exs.P7, P8, P10 to P19, P21, P22,
P31 to P66, he got the printout and submitted the same
before PW35; he gave certificate as per Ex.P87 under
Section 65B of the Indian Evidence Act, 1872.
8.9. PW17 is the neighboring shopkeeper where
accused No.2 rented a shop in the complex. He turned
hostile and his statement was marked as Ex.P68. PW18 is
the owner of the shop. He repaired the Scorpio van said to
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be used in the incident by the accused persons. Even he
turned hostile. PW19 is the labourer at the petrol bank. He
filled the petrol in the Scorpio van which is said to be used
in the case after the incident. He also turned hostile and
his statement was marked as Ex.P69. PW20 helped
accused No.2 to purchase the deadly weapons i.e., MO3 to
MO8 from PW31 for Rs.9,500/-. Even the said witness
turned hostile.
8.10. PW21 is the Police Inspector of Farahatabad
Police Station. He deposed that, he received the complaint
as per Ex.P4 and set the law into motion by registering FIR
as per Ex.P5; he prepared the inquest mahazar as per
Ex.P6, seizure mahazar as per Ex.P9 and recovered MO1
to MO13 from the spot, captured the photographs at
Ex.P7, P8, P10 to P19; he recovered MO14 to MO17
belonging to the deceased by preparing Ex.P20- mahazar ;
on 11.11.2019, he was directed to hand over the
investigation to PW35.
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8.11. PW23 is the owner of the complex where
accused No.2 got a house on rent. He turned hostile and
his statement was marked as Ex.P81. PW24 and PW32 are
the sister-in-law and relatives of accused No.10. They
deposed that, accused Nos.2, 4 and 6 came and stayed for
two days and destroyed the blood-stained clothes. Even
these witnesses turned hostile and their statements were
marked as Exs.P82 and P89 respectively.
8.12. PW25 and PW26 are the panchas for recovery
of clothes from accused No.1 by preparing mahazar as per
Ex.P83 and photographs were marked as Exs.P59 to P64.
PW25 and PW26 turned hostile.
8.13. PW27 is a hearsay witness, PW28 turned
hostile and PW29 is a hearsay witness. PW30 is panch
witness to Ex.P87 – recovery of a Bolero van bearing
Reg.No.KA-32/C-9844 from accused No.1 and mobile
phone marked as MO18 and photographs at Exs.P65 and
P66. During the cross-examination, PW27 admitted that he
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did not know the contents of Ex.P87- mahazar and Exs.P65
and 66-photographs; he admitted that, the Police asked
him to sign and he had signed on it.
8.14. PW31 is the Potter who prepared the weapons
i.e., MO3 to MO8. He turned hostile. PW33 is the owner of
the car. He deposed that, he shifted accused Nos.3 to 7
and 11 in his car after the incident by receiving car rent of
Rs.2,000/-. PW33 turned hostile. PW34 is the owner of
the Nissan car which was used by the deceased in the
incident. He also turned hostile.
8.15. PW35 is the Assistant Commissioner of Police,
who deposed that, he took up further investigation from
PW21 and he was appointed as Investigating Officer from
the Commissioner of Police as per Ex.P93; he arrested
accused Nos.1 to 6 and recorded the voluntary statements
of Accused Nos.2 to 6. The voluntary statements of the
accused Nos.2 to 6 were marked as Exs.P95 to 99
respectively.
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9. The entire perusal of the prosecution witnesses
would disclose that, PW3 is the wife of the deceased.
Admittedly, PW3 was not present on the spot and she is
not an eye witness to the alleged incident. She was
informed by PW9 that accused Nos.2 to 6, 8, 9, 11 and 12
assaulted the deceased with deadly weapons. PW4 and
PW7 were the panch witnesses to Exs.P6-inquest mahazar
and Exs.P7 and P8-photographs.
10. From the perusal of the entire records, the
entire case of the prosecution is based on PW9, who is
said to be the first informant and also he was
accompanying the deceased. Admittedly, PW9 had not
sustained any injuries during the course of alleged
incident. PW3, PW8, PW10, PW11 and PW29 are the
hearsay witnesses. PW4, PW7, PW17, PW18, PW20, PW21,
PW23, PW24, PW34, PW25, PW26, PW28, PW30, PW31
and PW33 turned hostile. Admittedly, the case and
counter-case were registered and the said fact had not
been disputed by the accused persons.
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11. The entire case of the prosecution is solely
based on PW9 who is said to be a star witness and sole
eye witness. During the cross-examination, the counsel for
the accused had confronted further statement of PW9. In
the said statement, PW9 had stated that the assailants
who murdered his younger brother Shivaling went in the
Fortuner car. The portion of the statement of PW9 was
marked as Ex.D1. In the said statement, PW9 had stated
the names of accused Nos.2 to 6, 9 and 11, and he came
to know that they committed murder of the deceased
since the Police arrested. From the perusal of Ex.P4 i.e.,
first information, it clearly discloses that no overt acts
have been made out in the first information. From the
perusal of the statement of PW9 in the complaint, PW9
made an improvement during the course of trial. During
the cross-examination, PW9 admitted that he knew the
contents of the complaint and he admitted that he had not
mentioned that he sat in the left side of the car in Ex.P4-
complaint and further statement. PW9 admitted that he
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had not mentioned in Ex.P4 regarding which part of the
deceased’s body was assaulted and he had not stated that
the accused Ravi assaulted the deceased on hand. He
further admitted that, he had not stated that accused No.3
assaulted the deceased with talwar on left shoulder in
Ex.P4 and the statement; he admitted that he had not
stated that accused No.9 assaulted the deceased talwar in
Ex.P4 and the statement; he admitted that he had not
stated that accused No.9 assaulted the deceased with
jambe on the back of neck in Ex.P4 and the statement; he
also admitted that he had not stated that accused No.4
assaulted the deceased with jambe on the back of neck in
Ex.P4.
