Karnataka High Court
Yamanappa S/O Bailappa Kudagi vs The State Of Karnataka on 29 November, 2022
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CRL.RP No.100255 of 2015
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 29TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL REVISION PETITION NO.100255 OF 2015
BETWEEN:
1. YAMANAPPA S/O BAILAPPA KUDAGI,
AGE : 42 YEARS, OCC: AGRICULTURE.
2. ASHOK S/O BAILAPPA KUDAGI,
AGE : 40 YEARS, OCC: AGRICULTURE,
BOTH R/O TEGGI, TQ: BILAGI,
DIST: BAGALKOT.
...PETITIONERS
(BY SRI N.L.BATAKURKI, ADV.)
AND:
THE STATE OF KARNATAKA,
BY ITS PSI BILAGI PS,
REP. BY SPP HIGH COURT BUILDING,
DHARWAD.
...RESPONDENT
(BY SRI V.M.BANAKAR, ADDL. S.P.P.
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397(1) READ WITH SECITON 401 OF CR.P.C., SEEKING TO
SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED
06.10.2015 PASSED BY THE II ADDITIONAL DISTRICT AND
SESSIONS JUDGE, BAGALKOT IN CRIMINAL APPEAL NO.1/2011 AND
Digitally signed
by ROHAN ALSO SET ASIDE THE JUDGMENT PASSED BY THE JMFC, BILAGI IN
ROHAN HADIMANI T
HADIMANI Date: C.C.NO.321/2007 DATED 24.12.2010 SENTENCING THE
T 2022.12.16
11:39:03
+0530
PETITIONERS FOR THE OFFENCE PUNISHABLE UNDER SECTION 353
OF IPC PETITIONERS SHALL UNDER GO SIMPLE IMPRISONMENT FOR
A PERIOD OF 6 MONTHS, FOR THE OFFENCE PUNISHABLE UNDER
SECTION 323 OF IPC SENTENCED TO PAY FINE OF RS.1,000/- EACH
IN DEFAULT OF PAYMENT OF FINE PETITIONERS SHALL UNDERGO
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CRL.RP No.100255 of 2015
SIMPLE IMPRISONMENT FOR A PERIOD OF 2 MONTHS AND IT IS
MOST HUMBLY PRAYED TO ACQUIT THE PETITIONER FOR THE
ALLEGED OFFENCES IN THE INTEREST OF JUSTICE AND EQUITY.
THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 07.11.2022 COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
1. Revision petitioner Nos.1 & 2, who are accused Nos.2 and 3 in C.C.No.321/2007 have preferred this criminal revision petition under Section 397(1) read with Section 401 of Cr.P.C., seeking to set aside the judgment and order of conviction dated dated 24.12.2010 passed in C.C.No.321/2007 by the JMFC, Bilagi sentencing the petitioners for the commission of offence punishable under Section 353 of IPC and to undergo simple imprisonment for a period of 6 months and also convicted the accused under Section 323 of IPC and sentenced to pay fine of Rs.1,000/- each in default of payment of fine shall undergo simple imprisonment for a period of 2 months and and set aside the judgment and order dated 06.10.2015 -3- CRL.RP No.100255 of 2015 passed in Crl.A.No.1/2011 by the II Additional District and Sessions Judge, Bagalkot.
2. Parties are referred to as per their ranks before the trial court for the sake of convenience.
3. Brief facts of the case are that on 28.03.2007 at about 4.00 p.m. in front of the residential house of accused in Teggi Village within the jurisdiction of Bilagi Police Station, when the complainant and witnesses 4, 6 & 7 were proceeding to recover the electricity charges that was due from accused No.1, all the accused with common object picked up a quarrel against witnesses 4, 6 & 7 and abused them in filthy language and assaulted them with their hands and thereby obstructed them from discharging their duties as a "public servant" and committed the offences punishable under Sections 323, 353, 504, 506 read with Section 34 of IPC.
4. After filing the charge sheet, the trial court registered the case in Crime No.321/2007. In response to -4- CRL.RP No.100255 of 2015 the summons, accused appeared before the court and have been released on bail. On hearing the parties trial court has framed charges for the alleged commission of offences. Same is read over to the accused in the language known to them and having understood the same accused have pleaded not guilty and claimed to be tried.
5. To prove the case of the prosecution, in all 10 witnesses have examined as PWs1 to 10 and 7 documents got marked as Exs.P1 to P7 and no material objects were marked on behalf of the prosecution. On closure of prosecution side evidence, statement under Section 313 of Cr.P.C. is recorded as to incriminating evidence appeared against the accused. The accused have denied the same and have not chosen to lead any defence evidence on their behalf.
