Karnataka High Court
Muttappa S/O Kallappa Kumbar vs The State Of Karnataka And Ors on 5 June, 2024
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CRL.A No.3557 of 2013
C/W CRL.A No.3567 of 2013
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO.3557 OF 2013
C/W
CRIMINAL APPEAL NO.3567 OF 2013
IN CRL.A NO.3557 OF 2013
BETWEEN:
MUTTAPPA
S/O KALLAPPA KUMBAR,
AGE: 28 YEARS, OCC: AGRICULTURE,
R/O. ARASHANAGI VILLAGE,
Digitally signed by
BASALINGAPPA TQ. BASAVAJA-BAGEWADI,
SHIVARAJ
DHUTTARGAON DISTRICT: BIJAPUR.
Location: HIGH
COURT OF
KARNATAKA ...APPELLANT
(BY SRI. R.S. LAGALI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REP. BY THE PSI,
NIDAGUNDI PS.
2. SUBHASH
S/O TULAJU LAMANI,
AGE: 48 YEARS,
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CRL.A No.3557 of 2013
C/W CRL.A No.3567 of 2013
OCC. AGRICULTURE,
R/O GANI TANDA,
TQ. B.BAGEWADI,
DISTRICT: BIJAPUR.
3. VITHAL
S/O TULAJU LAMANI
AGE: 57 YEARS,
OCC. AGRICULTURE,
R/O GANI TANDA,
TQ. B.BAGEWADI,
DISTRICT: BIJAPUR.
4. ANNAPPA
S/O SUBHASH LAMANI
AGE: 23 YEARS,
OCC. AGRICULTURE,
R/O GANI TANDA,
TQ. B.BAGEWADI
DISTRICT: BIJAPUR.
5. GURAPPA
S/O HANAMAPPA KUMBAR
AGE: 56 YEARS,
OCC. AGRICULUTRE,
R/O ARASHANAGI VILLAGE,
TQ. BASAVANA-BAGEWADI,
DISTRICT: BIJAPUR.
6. SHIVAPPA
S/O GURAPPA KUMBAR
AGE: 42 YEARS,
OCC: AGRICULTURE,
R/O ARASHANAGI VILLAGE,
TQ. BASAVANA BAGEWADI,
DISTRICT: BIJAPUR.
7. YALLAPPA
S/O GURAPPA KUMBAR
AGE: 23 YEARS,
OCC: AGRICULUTRE,
R/O ARASHANAGI VILLAGE,
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CRL.A No.3557 of 2013
C/W CRL.A No.3567 of 2013
TQ. BASAVANA-BAGEWADI,
DISTRICT: BIJAPUR.
8. MALLAPPA
S/O GURAPPA KUMBAR
AGE: 22 YEARS,
OCC: AGRICULUTRE,
R/O ARASHANAGI VILLAGE,
TQ. BASAVANA-BAGEWADI,
DISTRICT: BIJAPUR.
9. SMT. MAHADEVI
W/O NARASAPPA KUMBAR
AGE: 52 YEARS,
OCC: AGRICULUTRE,
R/O ARASHANAGI VILLAGE,
TQ. BASAVANA-BAGEWADI,
DISTRICT: BIJAPUR.
10. SMT. SHANTAWWA
W/O GURAPPA KUMBAR
AGE: 50 YEARS,
OCC. AGRICULUTRE,
R/O ARASHANAGI VILLAGE,
TQ. BASAVANA-BAGEWADI,
DISTRICT: BIJAPUR.
