IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 6TH DAY OF JULY, 2021

PRESENT

THE HON’BLE MR. JUSTICE B. VEERAPPA

AND

THE HON’BLE MR. JUSTICE V. SRISHANANDA

CRIMINAL APPEAL NO.438/2019 (C)

BETWEEN

1. MR K R NARAYANASWAMY
AGED ABOUT 61 YEARS,
S/O VENKATARAVANAPPA
OCCUPATION: AGRICULTURIST

2. MR G C ERAPPA REDDY
AGED ABOUT 54 YEARS,
S/O CHIKKAPPAIAH
OCCUPATION: AGRICULTURIST

3. MR G C JAYARAMA REDDY
AGED ABOUT 51 YEARS,
S/O CHIKKAPPAIAH
OCCUPATION: AGRICULTURIST

4. MR G C ANANDA REDDY
AGED ABOUT 49 YEARS,
S/O CHIKKAPPAIAH
OCCUPATION: AGRICULTURIST

5. MR GANGADHAR
AGED ABOUT 32 YEARS,
S/O APPOJI REDDY
OCCUPATION: AGRICULTURIST
 -:2:-

6. MR C NARAYANA SWAMY
AGED ABOUT 44 YEARS,
S/O CHOKKAPPA
OCCUPATION: AGRICULTURIST

ALL ARE RESIDENTS OF

DODDAGANJURU VILLAGE
CHINTAMANI TALUK
CHIKKABALLAPUR DISTRICT-563125

PRESENTLY CONVICTED AND

LODGED AT CENTRAL PRISON
PARAPPANA AGRAHARA
BANGALORE-560068
...APPELLANTS

(BY SRI HASHMATH PASHA SR. COUNSEL FOR

SRI KALEEM SABIR, ADVOCATE)

AND

THE STATE OF KARNATAKA BY

CHINTAMANI RURAL POLICE STATION,
CHINTAMANI TALUK
CHIKKABALLAPUR DISTRICT
REPT. BY SPP
HIGH COURT COMPLEX
BANGALORE-560 001
…RESPONDENT
(BY SRI S. RACHAIAH, HCGP)

THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING

TO SET ASIDE THE IMPUGNED JUDGMENT DATED
05.02.2019 AND SENTENCE DATED 08.02.2019, PASSED BY
THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE,
CHIKKABALLAPURA, SITTING AT CHINTHAMANI IN
S.C.NO.100/2014, CONVICTING THE APPELLANT NOs.1 TO 6
FOR THE OFFENCE P/U/S 148 R/W 149 OF IPC, SECTION 324
R/W 149 OF IPC, SECTION 504 R/W 149 OF IPC AND
SECTION 302 R/W 149 OF IPC AND ETC.,
 -:3:-

THIS CRL.A. COMING ON FOR ORDERS, THIS DAY,

V.SRISHANANDA.J., DELIVERED THE FOLLOWING:

JUDGMENT

1. Present appeal is filed by the accused Nos. 1 to 6

who are convicted for the offences punishable under Section

148 read with 149 IPC; Section 324 read with 149 IPC;

Section 504 read with 149 IPC; and Section 302 read with

Section 149 IPC in SC No.100/2014 dated 5.2.2019 on the

file of the II Addl. District and Sessions Judge sitting at

Chintamani, questioning the validity of the same.

2. Brief facts which are necessary for disposal of the

appeal are as under:

Upon a complaint lodged by G.N. Narayanareddy,

Chintamani Rural Police registered a case in Crime

No.123/2014 against the appellants for the offence

punishable under Sections 143, 147, 148, 504, 324 and 302

read with Section 149 IPC. In the complaint averments, it is

contended that family of Narayanareddy were using Survey

No.188 of Dodda Ganjuru village of Chintamani Taluk as

manure pit from their ancestral days and in that regard there
 -:4:-

were differences between their family and the family of the

accused persons for about three years. When the matter

stood thus, on 21.3.2014 at about 11 am., all the accused

persons, started covering the manure pit with soil, same was

noticed by Narayana Reddy's wife and she questioned their

acts. In turn accused persons scolded her in foul language

and at that juncture, father of Narayana Reddy namely

Nanjappa intervened to protect his daughter-in-law. At that

juncture, Erappa Reddy, Jayaramreddy assaulted the lady

with a machete and clubs and caused bleeding injuries.

Other accused persons namely Erappa Reddy,

Jayaramareddy and Anand Reddy, Gangadahra and

Narasyanaswamy assaulted Nanjappa with clubs, stones and

machete and they assaulted Narayana Reddy also with

stones on his head resulting in severe bleeding injuries.

Immediately, thereafter, all of them, dragged Nanjappa to an

empty space in front of Veerabhadrappa's house and pelted

stones on his head. On noticing the incident, villagers

namely Dairy Narayanaswamy, Bacchayyagari Srinivas and

others gathered there intervened and pacified the quarrel.

Injured Nanjappa was groaning aground with severe blood

 -:5:-

injuries on the head, hands and legs. The complainant G

Narayana Reddy and his brothers tried to shift him to

Chinthamani Government Hospital, but, injured Nanjappa

succumbed enroute to the Hospital. Narayana Reddy also

sustained injuries on the head and stomach, so also his wife.

