Karnataka High Court
The State Of Karnataka, vs K Basappa S/O. Gundappa on 26 August, 2020
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 26TH DAY OF AUGUST 2020
BEFORE
THE HON'BLE MRS.JUSTICE M.G.UMA
CRL.APPEAL NO.2653/2012
BETWEEN:
THE STATE OF KARNATAKA,
BY POLICE SUB-INSPECTOR,
SIRIGERI P. S.,
SIRUGUPPA TALUK, BELLARY DIST.
REPRESENTED BY ADDITIONAL
STATE PUBLIC PROSECUTOR,
HIGH COURT CIRCUIT BENCH,
DHARWAD
....APPELLANT
(BY SRI. VINAYAK KULKARNI, AGA)
AND
1. K. BASAPPA S/O. GUNDAPPA
AGE: 28 YEARS, OCC: AGRICULTURIST,
R/O. ULURU VILLAGE,
BELLARY DISTRICT-583131.
2. K. MALLESHAPPA S/O. AMARAPPA
AGE: 56 YEARS, OCC: AGRICULTURIST,
R/O. ULURU VILLAGE,
BELLARY DISTRICT-583131.
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3. K. LINGAREDDY S/O. NAGAPPA
AGE: 55 YEARS, OCC: AGRICULTURIST,
R/O. ULURU VILLAGE,
BELLARY DISTRICT-583131.
4. MANGAMMA W/O. GUNDAPPA
AGE: 50 YEARS,
R/O. ULURU VILLAGE,
BELLARY DISTRICT-583131.
5. K. RAMESH S/O. LINGAREDDY
AGE: 25 YEARS, OCC: AGRICULTURIST,
R/O. ULURU VILLAGE,
BELLARY DISTRICT-583131.
6. K. RANGAPPA S/O. GUNDAPPA
AGE: 25 YEARS, OCC: AGRICULTURIST,
R/O. ULURU VILLAGE,
BELLARY DISTRICT-583131.
7. K. RAJA S/O. LINGA REDDY,
AGE: 26 YEARS, OCC: AGRICULTURIST,
R/O. ULURU VILLAGE,
BELLARY DISTRICT-583131.
8. K. MALLIKARJUNA @ MALLIKA
S/O. MALLESHAPPA, OCC: AGRICULTURIST,
R/O. ULURU VILLAGE,
BELLARY DISTRICT-583131.
9. K. BHARAMA REDDY S/O. AMARAPPA
AGE:35 YEARS, OCC: AGRICULTURIST,
R/O. ULURU VILLAGE,
BELLARY DISTRICT-583131.
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10. K. RANGA REDDY S/O. RAJASEKHARA
AGE:23 YEARS, OCC: AGRICULTURIST,
R/O. ULURU VILLAGE,
BELLARY DISTRICT-583131.
11. MALLAMMA W/O. GANGAPPA
R/O. ULURU VILLAGE,
BELLARY DISTRICT-583131.
12. LAKSHMAMMA W/O. LINGA REDDY
AGE: 45 YEARS,
R/O. ULURU VILLAGE,
BELLARY DISTRICT-583131.
(Accused No.5-K.Prakash expired before the trial
Court and hence not made a party)
... RESPONDENTS
(BY SRI ASHOK I. BADIGER, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED U/SEC.
377(1)(b) OF CR.P.C. FOR ENHANCEMENT SEEKING
TO ALLOW THIS CRIMINAL APPEAL AND MODIFY THE
SENTENCE IMPOSED BY THE ADDL. SESSIONS
JUDGE, BELLARY IN S.C.NO.25/2007 DATED
29.10.2011 AND IMPOSE THE SENTENCE PRESCRIBED
FOR THE OFFENCE P/U/SEC. 326 OF IPC.
THIS APPEAL COMING ON FOR HEARING
THIS DAY, THE COURT PASSED THE FOLLOWING :
JUDGMENT
The appellant-State has preferred this appeal aggrieved by the quantum of sentence imposed on 4 respondents/accused Nos.1 to 12 while convicting them for the offences punishable under Sections 143, 147, 148, 504 and 323 read with Section 149 of IPC and convicting them to pay fine of Rs.250/- each for the offences punishable under Sections 143, 147, 148 read with Section 149 of IPC and in default to pay fine, to undergo simple imprisonment for 15 days, to pay fine of Rs.100/- each for the offence punishable under Section 323 read with Section 149 of IPC and in default to pay fine, to undergo simple imprisonment for 15 days, to pay fine of Rs.250/- each for the offence punishable under Section 324 read with Section 149 of IPC and in default to pay fine, to undergo simple imprisonment for 1 month, to pay fine of Rs.100/- each for the offence punishable under Section 504 read with Section 149 of IPC and in default to pay fine, to undergo simple imprisonment for 7 days and sentencing the accused till raising of 5 the Court, for the offence punishable under Section 326 of IPC and to pay fine of Rs.2000/- each and in default to pay fine, to undergo simple imprisonment for 3 months.
2. Heard the learned AGA Sri. Vinayak Kulkarni for the appellant-State and the learned counsel Sri.Ashok I. Badiger for respondents/accused through video conference.
3. It is the contention of the prosecution before the trial Court that accused Nos.1 to 13 have formed unlawful assembly with deadly weapons i.e. iron rods, stones, clubs, with a common object of committing the offence, assaulted the complainant and 5 others, causing injuries on 17.04.2005 at 5.00 pm in Ulluru Village and abused them in filthy language and thereby committed the offences punishable under Sections 143, 147, 148, 504 and 323 read with Section 149 of IPC.