...RESPONDENTS
(BY SRI. SIDDALING P.PATIL, ADDL. S.P.P., FOR R1;
SRI. SHIVANAND V. PATTANASHETTI, ADVT. FOR R2 TO R4,
R6 AND R9;
NOTICE TO R5, R7, R8, R10 ARE SERVED)
THIS CRL.A. IS FILED UNDER SECTION 372 OF CR.P.C,
PRAYING TO ADMIT THIS APPEAL, CALL FOR THE RECORDS
FROM THE COURT BELOW AND SET ASIDE THE JUDGMENT OF
ACQUITTAL IN RESPECT OF OFFENCES U/S.307 IPC PASSED BY
I ADDL. SENIOR JUDGE BIJAPUR IN SESSIONS CASE
NO.149/2011 DATED 21.03.2013 AND COURT THE RSP. NO.2-
10 IN THE INTEREST OF JUSTICE.
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CRL.A No.3557 of 2013
C/W CRL.A No.3567 of 2013
IN CRL.A NO.3567 OF 2013
BETWEEN:
1. SUBHASH
S/O TULAJU LAMANI
AGE: 48 YEARS,
OCC. AGRICULTURE,
2. VITHAL
S/O TULAJU LAMANI
AGE: 57 YEARS,
OCC. AGRICULTURE,
3. ANNAPPA @ ANAND
S/O SUBHASH LAMANI
AGE: 23 YEARS,
OCC. AGRICULTURE,
ALL ARE R/O GANI TANDA,
TQ. B.BAGEWADI,
DISTRICT: BIJAPUR.
4. GURAPPA
S/O HANAMAPPA KUMBAR
AGE: 56 YEARS,
OCC. AGRICULUTRE,
5. SHIVAPPA
S/O GURAPPA KUMBAR
AGE: 44 YEARS,
OCC: AGRICULTURE,
6. YALLAPPA
S/O GURAPPA KUMBAR
AGE: 23 YEARS,
OCC: AGRICULUTRE,
7. MALLAPPA
S/O GURAPPA KUMBAR
AGE: 22 YEARS,
OCC: AGRICULUTRE,
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CRL.A No.3557 of 2013
C/W CRL.A No.3567 of 2013
8. SMT. MAHADEVI
W/O NARASAPPA KUMBAR
AGE: 52 YEARS,
OCC: AGRICULUTRE,
9. SMT. SHANTAWWA
W/O GURAPPA KUMBAR
AGE: 50 YEARS,
OCC. AGRICULUTRE,
ALL ARE R/O ARASHANAGI VILLAGE,
TQ. BASAVANA-BAGEWADI,
DISTRICT: BIJAPUR.
...APPELLANTS
(BY SRI.SHIVANAND V. PATTANASHETTI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
R/BY ADDL. S.P.P.,
CIRCUIT BENCH GULBARGA.
(THROUGH NIDAGUNDI, P.S)
....RESPONDENT
(BY SRI. SIDDALING P.PATIL, ADDL. SPP)
THIS CRL.A. IS FILED UNDER SECTION 374(2) OF
CR.P.C, PRAYING TO ADMIT THIS APPEAL, CALL FOR THE
RECORDS FROM THE COURT BELOW AND SET ASIDE THE
JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED
21.03.2013 PASSED BY THE I ADDITIONAL SESSIONS JUDGE,
BIJAPUR, IN S.C. NO.149/2011 AND ACQUIT THE
APPELLANTS/ACCUSED NO.1 TO 9 IN THE INTEREST OF
JUSTICE AND EQUITY.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS
DAY RAJESH RAI K J., DELIVERED THE FOLLOWING:
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CRL.A No.3557 of 2013
C/W CRL.A No.3567 of 2013
JUDGMENT
These two appeals are directed against the judgment of conviction and order of sentence passed by the I Additional Sessions Judge, Bijapur in S.C.No.149/2011 dated 21.03.2013, wherein the learned Sessions Judge convicted the accused for the offences punishable under Sections 143, 147, 148, 447, 341, 323, 324 and 325 r/w Section 149 of IPC and sentenced them to undergo simple imprisonment for a period of two months and to pay a fine of Rs.500/- each, in default, to suffer simple imprisonment for a period of ten days for the offence punishable under Section 143 of IPC, they sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs.1000/- each, in default, to suffer simple imprisonment for a period of fifteen days for the offence punishable under Section 147 of IPC, further they sentenced to undergo simple imprisonment for a period of six months and to pay a fine of 1000/- each, in default, to suffer simple imprisonment for a period of fifteen days for the offence punishable under Section 148 of IPC, further -7- NC: 2024:KHC-K:3594-DB CRL.A No.3557 of 2013 C/W CRL.A No.3567 of 2013 they sentenced to undergo simple imprisonment for a period of one month and to pay a fine of Rs.500/- each, in default, to suffer simple imprisonment for a period of ten days for the offence punishable under Section 