Karnataka High Court
Shivalingappa S/O Hanumantappa ... vs The State Of Karnataka on 30 May, 2023
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CRL.RP No. 100197 of 2015
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 30TH DAY OF MAY, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO. 100197 OF 2015
BETWEEN:
1. SHIVALINGAPPA S/O HANUMANTAPPA HAKKALADAVAR
AGE :MAJOR, OCC : AGRICULTURE,
R/O : KIRAWADI, TQ : HANGAL,
DIST: HAVERI.
2. NAGAPPA S/O HANUMANTAPPA HAKKALADAVAR
AGE :MAJOR, OCC : AGRICULTURE,
R/O : KIRAWADI, TQ : HANGAL,
Digitally DIST: HAVERI.
signed by J
MAMATHA
J
MAMATHA Date: 3. FAKKIRAPPA S/O HANUMANTAPPA HAKKALADAVAR
2023.06.01
10:34:15 AGE :MAJOR, OCC : AGRICULTURE,
+0530
R/O : KIRAWADI, TQ : HANGAL,
DIST: HAVERI.
4. BASAVARAJ S/O HANUMANTAPPA HAKKALADAVAR
AGE :MAJOR, OCC : AGRICULTURE,
R/O : KIRAWADI, TQ : HANGAL,
DIST: HAVERI.
5. RAMAPPA S/O HANUMANTAPPA HAKKALADAVAR
AGE :MAJOR, OCC : AGRICULTURE,
R/O : KIRAWADI, TQ : HANGAL,
DIST: HAVERI.
...PETITIONERS
(BY SHRI VEERESH S. GADADDAD AND
S.P. KHANDIBAGUR, ADVOCATES)
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CRL.RP No. 100197 of 2015
AND:
THE STATE OF KARNATAKA
SUB URBAN POLICE STATION,DHARWAD
R/BY THE ADDL.SPP HIGH COURT BENCH,
DHARWAD.
...RESPONDENT
(BY SHRI PRAVEEN K. UPPAR, HCGP)
***
THIS CRIMINAL REVISION PETITION IS FILED U/S 397(I)
OF CR.P.C. SEEKING TO SET ASIDE THE JUDGEMENT OF
CONFIRMINF THE JUDGEMENT PASSED BY THE TRIAL COURT
IN CRI. APPEAL NO.37/2008 DTD:10/07/2015 PASSED BY IIND
ADDL. DIST. & SESSIONS JUDGE, HAVERI SITTING AT
RANEBENNUR. OFFENCE U/S 143, 147, 148, 323, 324, 504,
AND 326, R/W SEC. 149 IPC HAMSABHAVI. P.S.
CRIM.NO.44/04, AND TO SET ASIDE THE JUDGMENT AND
ORDER OF CONVICTION PASSED BY THE CIVIL JUDGE (JR.DN)
AND JMFC COURT, HIREKERUR IN CC.NO.497/2004 DTD:
24-05-2008 BY ACQUITTING THE PETITIONERS FOR THE
CHARGES LEVELED AGAINST THEM BY SETTING THEM AT
LIBERTY.
THIS REVISION PETITION COMING ON FOR FINAL
HEARING AND THE SAME HAVING BEEN HEARD AND
RESERVED FOR ORDER ON 20.03.2023, THIS DAY, THE
COURT, MADE THE FOLLOWING:
ORDER
Revision petitioners/accused feeling aggrieved by judgment of first appellate Court on the file of II Addl. District and Sessions Judge, Haveri sitting at Ranebennur in Crl.A.37/2008, dated 10.07.2015, preferred this Revision Petition. -3- CRL.RP No. 100197 of 2015
2. Parties to Revision Petitions are referred with their ranks assigned before Trial Court for the sake of convenience of discussion.
3. The factual matrix leading to the case of prosecution can be stated in nutshell to the effect that on 1.6.2004 at 8.30 a.m. at Purakondikoppa village in a common land belonging to them, all accused formed themselves into unlawful assembly being armed with deadly weapons, picked up quarrel with complainant and CWs. 6 to 9. Accused assaulted complainant and CWs. 6 to 9 by means of whip and Shovel stalk and also with hands, thereby caused injuries to them. It is further alleged that accused have abused CWs.1 and 6 in filthy language, so as to insult them and such insult likely to cause them to break public peace or to commit offence. On these allegations made in the complaint, investigation was carried out and charge sheet came to be filed.
4. Accused was secured before the trial Court through process of law. The Trial Court on being prima facie satisfied framed the charge against accused for the offences alleged against them. All accused pleaded not guilty and claimed to be tried.
