Karnataka High Court
Yeshwant vs The State Of Karnataka on 18 March, 2026
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NC: 2026:KHC-K:2546
CRL.A No. 200253 of 2022
HC-KAR
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 18TH DAY OF MARCH, 2026
BEFORE
THE HON'BLE MR. JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 200253 OF 2022
(374(Cr.PC)/415(BNSS))
BETWEEN:
YESHWANT
S/O SHRIPATI BETAJEWARGI
@ MELINKERI, AGE: 35 YEARS
OCC: KDB PRIVATE CONTRACTOR
R/O TAJ SULTANPUR VILLAGE
TQ: AND DIST: KALABURAGI
(PRESENTLY SERVING SENTENCE
AT CENTRAL JAIL, KALABURAGI)
...APPELLANT
Digitally signed by
SHIVALEELA (BY SRI. NANDKISHORE BOOB, ADVOCATE)
DATTATRAYA
UDAGI
Location: HIGH AND:
COURT OF
KARNATAKA
THE STATE OF KARNATAKA
THROUGH
KALABURAGI RURAL POLICE STATION
TQ: AND DIST: KALABURAGI
REPRESENTED BY ADDL. SPP
HIGH COURT OF KARNATAKA
BENCH AT KALABURAGI-585102
...RESPONDENT
(BY SRI.GOPALKRISHNA B. YADAV, HCGP)
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CRL.A No. 200253 of 2022
HC-KAR
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374
(2) OF CR.P.C (OLD) U/S. 415 BNSS (NEW) PRAYING TO SET
ASIDE THE JUDGMENT OF CONVICTION DATED 26.09.2022
AND SENTENCE DATED 27.09.2022 PASSED BY THE III ADDL.
DIST. AND SESSIONS JUDGE KALABURAGI IN S.C.
No.236/2019, THEREBY CONVICTING THE APPELLANT AND
SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR A
PERIOD OF TWO YEARS AND PAY FINE OF RS.10,000/- (TEN
THOUSAND RUPEES ONLY) FOR THE OFFENCES PUNISHABLE
U/SEC.353 OF INDIAN PENAL CODE. IN DEFAULT OF PAY FINE
AMOUNT, HE SHALL UNDERGO SIMPLE IMPRISONMENT FOR A
PERIOD OF SIX MONTHS. THE ACCUSED IS SENTENCED TO
UNDERGO RIGOROUS IMPRISONMENT FOR A PERIOD OF
THREE YEARS AND TO PAY FINE OF RS.10,000/- (RS.TEN
THOUSAND RUPEES ONLY) FOR THE OFFENCES PUNISHABLE
U/SEC.332 OF INDIAN PENAL CODE. IN DEFAULT TO PAY FINE
AMOUNT, HE SHALL UNDERGO SIMPLE IMPRISONMENT FOR A
PERIOD OF FIVE MONTHS. THE SUBSTANTIVE SENTENCES
SHALL RUN CONSECUTIVELY. FINE AMOUNT OF RS.20,000/-
(TWENTY THOUSAND RUPEES ONLY) SHALL BE VEST TO THE
STATE GOVERNMENT TOWARDS EXPENSES AND ETC.,
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE G BASAVARAJA
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CRL.A No. 200253 of 2022
HC-KAR
ORAL JUDGMENT
The appellant has preferred this appeal against the judgment of conviction and order on sentence passed by the III-Additional District & Sessions Judge, Kalaburagi, in S.C.No.236/2019 dated 26.09.2022.