447 of IPC, they also sentenced to undergo simple imprisonment for a period of two months and to pay a fine of Rs.500/- each, in default, to suffer simple imprisonment for a period of ten days for the offence punishable under Section 341 of IPC, further sentenced them to undergo simple imprisonment for a period of six months and to pay a fine of Rs.500/- each, in default, to suffer simple imprisonment for a period of ten days for the offence punishable under Section 323 of IPC, further they sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs.1000/- each, in default, to suffer simple imprisonment for a period of fifteen days for the offence punishable under Section 324 of IPC and they sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1000/- each, in default, to suffer simple imprisonment for a period of one month for the -8- NC: 2024:KHC-K:3594-DB CRL.A No.3557 of 2013 C/W CRL.A No.3567 of 2013 offence punishable under Section 325 of IPC. It is also directed that the sentences passed against the accused shall run concurrently. However, the accused i.e., appellants in Crl.A.No.3567/2013 and respondent Nos.2 to 10 in Crl.A.No.3557/2013 were acquitted for the offence punishable under Section 307 of IPC.
2. The factual matrix of the prosecution case is as follows:
There was a civil dispute pending between the accused and complainant-Muttappa Kallappa Kumbar, who got examined as PW.2, in respect of land bearing Sy.No.61/3 of Gani Village and PW.2 obtained a prohibitory order of injunction against the accused by the Civil Court. Such being the scenario, on 15.02.2011 at about 6:00 p.m., all the accused persons unlawfully trespassed into the said land and engaged in cutting the jowar crop grown in the land. By witnessing the same, PW.2 and his brothers rushed to the said spot and requested the accused not to cut the crops since there was -9- NC: 2024:KHC-K:3594-DB CRL.A No.3557 of 2013 C/W CRL.A No.3567 of 2013 an injunction order in exist. Later, when the complainant and his brothers were working in neighboring land bearing Sy.No.61/2, all the accused persons trespassed into the said land armed with deadly weapons, took up a quarrel with the complainant and assaulted him and his brothers with an axe and an iron rod and caused bleeding injuries to PWs.2 to 6 and also some of the accused threw chilly powder into the eyes of the complainant and his brothers. Thereafter, the injured persons were shifted to hospital for treatment. PW.2 lodged the complaint before Nidagundi Police and the same has been registered in Crime No.20/2011 for the offences punishable under Sections 143, 147, 148, 447, 341, 323, 324, 325, 504 and 307 r/w Section 149 of IPC. Thereafter, the respondent-Police arrested the accused and completed the investigation and laid the charge sheet against the accused for the offences stated supra before the Committal Court.
3. Post committal of the case before the Sessions Court, the prosecution in totally examined 13 witnesses as
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NC: 2024:KHC-K:3594-DB CRL.A No.3557 of 2013 C/W CRL.A No.3567 of 2013 PWs.1 to 13 so also got marked 11 documents as Exs.P1 to P11 and identified 5 material objects as MOs.1 to 5.
4. After completion of the prosecution evidence, the learned Sessions Judge read over the incriminating evidence of the material witnesses to the accused as contemplated under the provisions of Section 313 of Cr.P.C. Though the accused denied the same, they neither chose to examine any witnesses on their behalf nor got marked any documents.