Therefore, he sought action against the accused persons.

3. Police after conducting detailed investigation laid

charge sheet against the accused persons for the aforesaid

offences. Learned Magistrate took cognizance of the

aforesaid offences and committed the matter to the Sessions

Court. On committal, learned Sessions Judge secured the

presence of the accused persons and framed charges for the

aforesaid offences. Substance of the charges were explained

to the accused persons in the language known to them.

Accused persons pleaded not guilty and claimed for trial.

4. Prosecution in order to bring home the guilt of

the accused, examined nineteen (19) witnesses as PWs.1 to

19 and relied on documentary evidence exhibited and

marked as Exs.P-1 to P-23 and also eleven (11) material

objects which were marked as MOs.1 to 11. Defence also

 -:6:-

marked eighteen (18) documents during the course of cross

examination and the reply tendered by accused No.3

received by the Station House Officer of the Police station.

Accused statement was recorded on conclusion of the

prosecution evidence, wherein accused persons denied all the

incriminatory evidence put to them. Thereafter, learned

Sessions Judge, heard the arguments of both the sides and

formulated four points and answered them in Affirmative and

convicted the accused persons as aforesaid and passed the

following sentence:

Offence Imprisonment Fine

Section 148 IPC A1 to A6 shall -

undergo
imprisonment for
six months

Section 324 IPC A1 to A6 shall -

undergo
imprisonment for
six months

Section 504 IPC A1 to A6 shall -

undergo
imprisonment for
three months

Section 302 IPC A1 to A6 shall Rs.20,000/-

undergo life
imprisonment
 -:7:-

5. We have heard the learned Counsel for the

parties.

6. Sri Hashmath Pasha, Learned Senior Counsel

appearing on behalf of the appellants at the outset submitted

that there was a counter case filed by the accused persons in

respect of the same incident which was registered in the

same Police Station in crime No.129/2014 and the

complainant and others are accused persons in the said case

and they are facing trial before the Principal Civil Judge,

Chinthamani. He further argued that in view of the dictum of

the Hon'ble full bench of this court in the case of State of

Karnataka Vs. Hosakeri Ningappa reported in ILR 2012

KAR 509, the prosecution ought to have bring it to the

notice of the learned Sessions Judge to try both the cases.

Since, none of the parties have brought to the notice of the

learned Trial Judge, about the pendency of the counter case,

the learned Sessions Judge disposed of the case through the

impugned judgment and convicted the accused resulting in

grave prejudice to the accused/appellants.

 -:8:-

7. He would contend that if this court is of the

considered opinion that miscarriage of justice has crept in, on

account of non following the dictum/directions of the full

bench in the case of Hoskeri Ningappa supra, the

impugned judgment needs to be set aside solely on the said

ground and a de novo trial is to be ordered. With the said

submission, he reserved his liberty to address arguments on

merits, if the said ground is not accepted by this Court.

8. Per contra, Sri S. Rachaiah, learned High Court

Government Pleader, fairly submitted that there is an error

that has crept in, in not bringing to the notice to the Trial

Court about the pendency of the counter case and as such,

the learned Sessions Judge could not follow the directions of

the full bench in Hoskeri Ningappa's case supra. He also

submitted that in case if this court feels that the matter

requires re-consideration, there may be specific direction to

hold de novo trial in terms of the directions of the full bench,

and liberty be reserved to the parties to adduce fresh

evidence. This submission is placed on record.

 -:9:-

9. We have carefully considered the above rival

contentions in the light of the directions issued by the full

bench in Hoskeri Ningappa's case supra.

10. In view of the rival contentions urged, the point

that would arise for our consideration is:

"Whether the impugned judgment of

conviction and order of sentence without trying
the counter case along with the case on hand and
rendering judgment only in the case on hand, has
resulted in miscarriage of justice and thus needs
interference?

11. On close scrutiny of the entire materials on

record including the original records, especially Exs.D-1 to D-

8, there were sufficient materials on record before the

learned Trial Judge that there was a counter case registered

by Chintamani Rural Police in respect of one and the same

incident in Crime No.129/2014, wherein the complainant and

others are charge sheeted for the offences punishable under

Sections 143, 147, 148, 323, 324, 504, 506 read with

Section 149 IPC and the same is/was pending for trial before

the Additional Civil Judge (Jr. Dn.) & JMFC Court,

 -:10:-

Chintamani, Chikkaballapur District, as on the date of

passing the impugned judgment of conviction and order of

sentence.

12. There is a mandate issued to all the Trial Courts

by the full bench in the case of Hoskeri Ningappa, as to the

procedure to be adopted while dealing with the case and

counter case as under:-

(a) "If the case and counter case are not tried
simultaneously as held by the Supreme
Court in the case of Nathi Lal Vs. State
of U.P. (Supra) and in the case of Sudhir
and others Vs State of M.P.(Supra) the
proceedings ipso facto do not get vitiated.
But, where the irregular procedure adopted
by the Trial Court has caused prejudice to
the accused and has occasioned failure of
justice, the proceeding and the trial
vitiates. Otherwise, the proceedings are
protected under section 465 of the Code.