2. For the sake of convenience, the parties are referred to as per their rank before the Trial Court.
3. The brief facts leading to filing of this appeal are that, the Circle Inspector of Police, M.B.Nagar Circle, Kalaburagi, has submitted the charge-sheet against the accused for the offences punishable under Sections 353, 332, 333, 307 of IPC and Section 3 of Prevention of Damage to Public Property Act, 1984. It is alleged by the prosecution that on 14.12.2017 at 11:00 p.m. CW.1 received a wireless message that an unknown person was transporting arms in a white car on Humnabad-Kalaburagi Highway illegally. On the basis of the said information, he informed the same to CW.4, for which he deputed to -4- NC: 2026:KHC-K:2546 CRL.A No. 200253 of 2022 HC-KAR CW.14 and CW.15 at Kinni border and deputed to CW.1 and CW.11 at Tavargera cross, CWs.1, 4, 5, 6, 8, 10, 12 and 13 were on patrolling duty near Humnabad-Kalaburagi road by putting barricades on the road. At that time, a white car bearing No.KA-34/N-1658 driven with a high speed by the accused and crossed Kinni border without adhering to signals given by CW.14 and CW.15 and also damaged barricades and same was informed by CW.14 and CW.15 to CW.4, who were waiting at Tavargera cross. CW.1 and others alerted at Tavargera cross to check all the vehicles. The accused came with a high speed and did not stop vehicle inspite of giving signals and damaged barricades. In turn, barricades dashed to CW.6 and CW.7 and sustained injuries on the left thigh of CW.6 and fell on the ground and accused tried to run away, but CW.1 gave warning to the accused to stop the vehicle. Despite giving warning, accused tried to escape towards Tavargera village by turning his vehicle. By that time, CW.1, without any option, fired from his service pistol in air. But, the -5- NC: 2026:KHC-K:2546 CRL.A No. 200253 of 2022 HC-KAR accused without stopping the car, proceeded further. Then, CW.1 again shot his service pistol towards tyre of the car. Thereafter, car was stopped by the side of the road. Accused came out by holding talwar. At that time, CWs.1, 4 to 13 told that accused involved in a murder case of Grameena Police Station and asked him to surrender, but accused tried to run away from the place. When CW.7 tried to catch, accused with an intention to escape from police, assaulted him with talwar on his right arm and right knee and caused bleeding injuries. When CWs.1, 4 and 5 tried to caught hold the accused, he tried to assault them with talwar and looking to the act of the accused, CW.5 to save the life of himself and other police officials, fired through his service pistol on the left leg of the accused. Due to the said impact, accused fell on ground and then also tried to escape from the police and again tried to assault CW.5. CW.5 fired his service pistol once again on right leg of the accused and caused injuries. Due to the injuries, fell on the ground and CWs.1, 4 to 13 -6- NC: 2026:KHC-K:2546 CRL.A No. 200253 of 2022 HC-KAR arrested the accused. On physical check up of the vehicle, they found a country made pistol and three live bullets and thereby the accused committed the alleged offences. After filing the charge-sheet, cognizance was taken for the alleged commission of offences and case was registered in C.C.No.6546/2018. Thereafter, case was committed to the Court of Sessions and it was registered in S.C.No.236/2019.
4. On hearing, the Trial Court has framed the charges against the accused for the alleged commission of offences. The same was read over and explained to the accused. Having understood the same, accused pleaded not guilty and claimed to be tried.
5. To prove the guilt of the accused, prosecution has examined in all 15 witnesses as PWs.1 to 15 and got marked 21 documents as Exs.P1 to P21 and 26 material objects marked as MOs.1 to 26. On closure of prosecution side evidence, statement under Section 313 of Cr.P.C. was -7- NC: 2026:KHC-K:2546 CRL.A No. 200253 of 2022 HC-KAR recorded. The accused has totally denied the evidence of prosecution. However, he did not choose to lead any defence evidence on his behalf.
6. Having heard the arguments on both sides, the Trial Court has acquitted the accused for the offence punishable under Sections 333 and 307 of IPC and Section 3 of Prevention of Damage to Public Property Act, 1984. However, Trial Court has convicted the accused for the offence punishable under Sections 353 and 332 of IPC and accused is sentenced to undergo rigorous imprisonment for a period of 2 years and to pay a fine of Rs.10,000/-. For the offence punishable under Section 353 of IPC. Further, accused is sentenced to undergo rigorous imprisonment for a period of 3 years and to pay a fine of Rs.10,000/- for the offence punishable under Section 332 of IPC, with default sentence. Being aggrieved by the judgment of conviction and order on sentence, the appellant has preferred this appeal. -8-
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7. Learned counsel for the appellant-accused would submit that, the impugned judgment of conviction passed by the Trial Court is contrary to law and facts. The Trial Court has not properly appreciated the evidence and has erroneously convicted the appellant. The Trial Court has ignored the fact that due to earlier enmity, the complainant has initiated a false case against the appellant.