5. Post assessment of oral and documentary evidence placed before the learned Sessions Judge, the learned Sessions Judge convicted the accused for the aforementioned offences and sentenced them as stated supra. Being aggrieved by the said judgment, the accused filed Crl.A.No.3567/2013 to set-aside the judgment of conviction and the order of sentence passed by the trial Court so also the complainant-PW.2 has filed Crl.A.No.3557/2013 under Section 372 of Cr.P.C praying to set-aside the portion of the judgment in which the
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NC: 2024:KHC-K:3594-DB CRL.A No.3557 of 2013 C/W CRL.A No.3567 of 2013 accused acquitted for the offence punishable under Section 307 of IPC and to convict them for the said offence.
6. We have heard the learned counsel Sri.Shivanand V Pattanashetti for the appellants/accused in Crl.A.No.3567/2013 for respondent Nos.2 to 4, 6 and 9 in Crl.A.No.3557/2013 so also learned counsel Sri R.S. Lagali for the victim/complainant in Crl.A.No.3557/2013 and the learned Additional SPP Sri.Siddaling P Patil for the respective respondent/State in both the appeals.
7. It is the primary contention of the learned counsel for the appellants/accused in Crl.A.No.3567/2013 that the learned Sessions Judge has erred while passing the impugned judgment by convicting the accused for the offences punishable under Sections 143, 147, 148, 447, 341, 323, 324, 325 r/w Section 149 of IPC without there being any cogent evidence or materials placed by the prosecution. The material independent witnesses i.e., PWs.1, 8 and 11 have not supported the prosecution case. PW.9-Doctor, who treated the injured i.e., PW.3,
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NC: 2024:KHC-K:3594-DB CRL.A No.3557 of 2013 C/W CRL.A No.3567 of 2013 has stated that, one Doctor Shanakaragouda issued the wound certificate and the same bears his signature, however, the said Doctor has not been examined. He would further contend that the evidence of other injured eyewitnesses i.e., PWs.2 to 6 suffers from major contradictions and omissions. As such, the same cannot be relied upon for convicting the accused. He also contends that in order to prove the charge under Section 325 of IPC, the prosecution has to place sufficient materials to show that the grievous hurt was caused by dangerous weapons or means. Since the learned Sessions Judge opined that the offence punishable under Section 307 of IPC has not been proved, the conviction for the offence punishable under Section 325 of IPC also not sustainable. According to the learned counsel, since the learned Sessions Judge came to the conclusion that there was a civil dispute pending between the parties, the Sessions Judge wrongly convicted the accused and sentenced them for the offences they have charged.
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8. Per contra, the learned counsel in Crl.A.No.3557/2013 would contend that the learned Sessions Judge has committed a serious error by convicting the accused for the lesser offence and acquitting them for the offence punishable under Section 307 of IPC. According to learned counsel, when the trial Court holds that the prosecution has proved beyond all reasonable doubt that the incident is said to have occurred on 15.02.2011 and the accused have assaulted the injured by forming an unlawful assembly with deadly weapons and committed the bleeding injuries to PWs.2 to 6 in spite of that, acquitting the accused for the offence punishable under Section 307 of IPC is not justifiable. The learned Sessions Judge also failed to appreciate the evidence that the accused had clear intention to commit the murder of PW.2 and others, thereby, they assaulted PW.2 on his head and chin with deadly weapon like axe. To that effect, the prosecution placed the wound certificates, i.e., Exs.P5 and 9 to 11 issued by the Doctors-PWs.9 and 13. Those documents were not considered by the learned Sessions
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NC: 2024:KHC-K:3594-DB CRL.A No.3557 of 2013 C/W CRL.A No.3567 of 2013 Judge while passing the impugned judgment. Accordingly, he prays to allow the appeal by convicting the accused for the offence punishable under Section 307 of IPC.
9. Having heard the learned counsel for the parties so also having perused the records made available before us, the points that would arise for our consideration are:
1. "Whether the judgment and order challenged under these appeals suffers from any perversity or illegality?"