(b) The evidence recorded in one case cannot

be looked into in the other case. The Trial
Judge can only rely upon the evidence
recorded in that particular case and the
 -:11:-

evidence recorded in the cross case cannot

be looked into. Each case must be decided
on the basis of the evidence which has
been placed on record in that particular
case. However, if the evidence recorded in
one case is brought on record in
accordance with procedure known to law in
the other case, then, such evidence which
is legally brought on record can be looked
into. Otherwise, the evidence recorded in
one case cannot be looked into in the other
case.

(c) If the Trial Court disposes of the case and

counter case on different dates acquitting
the accused therein and no appeal is
preferred in one of the cases and the
appeal is preferred in the case decided
later, the proceedings in the later case do
not automatically get vitiated. Each case
has to be judged on its own merits. Unless
prejudice is shown to have been caused to
the accused, the proceedings in the later
case do not get vitiated.”

13. It is clear that the learned Trial Judge is duty

bound to try both the cases separately and hear the

 -:12:-

arguments in both the cases separately and thereafter,

pronounce the judgments separately one after another. It is

also clear from the above directions, that parties are at

liberty to bring on record in each of the cases the materials

which are favourable to them and relied upon in the other

case in the process known to law.

14. In the light of the above directions, if the

materials on record are analyzed, the accused

persons/appellants herein have taken the task of bringing the

favourable materials to them on record by marking Exs.D-1

to D-18. A duty was cast on the prosecution to explain the

injuries on the body of the accused persons in the trial itself.

Unfortunately, charge sheet materials do not indicate any

such explanation. The learned Public Prosecutor who

conducted the trial in the case on hand was also duty bound

to brought to the notice of the Trial Judge that in respect of

the same incident, a counter case is registered by the

accused persons and the same was required to be tried along

with the case on hand. It is equally true that the appellants

also did not make any such effort in bringing it to the notice
 -:13:-

of the Trial Court about the pendency of the case of the

counter case and seeking trial before the learned Sessions

Court in terms of the dictum of the full Bench of this Court.

As a result, the lapse on the part of the parties, has resulted

in passing of the impugned order and has caused sufficient

prejudice to the appellants herein. Atleast, the learned Trial

Judge was expected of to take notice of the probative value

of Exs.D-1 to D-18 in proper perspective, if the same was

noticed cautiously, the learned Trial Judge would have

noticed the pendency of the counter case and steps should

have been taken by the learned Trial Judge to secure the

counter case also on to his file and also direct the parties to

make necessary application to get the counter case

transferred on to the learned Sessions Court in accordance

with law and should have tried both the cases by one and the

same judge.

15. Admittedly, the full bench decision is of the year

2011 and the case was reported in the year 2012. The

judgment of the full court was also circulated to all the

 -:14:-

judges in the district judiciary by the Registry to take note of

the directions.

16. We are at a loss to understand why the learned

Trial Judge has not followed the directions of the full bench in

disposing the case on hand. Prosecution has also failed in its

duty in not only explaining the injuries on the body of the

appellant during trial, and also failed to bring it to the notice

of the Trial Judge about the pendency of the case and

counter case and the directions to be followed in this regard.

17. Resultantly, the impugned judgment passed by

the learned Trial Judge in our considered opinion has thus

caused serious prejudice to the rights of the appellants

herein and also resulted in miscarriage of justice.

18. Accordingly, the irresistible conclusion that we

can reach is to hold that the impugned judgment is not

sustainable in law and needs to be set aside. Consequently,

the point is answered in the Affirmative holding that the

appellants have made out a case to interfere with the

impugned judgment of conviction and order of sentence.

 -:15:-

19. In view of the above, we pass the following:-

ORDER

(i) The Criminal Appeal is allowed.

(ii) The impugned judgment of conviction and

order of sentence dated 5/8.02.2019 made in
S.C. No.100/2014 on the file of the II Addl.
District & Sessions Judge, Chickballapura,
sitting at Chintamani, is hereby set aside.

(iii) The matter is remanded to the trial Court with

a direction to the prosecution to make
necessary application to club this case along
with C.C. No.339/2015 pending on the file of
the Prl. Civil Judge & JMFC, Chintamani as
learned counsel for the parties admit at the
Bar that they are case and counter-case and
on such application being filed, the trial Court
shall follow the dictum of the Full Bench of this
Court in the case of State of Karnataka, by
Circle Inspector of Police -vs- Hosakeri
Ningappa and another reported in ILR
2012 KAR 509 and shall try both the case
and counter-case together after affording
necessary opportunity to both the parties,
strictly in accordance with law.
 -:16:-

(iv) It is made clear that we have not expressed

any opinion on the merits or demerits of the
case.

(v) Since the appellants/accused were taken to

the custody by virtue of the impugned
judgment and the said judgment having been
set aside, the benefit of bail granted to the
appellants/accused by the trial Court earlier
would be automatically restored.

(vi) Learned counsel for the parties shall appear

before the trial Court on 26th July 2021.

Sd/-
JUDGE

Sd/-
JUDGE

PL*