Karnataka High Court
Ningappa vs The State Of Karnataka on 21 July, 2010
Author: Huluvadi G.Ramesh
Bench: Huluvadi G.Ramesh
- _ TH._E'STATE_ OF IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD D DATED THIS THE 215? DAY OF JULY;"':2'O«A1'_0-'«..i r.- A' BEFORE THE HON'BLE MR. JUSTICE.1-IULUVADiQGC..--VI, CRIMINALAPPEAL BETWEEN: D D A NINGAPPA S /0. YALLAPPA KALABAR, MAJOR, - -- OCC. AGRICULTURE, V . R/O. KHANAGAON, - TAL. DIST. 13ELGAUM_5j_§--.V_ ~ V ' 4 APPELLANT (BY SRLMAND 'NA1x,tALcf;;i;xaATH, AMICUS CURIAE) AND: V' D A S ... RESPONDENT
KULKARNI, H.C.G.P.} A V THIS 3CF{;IMINMJ APPEAL IS FILED U/S. 374(2) CR.P.C. AGAINST THE ORDER DATED 24/02/2004 PASSED BY THE FAST TRACK COURT I AND ADDL. S.J., VLDBELGAUM IN S.C. NO. 135/2001 CONVICTING THE * _ x_"APPE»LLANT-ACCUSED FOR THE OFFENCE U/S. 436 AND 'A429-SOP' I.P.C. AND SENTENCING HIM TO UNDERGO RI. 3*"
FOR 6 YEARS AND TO PAY FINE OF Rs. 10,000/-- TO UNDERGO S.i. FOR 3 MONTHS FOR THE""OEiA'Eg1R-.:E'~. U/SEC. 436 OF I.P.C. AND FURTHER SENTENC.ING.HIMiTC;a ' .' UNDERGO R.i. FOR THREE YEARS AND TO ..PAY»A FINE or .. D RS.5,000/~ AND 1.1)., T0 UNDERGO"'S.I.g F=-';)R_oN.r; MONTH FOR THE OFFENCE U/s.. 4291? OF..VI:I:'PI'{'--'/I.' _B0'FI.d'~._i_TIq{E' SENTENCES TO RUN CONCURREN*TLY., "
THIS CRIMINAL APpEAL,:'oOM1NO._ONV ROR..;HEAR1NG * A i' THIS DAY, THE COURT MADE 11:13: FOLLOWING: ' This appeai is challenging the order of and i by the Add].
Sessions JuVdge_fl£_Fas't Couri:;I}"; Belgaum in Sessions Case 135/V/appellant is convicted and sentencedwtoii undergo imprisonment for six years an;3._;f§o" pay a finegiovf Rs:.l0,000/-- and in default, to undergo :Asi:1jiple_b"imprisonment for three months, for the offence Section 436 of I.P.C. The accused-
appellaiiti issentenced to undergo rigorous imprisonment for a pe1*iod'of three years and to pay a fine of Rs.5,000/-- and in ' "default to undergo simple imprisonment for a period of one ~-rraonth for the offence punishable under Section 429 of I.P.C. V
2. The case of the prosecution is that P.W.3, who is the complainant, has lodged complaint against accused regarding setting fire to their cattle shed. According complainant, the accused being the brother--in-fliaw.igeigll : "
sister's husband, for having refused to belonging to him, has set fire to:"»the'_'_A c:;tt1é~_5'rie'd causing damages to the tnneof-..Rs.30' to as " it death of cattle, sheep and othenanimals hhastalgen place. The shed was made outliillof husk. It is alleged that, on 1'?/04/I at Kanagaon village,:':withinVvVC};:»l~:al{'Rural~po'lice station limits, the accused has comrnitpted setting fire to the cattle shed belorjlginglto and 4, which was used for storing the to«rear the cattle.
_ Eh}? 'basis of the complaint filed by complainant, police haVe'i__ conducted investigation and arrested the "._Vpaccuse~dr'*;_and also recorded the statement of several A v~?f'w:itne~sses, drawn panchanama and filed chargesheet for the \§<,/ above said offences. On committal, the learned Judge, Fast Track Court, Belgaum has against the accused for the offences. A urider Sections 436 and 429 of 1.p.c. accused"-dfid.lpnotpleadipp guilty and claimed to be tried: _prosec.utio_n1 has._eXari*iined V in all, 10 witnesses and gotl.-mfélrkedpg 14.' documfents and M.Os. No. 1 to 3 in the police statement of after' the above order of passed against which,V___this accused on Various grounds. ._ * It isthe learned counsel Sri. Anand .'"--.Na'valgin1.ath._appearing for the accused as amicus curiae ._.that,' has been falsely implicated in this case. In murdtirllltrial wherein P.W.4 was involved and the V'-.,appellan_t1~was attending the Court and was giving evidence, ""with""that motive and ire, the complainant i.e., l3.W.3 and 4 have joined together and falsely implicated the appellant in V this case. There are no eye--witnesses to the incident;. 'P,._W.v3 and 4 themselves say that they are the ~ incident and, although there are neighbouris"adjac-enta totize scene of incident but, none of them;"h.ave'»supported._the version of prosecution. The"the_ory ofv.rnotiVe'V:ldAev'e1QVped the prosecution to implicate th_e:l:accu--sed not a strong motive for the commission' of the Version of the interested._testimony, have turned hostile to the All the witnesses have admitted falsely implicated the appellant with regard to murder triai. Accordingly'? there is no cogent evidence on V» record to that the accused has committed the of.fence.s,: without considering the same, the Sessions Coiirt the accused guilty of the offence and accordingiylsought for acquittal.
it = 5. The learned Government Pleader has submitted that f~}".Ws.3 and 4 are the persons who have resisted to cultivate V the land of accused and, as they have expres«scd inability with an ire, the accused has set fire shed and there is a cogent evidence on recorldwtu holdtiiell' accused guilty of the offences. Ac'eord_ing:ly;ll'he' appeal
6. In the light ofthe. advanced, the points that would arisefor co:11sidetation"i.isl- l
1. the Co_u;5t ujusltlfied in holding the "oft offences punishable V dddd "i'unzi¢>;~ ¢;iid"4'29 of I.P.C.? ._jfhev4'4'"prlosecution has proved beyond r4ea,svoriobleVA'dou--h"t' that the accused is guilty of the 'Said. offences and which offences have loHeen~--c-ommitted by the accused? What_order?