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5. The prosecution to prove accusation leveled against accused relied on the evidence of PWs.1 to 12 and documents at Ex.Ps.1 to 8, so also got identified M.O.1 and 2. On closure of prosecution evidence, statement of accused under Section 313 of Cr.P.C. was recorded. Accused have denied all incriminating material evidence appearing against them and claimed false case is filed. The trial Court after having heard arguments of both sides and on appreciation of evidence on record convicted the accused for the aforesaid offences and imposed sentence as per order of sentence.
6. Revision petitioners-accused have challenged the said judgment of conviction and order of sentence before First Appellate Court in Crl.A.No.37/2008. The First Appellate Court by judgment dated 10.07.2015 has dismissed the appeal and confirmed judgment of conviction and order of sentence.
7. Revision petitioners feeling aggrieved by concurrent finding of both courts below have preferred this Revision Petition contenting that both courts below have not properly appreciated the evidence on record. The evidence of PWs. 4 to 8 cannot be relied, since they are interested witnesses and no any independent witnesses have been examined. There is dispute -5- CRL.RP No. 100197 of 2015 between accused and complainant and as a result, complainant has filed false complaint against accused. The evidence of PW.9 with reference to wound certificates-Exs.P.4 to 6 stand contrary to oral evidence of PWs.5, 7 and 8 respectively. Approach and appreciation of evidence by both the courts below are contrary to law and evidence on record. Therefore, prayed for allowing Revision Petition and to set aside judgments of both the courts below. Consequently to acquit accused from charges leveled against them.
8. Learned HCGP on notice, has appeared for respondent- State.
9. Heard the arguments of both sides.
10. On careful perusal of oral and documentary evidence placed on record by the prosecution, it would go to show that incident in question has taken place on 1.6.2004 at 8.30 a.m. in Purakondikoppa village wherein all the accused formed themselves into unlawful assembly being armed with deadly weapons, picked up quarrel with complainant and CWs.6 to 9, further by means of whip and Shovel stalk and by hand assaulted them thereby caused injuries to CWs.6 to 9. It is further the case of prosecution that all the accused have abused -6- CRL.RP No. 100197 of 2015 complainant and CWs.6 to 9 in filthy language, so as to insult them and such insult may likely to cause them to break public peace or to commit any other offence. The prosecution mainly relied on the oral evidence of PWs. 4 to 9 and wound certificate of PWs.5, 7 and 8 as per Exs.P.4, 5 and 6 respectively.
11. PW.4 is brother of complainant and he has deposed to the effect that while complainant and his father were harvesting crop in their land, all the accused committed criminal trespass. Accused No.1 by means of Shovel stalk assaulted on right shoulder, accused No.2 kicked on him over his ribs, accused No.3 by hand assaulted over his right ear, accused No.4 fisted on his right side chest, so also accused No.5 assaulted complainant by means of hands. PW.5 is father of complainant and he deposed to the effect that accused on entering land started assaulting his son. When he questioned as to why they are assaulting is son, accused No.1 by means of Shovel stalk assaulted on left shoulder. PW.6 daughter of PW.5 deposed to the effect that accused No.1 by means of Shovel stalk assaulted on the left shoulder due to which he suffered fracture injuries. All the accused by means of club assaulted on her and her sister Renuka. Accused Nos. 1 and 2 have pulled Renuka due to which she sustained injuries. PW.7 is complainant, who filed complaint -7- CRL.RP No. 100197 of 2015 as per Ex.P.3 spoken about all the accused actively participated in assaulting him and CWs.6 to 9 by means of weapons in their possession and also by hands. PW.7 further deposed to the effect that his father has suffered fracture injuries due to assault by means of Shovel stalk on his left shoulder. PW.8 is another daughter of PW.5, she has partly turned hostile to the case of prosecution, however during the course of cross examination by learned public Prosecutor, she has admitted to all the suggestion put to her as per the case of prosecution.
12. On going through the above referred oral evidence of injured eye witnesses, it would go to show that they have spoken about injuries sustained by them due to assault of accused. It is true that their evidence is not with every mathematical accuracy as alleged in the complaint with regard to inflicting of injuries by means of weapons as stated in the complaint. The minor discrepancies in their evidence regarding inflicting of injuries by means of weapons as alleged in the complaint Ex.P.3 cannot be itself valid ground to discredit their evidence in its entirety.