6. After hearing the arguments on both the sides, learned Magistrate has convicted accused Nos.1 to 3 for the offences punishable under Section 353 of IPC and accused Nos.2 & 3 are sentenced by imposing fine of -5- CRL.RP No.100255 of 2015 Rs.1,000/- each for the offence punishable under Sections
323. Being aggrieved by the judgment of conviction and order of sentence passed by the trial court, accused Nos.1 to 3 have preferred an appeal before the II Additional District and Sessions Judge, Bagalkot, in Crl.A.No.1/2011. Said appeal was partly allowed and accused No.1 was acquitted from the alleged commission of offence punishable under Section 353 of IPC and appeal filed on behalf of accused Nos.2 and 3 was dismissed. Being aggrieved by the judgment passed by the II Additional District and Sessions Judge, Bagalkot, dated 06.10.2015 accused Nos.2 and 3 have preferred this criminal revision petition.
7. Learned counsel for the revision petitioners has submitted his arguments that as per complaint - Ex.P-1, Jayandar son of Bailappa Kudagi, who is accused No.1 has caught hold the uniform of the complainant and torn his uniform and baniyan and squeezed the left side of the neck and front side of elbow. The younger brother of -6- CRL.RP No.100255 of 2015 Accused No.1 has assaulted the complainant with footwear and another younger brother of accused No.1 assaulted the complainant on his hands and also threatened them that they will kill him. Further he has submitted that in paragraph No.14 of the judgment the appellate court has clearly observed that PW5 and PW7 have clearly admitted in their evidence that accused No.1 has not assaulted to the complainant. On the basis of the admissions of PW5 to PW7 who are said to be eyewitnesses the appellate court has acquitted accused No.1. When the prosecution has failed to prove the guilty of the prime accused for the alleged commission of offences punishable under Section 353 and 323 of IPC, the question of convicting accused Nos.2 and 3 does not arise. However, the appellate court as well as the trial court have not properly appreciated the evidence on record and convicted accused Nos.2 and 3, which is not sustainable in law. The witnesses examined by the prosecution are all the public servants working in HESCOM and same is not corroborated by the independent -7- CRL.RP No.100255 of 2015 witnesses. Further he has submitted that after the incident accused No.1 has lodged a complaint against PW3 in Crime No.39/2007 in the same police station. But in that case, police have submitted 'B' report and same was challenged by accused No.1, but the trial court has accepted the 'B' report. PW3 and other witnesses have assaulted accused No.1 and that in order to escape from the said crime they have foisted a false case against accused Nos.1 to 3. On all these grounds he sought for allowing the revision petition.
8. As against this, learned Addl. SPP has submitted his arguments that the appellate court has properly appreciated the evidence on record and passed the impugned judgment and that there are no grounds to interfere with the order of appellate court and sought for dismissal of the revision petition.
9. I have perused evidence, impugned judgments passed by the Courts below and also heard submissions of learned counsel for the both the parties. -8- CRL.RP No.100255 of 2015
10. A perusal of the complaint Ex.P.3, which is genesis of the prosecution case reveals that accused No.1 Jayandhar Bailappa Kudagi has caught hold of the uniform of the complainant and torn his uniform and baniyan. Accused No.1 gave blow to him with stick towards left side of the neck and front elbow. The younger brother of accused No.1 (name not known) slapped the complainant with footwear on his left cheek and another younger brother of accused No.1 has made him to fallen down and assaulted him with hands on his left cheek and near neck. Further it is stated that younger brothers of accused No.1 also assaulted Parashuram Dharanakar with their hands. On the basis of the complaint Ex.P.3, the Police have registered a case in Crime No.38/2007 against accused Nos.1 and 2 and others for the commission of offence punishable under Sections 353, 307, 504, 506 read with Section 34 of IPC.
11. Ramanagounda son of Sanganagouda Patil who is PW.3 has clearly admitted that, when he was visited to -9- CRL.RP No.100255 of 2015 the house of accused No.1, complete right leg of accused No.1 was covered with cement plaster and he was not in a position to move. He has also admitted that on 28.03.2007, accused No.1 has lodged a complaint against him and Parashumram Dharanakar to the Bilgi Police Station and the Bilgi Police have submitted a 'B' report in that case. PW.3 has not stated as to when he came to know the name of accused Nos.2 & 3. But Investigating Officer-PW.10-R.S.Patil has deposed in his evidence that on 29.03.2007 he has recorded the supplementary statement of the complainant. A perusal of supplementary statement dated 29.03.2007, it reveals that the complainant has enquired as to the other two accused, then he came to know about the name of accused No.2 is Yamanappa son of Bailappa Kudagi and Accused No.3 is Ashoka Bailappa Kudagi through Vijayanand Pattar, the Section Officer of HESCOM. The said Vijayananda Pattar examined before this Court as PW.4. He has not whispered anything in his evidence that he has informed the name of
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CRL.RP No.100255 of 2015 accused Nos.2 & 3 to PW.3-complainant-Ramanagouda Sanganagouda Patil.
12. Ex.P.3-complaint reveals that the Section Officer PW.4-Vijayananda Pattar has told the accused to remit an amount of Rs.1,290/- as to the theft of electricity. Though the Section Officer Vijayananda Pattar was present at the time of incident who has acquainted with the names of the accused at the time of filing the complaint, the complainant or Vijayananda Pattar have not disclosed the names of accused Nos.2 & 3.