2. "Whether the trial Court/Sessions Judge is justified in convicting the appellants only for the offences punishable under Sections 143, 147, 148, 447, 341, 323, 324 and 325 r/w Section 149 of IPC by acquitting for the offence punishable under Section 307 of IPC?"
10. This Court being the Appellate Court, in order to, re-appreciate the entire material on record, it is relevant to consider the entire prosecution witnesses and the documents relied upon. The cursory glance of the evidence of the witnesses available on record are as under:
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NC: 2024:KHC-K:3594-DB CRL.A No.3557 of 2013 C/W CRL.A No.3567 of 2013 i. PW.1-Tippanna Siddappa Tubaki, the eyewitness to the incident, turned hostile to the prosecution case.
ii. PW.2-Muttappa Kallappa Kumbar, the complainant and injured, who lodged the complaint as per Ex.P2.
iii. PW.3-Vithal Kallappa Kumbar, PW.4- Nagappa Kallappa Kumbar and PW.6- are the brothers of the complainant and injured witnesses.
iv. PW.5-Basappa Gurubasappa Kumbar, the witness for the spot mahazar as per Ex.P3.
v. PW.7-Shrishail Kallappa Kumbar, the one more brother of PW.1, is the eyewitness to the incident.
vi. PW.8-Vithal Ningappa Managuli, who is the owner of the neighboring land, came to the spot after the incident, however, he partly turned hostile to the prosecution case.
vii. PW.9-Dr.Sunil Kallur, who examined PW.3 and issued wound certificate as per Ex.P5.
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NC: 2024:KHC-K:3594-DB CRL.A No.3557 of 2013 C/W CRL.A No.3567 of 2013 viii. PW.10-Dundappa Jatteppa Managuli, co-
pancha to the spot mahazar Ex.P3. ix. PW.11-Tippanna Jatteppa Tubaki, the circumstantial witness, who turned hostile to the prosecution case.
x. PW.12-S.Y. Maradi, the then PSI of respondent-Police investigated the case and laid the charge sheet against the accused.
xi. PW.13-Dr. Krishnareddy, who had examined PWs.2, 4 and 6 and issued wound certificates as per Exs.P9, 11 and 10 respectively.
11. On careful perusal of the above evidences, it could be seen that there was a civil dispute pending between PW.2 and the accused in respect of land bearing Sy.No.61/3 wherein PW.2 obtained a prohibitory order of injunction against the accused. In spite of that, the accused trespassed the property of the complainant and made an attempt to cut the jowar crop in the said disputed
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NC: 2024:KHC-K:3594-DB CRL.A No.3557 of 2013 C/W CRL.A No.3567 of 2013 land. By careful perusal of the evidence of PWs.2 to 6, though they have supported the case of the prosecution and deposed about the assault made by the accused to them, none of them have stated that the accused had such intention to commit the murder of either PW.2 or his brothers. Admittedly, the incident occurred at a spur of the moment due to the grave and sudden provocation when the complainant obstructed the accused not to enter the disputed land. Nevertheless, on perusal of the evidence of the injured witnesses, the incident of the accused trespassing into the property of the complainant and assaulting PWs.2 to 6 is proved by the prosecution by placing the evidence of the injured witnesses, i.e., PWs.2, 3, 4 and 6. All these witnesses categorically deposed that on the relevant date and time, the accused trespassed the property of PW.2 and thereby assaulted them, among them, PW.3 sustained grievous injury. The said evidence of the above witnesses is supported by Ex.P5-wound certificates issued by PW.9-Doctor so also Exs.P9 to 11 issued by PW.13-Doctor, who examined PWs.2, 4 and 6.
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NC: 2024:KHC-K:3594-DB CRL.A No.3557 of 2013 C/W CRL.A No.3567 of 2013 Additionally, PW.7 one more eyewitness to the incident also supported the case of the prosecution. PWs.5 and 10 are the panch witnesses, who supported the case of the prosecution and deposed about the drawing of spot mahazar by PW.12. Hence, there is no reason to disbelieve their evidence.