13. The prosecution has examined PW.9 Dr.Satish Pujar, who has examined injured PWs.5, 7 and 8 and issued wound -8- CRL.RP No. 100197 of 2015 certificates as per Exs.P.4, 5 and 6 respectively. On perusal of oral evidence of PW.9 and wound certificates, it would go to show that father of complainant PW.5-Durgappa suffered dislocation of left shoulder joint and the said injury is opinioned to be grievous in nature. The wound certificate of complainant Ex.P.5 would speak about having sustained three abrasions measuring 2x1/2 c.m. below right side chest. PW.8-Renuka suffered three abrasions as noted in the wound certificate- Ex.P.6. There is nothing worth material that has been brought on record during the cross examination of PWs.5, 7 and 8 that injuries found on them as per wound certificates at Ex.P.4 to 6 has no nexus with the incident alleged in the complaint-Ex.P.3. Looking to the time of incident and time of their examination in Primary Health Centre, Aadur of Hangal taluk, it would go to show that prosecution out of above referred evidence has established nexus between injuries suffered by PW.5, 7 and 8 in the incident that occurred in the land of complainant as found in Ex.P.4 to 6 respectively. The mere dispute between complainant and accused cannot be said as sufficient evidence to hold that all accused being falsely implicated in this case. The fact that PWs.5, 7 and 8 suffered injuries found in the wound certificates at Ex.P.4, 5 and 6 is duly supported by oral evidence of PWs.4 -9- CRL.RP No. 100197 of 2015 to 8 and the same has been corroborated by evidence of Doctor PW.9, who has examined injured witnesses PWs.5, 7 and 8 and issued wound certificates at Ex.P.4, 5 and 6 respectively.
14. The Trial Court has found all accused guilty of the offence punishable under Section 326 of IPC R/w Section 149 of IPC and convicted accused Nos.1 to 5 for the aforesaid offence. Question is as to whether offence under Section 326 of IPC is attracted or not has to be decided.
15. Oral evidence of Pws.4 to 8 would go to show that father of complainant PW.5-Durgappa has suffered grievous injury over the left shoulder. The doctor, who has examined PW.5 has deposed to the effect that there is dislocation of left shoulder joint and it is a grievous injury. The prosecution has not produced any x-ray or radiologist report to support the finding of PW.9 that injury on the left shoulder of PW.5 is grievous in nature. In the absence of any x-ray or radiologist report, it cannot be concluded that PW.5 suffered grievous injury due to assault of accused. The injury caused to PW.5 due to assault by means of Shovel stalk will attract offence under Section 324 of IPC. Therefore, both the courts below were not justified in holding that the prosecution beyond all reasonable doubt proved
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CRL.RP No. 100197 of 2015the offence under Section 326 of IPC. Looking to the above referred evidence on record and in the absence of any x-ray or radiologist report, the injury suffered by PW.5 as per wound certificate Ex.P.4 will attract only offence under Section 324 of IPC.
16. Now coming to the adequacy sentence imposed by the Trial Court, which is confirmed by the First Appellate Court that accused Nos.1 to 5 have been sentenced to imprisonment as per the order of sentence and in addition to sentence of imprisonment fine is imposed only for the offence under Section 326 of IPC. In view of reasons stated above, it has been observed and held that offence under Section 326 of IPC is not attracted and the same falls within the ambit of Section 324 of IPC. The material evidence brought on record would go to show that accused were demanding for partition of properties and PW.5 father of complainant was refusing for the same, accused are non other else than cousin brothers of complainant. Therefore, it is evident that genesis of dispute is due to property dispute and PW.5 refusing to effect partition between the family of complainant and accused. Therefore, looking to the nature of evidence brought on record, genesis of dispute and injuries found on PWs.5, 7 and 8 as per Exs.P.4 to 6, in my opinion, the
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CRL.RP No. 100197 of 2015imposition of sentence of imprisonment appears to be too harsh and needs to be interfered with. The imposition of sentence of imprisonment or fine or both is at the discretion of the Court, looking to the facts and circumstances of the case and for the above recorded reasons, in my opinion, if accused Nos. 1 to 5 are sentence to pay fine of Rs.500/- each for the offences punishable under Sections 143, 147, 148, 323, 504 of IPC and in default of payment of fine amount each to undergo simple imprisonment for 15 days. If an amount of Rs.2,000/- each for the offence punishable under Section 324 of IPC in default of payment of fine each to undergo simple imprisonment for one month would meet the ends of justice. Consequently, proceed to pass the following:
ORDER The revision petition filed by revision petitioners is hereby partly allowed.
The judgment of the First Appellate Court on the file of II Addl. District and Sessions Judge, Haveri sitting at Ranebennur in Crl.A.37/2008, dated 10.7.2015 confirming the judgment of the Trial Court in CC.No.497/20014, dated 24.5.2008 is modified as under:
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Accused Nos. 1 to 5 are sentenced to pay fine of Rs.500/- each for the offences punishable under Sections 143, 147, 148, 323, 504 of IPC and in default of payment of fine amount each to undergo simple imprisonment for 15 days.
Accused Nos. 1 to 5 are sentenced to pay fine of Rs.2,000/- each for the offence punishable under Section 324 of IPC and in default of payment of fine each to undergo simple imprisonment for one month.
Registry is directed to transmit the records of the trial court with copy of this judgment.
(Sd/-) JUDGE VB/-