8. It is further submitted that, the accused has already undergone judicial custody more than 3 years. However, the Trial Court has observed in the operative portion that accused is in judicial custody under body warrant. Hence, he is not entitled to the benefit of set off as required under Section 428 of Cr.P.C., which is not sustainable under law. The Trial Court has not properly appreciated the evidence on record in proper perspective and prays to allow this appeal and for modification of sentence passed by the Trial Court. -9-
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9. Per contra, the learned High Court Government Pleader would submit that the Trial Court has properly appreciated the evidence on record and passed the impugned judgment in accordance with law and facts. Absolutely there are no materials to interfere with impugned judgment of conviction and order on sentence passed by the Trial Court and sought for dismissal of this appeal.
10. Having heard the arguments on both sides and on careful examination of the materials on record, the following points would arise for consideration:
(i) Whether the Trial Court is justified in convicting the accused for the offence punishable under Sections 353 and 332 of IPC?
(ii) Whether the Trial Court is justified in not giving benefit under Section 428 of Cr.P.C.?
(iii) What order?
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11. My answer to the above points are as under:
Point No.1 : In the Affirmative.
Point No.2 : In the Negative.
Point No.3 : As per final order.
Regarding Point No.1:
12. The Trial Court has acquitted the accused for the commission of offence under Section 333 and 307 of IPC and Section 3 of Prevention of Damage to Public Property Act, 1984. However, the Trial Court has convicted the accused for the offence punishable under Sections 353 and 332 of IPC.
13. PW.1-Sangappa Hullur, Dy.S.P., has deposed as to the alleged incident. PW.2-Chandrashekhar Tigdi, CPI, has also deposed as to the alleged incident. PW3- Basavaraj, Electrician has also deposed as to the mahazar conducted by the police as per Exs.P3 and P4, and also deposed as to the seized articles.
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14. PW.4-Kushanna, Head Constable, has deposed in evidence that -
"2) On 14.12.2017, at 11pm PW-2 deputed me and CW-11 to check the vehicles on Kalaburagi Humnabad Highway at Tawaregere cross as he received an information that a car was proceeding on the said road along with illegal harms. On the aforesaid deputation we went Tawaregere cross and started checking the vehicles by putting, barricades in zigzag manner. When we were on duty at Tawaregere cross, at about 12 mid night our CPI, PSI and DSP and other sub staff were also on the said road to check the vehicles. When we were checking the vehicles, our CPI received an information that one white car crossed kinny border Without stopping the vehicle despite giving signal by damaging barricade. We alerted Tawaregere cross, at about 5.15am one white car came, we closed barricades on the road, the driver of the vehicle hit to the barricade, one of our staff CW-6 sustained injury to his thigh, CW-1 gave warning to the driver of the said car. The driver of the car took the said vehicle towards Tawaregere, CW-1 fired his service pistol on the air and gave again warning to the driver of the vehicle. However, he proceeded further, CW-1 fired on the left rear tyre. The vehicle proceeded left side on the vacant place. The driver of the vehicle alighted. On seeing, we found the said person was Yashwant who is accused in various cases and roudy sheeter. When I tried to catch hold the accused, he was holding talwar and gave blow from the said talwar towards my neck, I manage to escape but, I sustained injury to my right shoulder. Further the accused gave another blow on my right leg and he
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NC: 2026:KHC-K:2546 CRL.A No. 200253 of 2022 HC-KAR started running. PW-2 gave warning to accused not to escape but still he was trying to escape, PW-2 fired from his service pistol on the left ankle of the accused. Inspite of repeated warnings by our higher officials the accused trying to cause harm to us and also trying to us escape from us. Hence to save our lives and also to apprehend the accused PW-2 fired through his service pistol If I did not escape from the blow given by accused with talwar I could have received injury to my neck. The accused fell on the ground. We all held the accused and on tharrough inspection of the vehicle, we found a pistol and magazine with three live bullets. My higher officials secured tango vehicle and sent the accused to hospital for treatment. My higher officials took myself and CW-6 to United hospital for treatment. The aforesaid car had no registration number. The said car was Mahindra XUV-500.