12. Though the learned counsel for the accused contends that there are major contradictions and omissions forthcoming in the evidence of the injured eyewitness, the same does not go to the root of the prosecution case. Even otherwise, their evidence cannot be discarded only for the reason that they are relatives/partisan witnesses. Their oral evidence supports the medical evidence, coupled with the evidence of the Investigation Officer-PW.12.
13. In that view of the matter, we are of the considered view that the learned Sessions Judge has rightly convicted the accused for the offences punishable under Sections 143, 147, 148, 447, 341, 323 and 324 of
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NC: 2024:KHC-K:3594-DB CRL.A No.3557 of 2013 C/W CRL.A No.3567 of 2013 IPC. As far as Section 325 of IPC is concerned, as discussed supra, the alleged offence committed by the accused in a spur of moment on a grave and sudden provocation falls within the ambit of Section 335 of IPC as contemplated under Section 325 of IPC. As such, the conviction imposed by the trial Court for the offence punishable under Section 325 of IPC has to be modified into Section 335 of IPC. As far as the sentence imposed by the trial Court is concerned, the incident is of the year 2011 and ever since then, the accused are on bail and there are no such bad antecedents forthcoming against them after this incident, as stated by the learned Addl. SPP. We are of the view that, instead of committing the accused to judicial custody, after a lapse of 13 years, it is appropriate to enhance the fine amount and modify the sentence imposed by the trial Court for the offences they have been convicted.
14. As discussed supra, since the prosecution failed to establish the cogent evidence to prove that the accused
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NC: 2024:KHC-K:3594-DB CRL.A No.3557 of 2013 C/W CRL.A No.3567 of 2013 had such intention to commit the murder of either PW.2 or his brothers, i.e., PWs.3 to 6 and the incident was caused due to civil dispute, we are of the view that the prosecution failed to establish the guilt of the accused for the offence punishable under Section 307 of IPC and learned Sessions Judge has rightly acquitted the accused for the said charge. Accordingly, the appeal preferred by the victim is liable to be dismissed.
In that view of the matter, we answer the points raised above in the negative and proceed to pass the following:
ORDER i. The appeal filed by the victim in Crl.A.No.3557/2013 is dismissed. ii. The appeal filed by the accused in Crl.A.No.3567/2013 is allowed-in-part. iii. The sentence imposed by the trial Court for the offence punishable under Section 325 of IPC is modified to Section 335 of IPC and the accused are directed to pay
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NC: 2024:KHC-K:3594-DB CRL.A No.3557 of 2013 C/W CRL.A No.3567 of 2013 a fine of Rs.2,000/- each, in default of payment of fine, they shall suffer simple imprisonment for a period six months. iv. The sentence of imprisonment for the offences punishable under Sections 143, 147, 148 and 324 is modified and the accused are directed to pay a fine of Rs.2,00,000/-, in total. In default of payment of fine, they shall undergo simple imprisonment for a period six months.
v. The sentence of imprisonment for the offences punishable under Sections 447, 323 and 341 is modified and the accused are directed to pay a fine of Rs.2,000/- each. In default of payment of fine, they shall undergo simple imprisonment for a period of ten days.
vi. The accused shall deposit the fine amount within a period of four weeks' from the date of receipt of copy of this order.
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NC: 2024:KHC-K:3594-DB CRL.A No.3557 of 2013 C/W CRL.A No.3567 of 2013 vii. If the fine amount is deposited, the learned Sessions Judge is requested to intimate the same to PWs.2, 3, 4 and 6, the same shall be paid to them equally. viii. If the accused failed to deposit the fine amount, the learned Sessions Judge is requested to secure the presence of the accused to commit them to prison to serve the default sentence.
ix. The bail bonds executed by the accused stand cancelled.
x. Registry is directed to send back the trial Court records along with the copy of this order, forthwith.
Sd/-
JUDGE Sd/-
JUDGE HKV List No.: 1 Sl No.: 1 CT;BN