IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 30TH DAY OF MAY, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ CRIMINAL APPEAL No.1746/2016 Between:
The State by the Virajpet Rural Police Station Represented by State Public Prosecutor High Court Building Bengaluru – 560 001. ... Appellant (By Sri M.Divakar Maddur, HCGP) And:
1. Kunchakandi Iqbal S/o. Late Ummer Age: 46 years R/o. Ullemane Village Keliyandara Post Palathin Kadavu Kannur District Kerala – 670 001.
2. Kannikatil J. Jaisan S/o. George Age: 39 years R/o. Aiyagunna Village Kacheri Kadava Post Palathin Kadavu Kannur District Kerala – 670 001. ... Respondents (By Sri Satheesh Kumar A., Advocate – Absent) This Criminal Appeal is filed under Section 378(1) & (3) of Cr.P.C. praying to grant leave to appeal against the judgment and order dated 01.06.2016 passed by the II Additional District and Sessions Judge., Kodagu-Madikeri sitting at Virajpet in Crl.A.No.8/2013 thereby acquitting the respondent/accused for the offence P/U/S 323 and 506(2) read with 34 of IPC.
This Criminal Appeal coming on for Admission this day, the Court delivered the following:
J U D G M E N T The State is in appeal challenging the judgment and order of acquittal passed by the learned Sessions Judge in Criminal Appeal No.08/2013 thereby acquitting the accused/respondent of the offences punishable under Sections 323 and 506(2) read with Section 34 of Indian Penal Code.
2. I have heard the learned High Court Government Pleader representing the appellant/State.
3. The brief facts of the prosecution case are that; on 06.07.2010 at about 6.15 p.m. at Makutta Village, the accused persons were quarreling under the influence of Alcohol near the house of the complainant (PW-1). When the complainant informed the accused that he is residing in his house along with his family and told them not to quarrel, at that time, accused Nos.1 and 2 in furtherance of their common intention came near the complainant and accused No.1 assaulted on his cheek and accused No.2 hit the beer bottle on the wall and threatened the complainant with dire consequences showing the broken bottle.
4. On the complaint lodged by PW-1, a case was registered in Crime No.199/2010 of Virajpet Rural Police Station against the accused for the offences punishable under Sections 323 and 506(2) read with Section 34 of IPC and after completion of investigation, charge sheet was filed. The accused were tried for the aforesaid offences before the trial Court. On behalf of prosecution, P.Ws.1 to 7 were examined and Exs.P1 to P8 were marked and M.O.1 was produced and marked. The defence of the accused was one of total denial, however, they did not choose to lead any evidence on their behalf. The trial Court after considering the evidence and material on record, convicted the accused for the offences punishable under Sections 323 and 506(2) read with Section 34 of IPC.
5. For the offence under Section 323 of IPC, accused No.1 was sentenced to undergo simple imprisonment for a period of four months and sentenced to pay fine of Rs.1,000/-, in default of payment of fine to undergo simple imprisonment for a period of one month.
6. Accused No.2 was sentenced to undergo simple imprisonment for a period of six months for the offence punishable under Section 506 of IPC and sentenced to pay fine of Rs.1,000/-, in default of payment of fine to undergo simple imprisonment for a period of one month.
7. Aggrieved by the judgment and order of conviction and sentence passed by the trial Court, accused preferred Criminal Appeal No.08/2013 before the Sessions Court. Learned Sessions Judge by an order dated 01.06.2016, allowed the said appeal and acquitted the accused thereby setting aside the judgment and order of conviction and sentence passed by the trial Court.
8. The learned High Court Government Pleader would contend that PW-1 is the complainant and PW-2 is an eye witness to the incident. Both of them have supported the prosecution case and trial Court after appreciating their evidence, has rightly convicted and sentenced the accused. He submits that even the evidence of PW-4-Doctor shows that the accused persons had consumed Alcohol and in the wound certificate marked as Ex.P3, it has been stated that PW-1 was assaulted by the accused and hence he submits that the Appellate Court was not justified in acquitting the accused.
9. PW-1 is the complainant and PW-2 is an eye witness to the incident. According to the prosecution case, on 06.02.2016 at about 6.15 p.m., when PW-1 questioned the accused persons not to quarrel near his house, that time accused No.1 assaulted on his face with his hand and accused No.2 smashed a bottle on the wall and threatened him showing the broken glass piece. PW-3 is the panch witness to the spot mahazar. PW-5 is another eye witness to the incident, however, he has not supported the prosecution case. PW-6 is a witness for seizure mahazar/M.O.1 and he has not supported the prosecution case. Ex.P3 is the wound certificate issued by PW-4. On perusal of the same goes to show that there was no injury suffered by PW-1.
10. Learned Sessions Judge after considering the material on record was of the view that Sections 323 and 506(2) of IPC are non-cognizable and bailable offences as per Section 156(2) of Cr.P.C and therefore the prosecution was required to take permission from the learned Magistrate before initiating the proceedings. Therefore, the learned Sessions Judge was of the view that the charge sheet filed by the concerned Investigation Officer is vitiated for non-compliance of Section 156(2) of Cr.P.C. The said position has not been disputed. In that view of the matter there is no error committed by the learned Sessions Judge in passing the impugned order. Hence, the following:
ORDER The Criminal Appeal is dismissed.
KA/SJK Sd/- JUDGE