3) I was admitted in United hospital for about 7 days. On the same day CW-24 came to hospital and recorded my statement and seized my cloths which were stained with blood by drawing Panchanama in the presence of panchas. I now see one pair police uniform which were seized from me by CW-24 which are already marked as M.O 21. While seizing cloths, photographs were also taken, now I see Ex.P.8 06 photographs and I am seeing the two photographs along with panchas and CW-24. I now see photographs of car and the place where the incident took place, which were already collectively marked as Ex P4.
15. PW.5-Basavaraj, PC No.185, has deposed in his evidence that -
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NC: 2026:KHC-K:2546 CRL.A No. 200253 of 2022 HC-KAR "2) On 14.12.2017, at about 11pm, our PSI deputed myself and CW-14 to Kinny border on the premise that some unknown vehicle was transporting illegal harms on Humnabad highway. Myself and CW- 14 went to Kinny border to check the vehicles as per the directions. At about 4.30am on 15.12.2017, we were checking all the vehicles, a white colour car came in high speed, despite our signals it did not stop, hit the side of barricade and proceeded further. CW-14 immediately informed the same to our higher officials. I have given statement before I.O."
16. PW.6-Hussain Basha, Head Constable, has deposed in his evidence that -
"2) On 14.12.2017, at 11pm PW-2, myself and CW-13 went to Tawaregere cross on the basis of the information received by PW-2 that some unknown vehicle was transporting illegal weapons on Humnabad and Kalaburagi highway. By that time PW-4 and 11 were already present there and checking the vehicles which were moving on the highway. CW-1 and PW-1 also came to the spot along with CW-1, CW-8 and 9 were present. We all were on duty on the said night.
3) At about 4.30am our higher officials received wireless information from Kinny border that one white unknown car crossed Kinny border by damaging barricade despite giving signal to stop the vehicle. At about 5.50am a white car came from Humnabad side, we gave signal to stop the vehicle.
Despite our signal the driver of the said vehicle did not stop but dashed to barricade which caused injury to Kupendra on his right thigh. CW-1 gave strict
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NC: 2026:KHC-K:2546 CRL.A No. 200253 of 2022 HC-KAR warning to stop the vehicle but, he did not stop the same, CW-1 fired his service pistol on air. The driver of the vehicle took towards Tavaragera, when did not stop the vehicle CW-1 fired on the left rear tyre from his service pistol, due to the same the vehicle dashed to road side board and proceeded towards left side. We all surrounded the vehicle, the driver of the vehicle alighted along with talwar, when PW-4 tried to apprehend him, the driver of the car gave blow with talwar, PW-4 tried to manage to escape from the said blow and the talwar hit on his right shoulder, PW-4 received bleeding injury. On seeing the driver of the vehicle we noticed the said person was Yashwant (Accused herein) who was accused in various cases and also rowdy sheeter. The accused gave one more blow with talwar which caused injury to right leg of PW-4. CW-1 and PW-2 gave strict warning to surrender. Inspite of that the accused trying to cause harm to us and trying to escape, PW- 2 fired from his pistol on his left ankle with one round, the accused further tried to assault the police officials, PW-2 again fired one more round on the left ankle, the accused fell on the ground we all held him. On detail inspection of the vehicle we noticed one pistol and magazine loaded with three live bullets in dash board. Our higher officials sent the accused to Govt. hospital for treatment and CW-6 and PW-4 to United hospital.