12. From the perusal of the deposition of PW9, it
clearly discloses that he had not made a statement before
the Police regarding the overt act against accused Nos.3, 4
and 6 either in Ex.P4 or further statement as per Ex.D1. It
was suggested to PW9 that the deceased was illegally
transporting the sand and there are 8 to 10 cases pending
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against the deceased and it was suggested that the
deceased had several enemies in the society. The said
suggestions were denied by PW9.
13. PW9 deposed that he was travelling along with
the deceased. PW9 had not made a single effort to save
the life of the deceased. From the perusal of Ex.P4 and
Ex.D1, it clearly indicates that PW9 had given up the
accused persons and implicated the accused who are not
in the first information or the statement. He also admitted
that there was previous enmity, and there were case and
counter-case registered between PW9 and the accused
persons regarding the disputes pertaining to road and
distribution of the houses under Gram Panchayat scheme.
14. From the perusal of the entire deposition of
PW9, it creates a doubt regarding the presence of PW9 on
the spot at the time of alleged incident. If he was
travelling along with the deceased in the car, he was
unable to say on which part of the body of the deceased
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the accused assaulted and further he had stated that he
was sitting on the left side of the car, but had not made
any attempt to save his brother. Thus, it creates a strong
doubt regarding the presence of PW9 on the spot.
15. Except PW9, none of the prosecution witnesses
have supported the case of the prosecution. Some
prosecution witnesses have turned hostile and some are
the hearsay witnesses.
16. From the perusal of the entire depositions of
PW1 to PW35, they clearly disclose that there was no
casteist attack on the deceased. The Sessions Court,
insofar as casteist attack is concerned, has recorded its
finding in paragraph No.43 as follows:
“43. The deceased and PW.9 belonging to the
members of the Scheduled Castes as stated at point
No.1. Accused Nos.9 and 11 are the non members of the
Scheduled Castes or Scheduled Tribes. PW.9 has never
stated at Ex.P.4 that the accused No.9 and 11 abused the
deceased by referring the caste. Accused No.11 arrested
by the investigating officer on 23.11.2019 and recorded
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the voluntary statement. Then only the provisions of
Sections 3(1)(r) and 3(2)(v) of SC/ST (PA) Act
implicated. If the incident is the castiest attack the
accused referred the caste of deceased in the incident,
PW.9 would have mentioned the castiest attack in the
complaint at Ex.P4. Further, the name of accused No.9
and 11 has not been appeared in the complaint. The mere
assault on member of Scheduled Castes or Scheduled
Tribes by the non member of the Scheduled Castes or
Scheduled Tribes person is not an offence. Such offences
must be done on members of Scheduled Castes or
Scheduled Tribes with an intention that the person
belonging to Scheduled Castes or Scheduled Tribes. So,
the ingredients of Section 3(1)(r) and 3(2)(v) of SC/ST
(PA) Act is manifestly absent in this case. The said
offences are implicated in the charge sheet only for the
shake of accused No. 9 and 11 are non members of
SC/ST. Such contentions cannot be encouraged.
Accordingly, I have no hesitate to answer that there is no
castiest attract on deceased Shivalinga.”
The deceased and PW9 are the members of the scheduled
caste. Accused Nos.9 and 11 are the non-members of the
scheduled castes or scheduled tribes. PW9 had never
stated in Ex.P4 that accused Nos.9 and 11 abused the
deceased by referring the caste. The Investigating Officer,
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based on the voluntary statement of accused No.11,
implicated the accused under the provisions of SC, ST Act.
If at all if accused Nos.9 and 11 had made any casteist
remarks, PW9 could have mentioned in Ex.P4-complaint.
Admittedly, PW9 had not mentioned regarding the alleged
casteist remarks, and the ingredients of the provisions of
SC, ST Act is silent in Ex.P4.
17. From the perusal of the entire records, the
prosecution has failed to prove the guilt of the accused
beyond all reasonable doubts. The Sessions Court,
considering the entire evidence on record, held that the
prosecution has failed to establish the charges against the
accused, there was a previous enmity between PW9 and
the accused persons, which is a double-edged weapon. In
order to take revenge, there was a case and counter-case
against PW9 and the accused. Thus, the prosecution has
abundantly established the homicidal death of the
deceased, but not the charges levelled against the accused
persons.
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18. The Hon’ble Apex Court has, in the case of
1
Jafarudheen and Others Vs. State of Kerala , held in
paragraph No.25 as follows:
“Scope of appeal filed against the acquittal
25. While dealing with an appeal against acquittal
by invoking Section 378CrPC, 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.”
19. In view of the above discussion, we do not find
any error in the impugned judgment and order of
acquittal, we decline to interfere with the same, and
1
(2022) 8 SCC 440
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answer point for consideration in the negative .
Accordingly, we proceed to pass the following:
ORDER
i. The appeal is dismissed ;
ii. Pending IA(s), if any, shall stand disposed of.
Sd/-
(ASHOK S. KINAGI)
JUDGE
Sd/-
(SUBRAMANYA RANGARAO)
JUDGE
PA
List No.: 2 Sl No.: 12
Ct:pk