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4. Injured PW1 lodged the first information as per Ex.P1. On the basis of this information, the investigation was held and the charge sheet was filed against all the accused for the above said offences.
5. The Committal Court took cognizance of the matter and committed the matter to the learned Principal District and Sessions Judge, Bellary who in turn made over the matter to the trial Court to try the accused. The trial Court secured the presence of accused Nos.1 to 13. They have pleaded not guilty for the charges leveled against them. Thereafter the prosecution examined PWs.1 to 12, got marked Exs.P1 to P9 and identified M.Os.1 to 8 in support of its contention. The accused have denied all the incriminating materials available on record in their statements recorded under Section 313 of Cr.P.C. but they have not chosen to lead any evidence in support of their defence. However, they got marked Exs.D1 to 7 D11 during cross examination of the prosecution witnesses.
6. The trial Court after taking into consideration all these materials on record came to the conclusion that the prosecution is successful in proving the guilt of the accused for the above said offences beyond reasonable doubt and proceeded to convict the accused. After hearing the accused regarding the sentence, they were sentenced to pay only fine with default sentence for the offences punishable under Sections 143, 147, 148, 323, 324 and 504 read with Section 149 of IPC, whereas accused were sentenced till raising of the Court with fine of Rs.2,000/- to be paid by accused No.1 and fine of Rs.500/- each against accused Nos.2 to 4 and 6 to 13 with default sentence of 3 months, for the offence punishable under Section 326 of IPC.
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7. Aggrieved by the sufficiency of sentence imposed by the trial Court, the State has preferred this appeal.
8. The learned AGA submitted that the trial Court has not assigned any reason for showing misplaced sympathy in favour of the accused, even after holding that they have committed the offences as alleged. He also submitted that under Section 326 of IPC, the accused are liable to be sentenced with imprisonment for life or imprisonment of either description for a term, which may extend to 10 years and shall also be liable to pay fine. Under such circumstances, sentencing till raising of the Court, was not proportionate and was not just and proper. Even for other offences imposing of nominal fine without sentence, is not justifiable. Therefore, he prays allowing of the appeal by imposing maximum sentence on the accused.
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9. Per contra the learned counsel Sri.Ashok I. Badiger representing the respondents appearing through video conference submitted that the dispute was between the two neighbours over the right of pathway. The accused are not involved in other criminal cases. The accused were also sustained injuries in the incident. Under such circumstances, trial Court rightly shown leniency by imposing only the fine and sentenced the accused for the offence punishable under Section 326 of IPC till raising of the Court. There is no illegality or perversity in the order of sentence passed by the trial Court. He also submitted that the incident had taken place during April 2005. 15 years have already been lapsed and at this stage, if accused have to be sentenced with imprisonment, prejudice will be caused to them and therefore he prays for dismissal of the appeal. 10
10. I have gone through the materials placed before the Court including the trial Court records.
11. The trial Court after taking into consideration the materials on record formed an opinion that the accused have committed the above said offences by using M.Os.1 to 8. M.Os.1 to 4 are the stones, 5 to 7 are sticks and 8 is the iron rod. PW1 the complainant and PWs2 to 6 are the injured eye witnesses. PW11 is the doctor who treated these injured witnesses and wound certificates are marked as Exs.3 to 8. When such is the situation, the trial Court has not assigned any reason as to why it has shown such a leniency towards the accused. On going through the order of sentence passed by the trial Court, I do not find any reason assigned for sentencing the accused only till raising of the Court for the offence punishable under Section 326 of IPC. While other offences alleged are punishable either 11 with imprisonment or with fine or with both, the offence under Section 326 of IPC is punishable with imprisonment and with fine. Therefore unless there is any compelling reason, leniency could not have been shown to the accused by imposing the sentence till raising of the Court for the offence punishable under Section 326 of IPC.
12. The contention of the learned AGA regarding sufficiency of sentence passed against the accused for the offence punishable under Section 326 of IPC is required to be considered favourably. Therefore I am of the opinion that the accused shall be sentenced to undergo imprisonment for a period of 30 days. The order of sentence imposed on the accused Nos.1 to 13 for other offences and also the fine ordered to be paid by them for the offence punishable under Section 326 of IPC, is to be maintained.
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13. Admittedly accused have not challenged the impugned judgment of conviction and order of sentence passed by the trial Court. The learned counsel for the respondents has relied on the decision in Srikantegowda Vs. Chandra Murthy and ors. in Crl.A.No.701/2012 dated 28.05.2018 and in State of Karnataka Vs. Umesha S/o.Hoovannagowda in Crl.A. No.171/2013 dated 24.05.2018 in support of his contention. Both these decisions were rendered by this Court in the appeal against acquittal, which was confirmed by the Court. Therefore, they are not applicable to the facts of the case.
14. In view of the discussions held above, I proceed to pass the following:
ORDER The appeal is allowed in part. Appellants/accused Nos.1 to 4 and 6 to 13 are sentenced to undergo simple imprisonment for a 13 period of 30 days for the offence punishable under Section 326 of IPC. The fine amount imposed for the offence is maintained.
The prayer for enhancing the sentence imposed on accused Nos.1 to 4 and 6 to 13 for the offences punishable under Sections 143, 147, 148, 323, 324 and 504 read with Section 149 of IPC, is rejected.
Fine amount with default sentence imposed by the trial Court for the said offences is confirmed.
In view of the above, the order of sentence passed by the trial Court is modified.
Send back the trial Court records with a copy of the judgment.
The trial Court is directed to secure the presence of accused Nos.1 to 4 and 6 to 13, to serve the sentence.
SD/-
JUDGE KGK