4) I gave statement before CW-24 on 15.12 2017. 1 can identify the accused, vehicle, revolver, magazine with live bullets and barricade. Witness states the said vehicle was Mahindra XUV-500 but it had no number plate."
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17. PW.7-Kupendra, Head Constable, has deposed in his evidence that -
"2) On 14.12.2017, at 11pm CW-1, myself, CW-8 to 10 went to Tawaregere cross on the basis of the information received by CW-1 that some unknown vehicle was transporting illegal weapons on Humnabad and Kalaburagi highway. Similarly, CW-
14 and PW-5 were deputed at Kinny border to check the vehicles. PW-1, 4, 6 also came to Tawaregere cross on the basis of the said information. We were checking the vehicles which were moving on the highway
3) At about 4.30am, our higher officials received wireless information from Kinny border that one white unknown car crossed Kinny border by damaging barricade despite giving signal to stop the vehicle. At about 5.50am a white car came from Humnabad side, we gave signal to stop the vehicle. Despite our signal the driver of the said vehicle did not stop but dashed to barricade which caused injury to my left thigh. CW-1 gave strict warning to stop the vehicle but, the driver of the car did not stop the same, CW-1 fired his service pistol on air. The driver of the vehicle took towards Tavaragera, when did not stop the vehicle CW-1 fired on the left rear tyre from his service pistol, due to the same the vehicle dashed to road side board and proceeded towards left side. We all surrounded the vehicle, the driver of the vehicle alighted along with talwar, when PW-4 tried to apprehend him, the driver of the car gave blow with talwar, PW-4 managed to escape from the said blow and the talwar hit on his right shoulder, PW-4 received bleeding injury. On seeing the driver of the vehicle we noticed the said person was Yashwant
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NC: 2026:KHC-K:2546 CRL.A No. 200253 of 2022 HC-KAR (Accused herein) who was accused in various cases and also rowdy sheeter. The accused gave one more blow with talwar which caused injury to right leg of PW-4. CW-1 and PW-2 gave strict warning to surrender. Inspite of that the accused trying to cause harm to us and trying to escape, PW-2 fired from his pistol on his left ankle with one round, the accused further tried to assault the police officials, PW-2 again fired one more round on the left ankle, the accused fell on the ground we all held him. On detail inspection of the vehicle we noticed one pistol and magazine loaded with three live bullets in dash board of the car. Our higher officials sent the accused to Govt. hospital for treatment. PW-4 and myself were sent to United hospital.
4) I gave statement before CW-24 on 15.12.2017. I can identify the accused, vehicle, revolver, magazine with live bullets and barricade. Witness states the said vehicle was Mahindra XUV- 500, but it had no number plate. The witness has identified the accused who is present before the court.
5) On the same day, CW-24, visited United hospital and recorded my statement. CW-24 also seized my pant with the help of two panchas by drawing seizure Panchanama. I now see the blue colour tore pant and the same is marked as M.O 24. I was admitted in the hospital for about three days."
18. PW.8-Dr. Ravi, Specialist, GIMS, Kalaburagi, has deposed in his evidence as to the examination of accused and issuance of wound certificate as per Ex.P11.
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19. PW.11- and PW.15 have deposed as to their respective investigation.
20. PW.10-Dr. Sudeendra Deshmuk, has deposed as to the examination of the injured - Kupendra, who came with the history of assault and he has examined Kupendra and Kushanna and found the injuries as per Ex.P13 and Ex.P14.
21. PW.12-Jagadev Moti is the Assistant Executive Engineer, PWD, has deposed as to the sketch prepared as per Ex.P16.
22. PW.13-Dr. Raghavendra B.G., Senior Scientific Officer, RFSL, has deposed as to the reports submitted by him as per Exs.P17 and P18.