13. Ex.P.5, the wound certificate of the complainant-Ramanagaouda Sanganagouda Patil reveals that this complainant was sent with the Assistant Executive Engineer, K.E.B., Bilgi and P.C.No.1133 to the Hospital on 28.3.2007 with history of assault at 4.00 p.m. on 28.03.2007. This injured was examined by the medical officer on 28.03.2007 at 7.35 p.m.
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CRL.RP No.100255 of 2015
14. FIR-Ex.P.4 reveals the time of occurrence of the incident on 28.03.2007 at 18.00 hours. The medical officer Dr.Jayashree Emmi, who is examined PW.3 injured cum complainant examined as PW.9. She has deposed in her evidence that on 28.03.2007, while she was on duty, she examined Rudragouda Sanganagouda Patil and issued wound certificate as per Ex.P.5. In Ex.P.5 also PW.9 has not whispered anything against the accused. Even in the wound certificate Ex.P.5, the names of the accused are not mentioned. It is the case of the prosecution that the alleged incident took place on 28.03.2007 at 6.15 p.m. accordingly charges also framed by the Trial Court. But PW.3 went to the Hospital with history of assault at 4.00 p.m. on 28.03.2007. Therefore, contents of the wound certificate and evidence of PW.9 will falsify the evidence of PW.3. The Investigating Officer has not explained anything as to the discrepancies with regard to the time of alleged incident and time mentioned in the wound certificate- Ex.P.5.
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CRL.RP No.100255 of 2015
15. PW.3 has deposed in his evidence that accused Nos.2 & 3 have also assaulted to Parashuram who came to separate the galata. The said Parashuram examined as PW.6 has not deposed in his evidence anything as to the assault made by accused Nos.2 & 3. The Charge sheet filed by the Investigating Officer reveals that accused Nos.2 & 3 are shown in absconding column. Only on the basis of supplementary statement recorded by the Investigating Officer, the Investigating Officer has implicated accused Nos.2 & 3 in the charge sheet alleging that they have committed the alleged offences along with accused No.1. None of the prosecution witnesses who have supported to the case of the prosecution, have not deposed before the Court that they have furnished the name and address of accused Nos.2 & 3 to the Investigating Officer. Investigating Officer has failed to explain before the Court, how he has implicated accused Nos.2 & 3 in the charge sheet for the alleged commission of offences.
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CRL.RP No.100255 of 2015
16. The Appellate Court has acquitted the prime accused Nos.1 by assigning proper reasons in the impugned judgment. The same is not challenged by the complainant or by the State. Though the Appellate Court has acquitted accused No.1 for the alleged commission of offences. The Appellate Court has confirmed the judgment of trial court against accused Nos.2 & 3. The Courts below have not observed as to how the Investigating Officer has inserted the names of accused Nos.2 & 3 in the charge sheet.
17. On re-appreciation of entire evidence of the prosecution witnesses, I do not find any cogent, corroborative, clinching, believable and trustworthy evidence before the Court to convict accused Nos.2 & 3 for the alleged commission of offences.
18. Admittedly, accused Nos.1 has lodged a complaint against PW.1 and others and case is also registered against Ramanagouda Sanganagouda Patil and Parashurama Shivappa Dharanayak in C.C.No.405/2009.
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CRL.RP No.100255 of 2015 The copy of the depositions of Accused No.1-Jayendra Bailappa Kudagi, Parsappa Bhimappa Darigond, Somappa Yallappa Karadigudda, Erappa Krishnaji Bhoosannavar and the copy of the judgment in C.C.No.405/2009 are produced.
19. The Trial Court has acquitted the accused Ramanagouda Sanganagouda Patil and Parashuram Shivappa Dharnayak who are examined before the Court as PW.3 and PW.6. Taking revenge against accused Nos.1 to 3, PW.3 would have initiated the present proceedings against them.
20. Viewed from any angle, I do not find any materials to confirm the judgment passed by the Appellate Court against accused Nos.2 & 3 and also confirmed the impugned judgment passed by the Trial Court. Accordingly, I proceed to pass the following.
ORDER The criminal revision petition filed by accused Nos.2 & 3 is hereby allowed.
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CRL.RP No.100255 of 2015 The judgment of conviction and order on sentence passed against accused Nos.2 & 3 in C.C.No.321/2007 on the file of JMFC, Bilagi is hereby set aside.
The judgment and order dated 24.12.2010 passed by the II Additional District Judge, Bagalakote in Crl.A.No.1/2011 dated 06.10.2015 in respect of accused Nos.2 & 3 are concerned is hereby set aside.
Accused Nos.2 & 3 are acquitted from the alleged commission of offence punishable under Sections 353 and 323 of IPC.
The fine amount remitted by accused Nos.2 & 3, if any, shall be returned to them with proper identification.
Registry is directed to send back the records along with copy of this order.
Sd/-
JUDGE EM List No.: 1 Sl No.: 11