23. PW.14-Dr.M.Kiran Kumar, has deposed as to the report Exs.P19 and P20.
24. On careful examination of the entire evidence on record, I do not find any material to discard the
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NC: 2026:KHC-K:2546 CRL.A No. 200253 of 2022 HC-KAR evidence of material prosecution witnesses. The Trial Court has properly appreciated the evidence on record and convicted the accused for the commission of offence under Sections 353 and 332 of IPC. Hence, I answer point No.1 in the affirmative.
Regarding Point No.2:
25. With regard to sentence passed by the Trial Court is concerned, the Trial Court has passed the sentence as under:
ORDER The accused is sentenced to undergo rigorous imprisonment for a period of two years and to pay fine of Rs.10,000/- (Ten thousand rupees only) for the offence punishable under Section 353 of Indian Penal Code. In default to pay fine amount, he shall undergo simple imprisonment for a period of Six months.
The accused is sentenced to undergo rigorous imprisonment for a period of three years and to pay fine of Rs.10,000/- (Ten thousand rupees only) for the offence punishable under Section 332 of Indian Penal Code. In default to pay fine amount, he shall undergo simple imprisonment for a period of Nine months.
The substantive sentences shall run consecutively.
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NC: 2026:KHC-K:2546 CRL.A No. 200253 of 2022 HC-KAR Fine amount of Rs.20,000/-(Twenty thousand rupees only) shall be vest to the State Government towards expenses.
Records reveal that the accused is in JC under body warrant. Hence, he is not entitled to the benefit of set-off as required U/Section 428 of Cr.P.C.
M.O.2 to 12, 16 to 22, 24 and 26 are being worthless, ordered to be destroyed, M.O.13 to 15 i.e., one screen touch Samsung mobile, one Samsung mobile and one Carbon mobile shall be confiscated to State Government; M.O.1/23 and 25 are service pistols of PW.2 and 9 ordered to be sent to District Armory after receiving acknowledgment only after appeal period is over.
The order of release of the vehicle bearing Reg. No.KA-32/N-1658 dated 17.07.2021 belongs to accused be made absolute after expiry of appeal period.
Furnish copy of the Judgment and order of sentence to accused or his counsel at free of cost forthwith."
26. The Trial Court has refused to give benefit of set off under Section 428 of Cr.P.C. on the ground that the accused was in judicial custody under body warrant. The Trial Court has not assigned proper reason regarding giving benefit of set off as required under Section 428 of Cr.P.C.
27. Section 428 of Cr.P.C. contemplates that,
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NC: 2026:KHC-K:2546 CRL.A No. 200253 of 2022 HC-KAR "428. Period of detention undergone by the accused to be set off against the sentence of imprisonment.
- where an accused person has, on conviction, been sentenced to imprisonment for a term , not being imprisonment in default of payment of fine, the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him."
28. The Trial Court has committed an error in this regard. Hence, the appellant-accused is entitled for benefit of set off under Section 428 of Cr.P.C.
29. The Trial Court has passed substantive sentences to run consecutively. But in this regard, the Trial Court has not assigned any reason. Considering the facts and circumstances of the case, it is just and proper to modify holding that substantive sentences shall run concurrently. Accordingly, I answer point No.2 in the negative.
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NC: 2026:KHC-K:2546 CRL.A No. 200253 of 2022 HC-KAR Regarding Point No.3:
30. For the aforesaid reasons and discussions, I proceed to pass the following:
ORDER
(i) The appeal is partly allowed.
(ii) The judgment of conviction passed by the III-Additional District and Sessions Judge, at Kalaburagi in S.C.No.236/2019 dated 26.09.2022 is confirmed.
(iii) The sentence passed by the Trial Court for the offence punishable under Section 353 and 332 of IPC is also confirmed.
(iv) The sentences shall run concurrently instead of consecutively as ordered by the Trial Court.
(v) The Additional Registrar General is directed to send a copy of this judgment to the concerned jail authorities.
Sd/-
(G BASAVARAJA) JUDGE SDU LIST NO.: 1 SL NO.: 43 CT:BH