Q r :P.W.4 Basavanneppa Tigadi is the resident of it Khanvagfiaon and P.W.3 Sattevva is his wife. It is also relevant 'lotto-e'note that accused is the 'orother--in--1aw of P.W.3 i.e.. sister's husband. Accused is a military man and after it"
retiring from military service, he had come to the.yi1i,age,,' purchased Iand and he was cultivating the time, accused had requested P.W,3""a11d 4',to_..cuitivatef'hiVsg land, but P.Ws.3 and 4 have refusedtoficultixrate the accused as they were the 1and.pi'.Qt}1:er's"'iri the it village. As such the relationshjpheftxveen accused P.W.3 and 4 has become strairieti, - it it V t
8. It coVn:pi.aia£t"V'by p.w.3 that on 17/O4/ A' herself and her husband "accused came and set fire to their cattA1e--,:sI1e_d_"'« P.W.3, they have seen the accused ustI'ikirig._t_,tVthe inatch stick and setting fire to the dcattie internally. The roof of the cattle shed was made and in the shed, they have tied the cattle 'also stored some utensils. In the fire mishap, they have lost' cattle Worth Rs.30 to 40 thousand and also some . dbags containing food articles and later, the villagers and tire fighters came and extinguished the fire before sunrise. W"
Thereafter, P.Ws.3 and 4 went to Gokak police stationcanvd filed a complaint. P.W.3, in her cross»exam.--inatio'n1',"~ . clearly admitted that her husband ?.w.4'waéfi the murder case of Fakirappa Muchi arrdiiiher.husbanid-.__Was' under trial prisoner for lessllthan txivo lyearsV'v:aiid...sVhe_.l3also,i* used to go to the Court lshelvvihas aiso admitted that there other persons adjacent to the scene of to her admission, . incident, accused had aslre'dll:tolllcu1tivate his land and except--,_ lAiliS»"1io"'v.ca1ise for the strained relation betweenthem. clearly admitted that no quarrel has .tal;en' place "t3e_ti5veenV' them and the accused himself is land. It is also admitted that the Solhapur A vrill..j_)ass.*through their village to reach Bijapur. evidence of P.W.¢L is similar to that of P.W.3. But, 15QW.4 has deposed with regard to the fact that, he has notstated before the police that on hearing the noise he and V' "his wife came outside the house running. He has also xv"
admitted that after the fire mishap. C.Ws.'7 and the spot and let off the cattle from the V' contradiction with regard to the fact »-as '.oefore',:'thV"e., police that the accused has ran "f'ro1rn'-- th-ea incident after seeing C.W.7 and_
10. P.W.1, who conducted part of investigation. accused and conducted the of the articles.
P.W.2, whois conducted the post-
morterfi and -cattle have sustained 75% burns anidahas also certificate to that effect. _11. P;'W.5 La;§:Inappa.B. Punjar and P.W.6 Satyappa, ""~._vwhof "'are__e: the neigibourers of the compiainant, have not 's:.ip'pn;'te;i'~ ---version of prosecution and have turned hostile. who is the pancha for panchanama has not supported. the version of prosecution version. W 10
12. P.W.8, who is a pancha for the.<j"Vs:e«izd'ure panchanama, has also not supported ~ Version. P.W.9, who is the police const_ab1e_*'has" receivedpthe dd"
F.I.R. and compiaint and has suhmittedv the 'I~?;:§.I{VV:¥":;e.f'io':1;'e Magistrate. He has co11ectedv""a_ yadi from d'theV.:._Veterinary'--.tL' Doctor for having conducted posvt--mor'uedrn._ offithe goat, calf and cow.
13. azzv. another:""'po1ice official, has conducted the V On .. the evidence available on record, it is noticed that except P.W.3 and 4 none of the residing adjacent to the place of incident have .$Ud;ppAo'rtedV.iv_t11Aeu'version of prosecution. . It is the defence of the accused that nobody has dd '~_se-en the incident and he has not taken part in the said = ._ incident. Even though he has not committed the offence, he 12 the side of the houses in the village. As such, ,a possibility of someone throwing a burning matc:h:stivc1§,' V' might have accidentally caught fire~to..the interested testimony of P.Ws.3 aha "en witnesses have turned h0stileI"~...pThereV is no evidence one record to connect the apccusedppgalleged lofferilce. Even though the motive attI€b:dted-- is strong enough to implicate offence, the accused bein a would not have set firetonthe. theiicporriplainant. This being the case, itis to"..b.eli_eve-' that the accused would have made pattevrnpt: to the cattle shed of the corriplainant: " l l the circumstances, the reasoning arrived by the t;_ri'al__ the evidence of 1-3.Ws.3 and 4 that the accusec-i'i's'vguilty of the offence, appears to be improper. The conaplainant might have suffered a loss to the tune of ' '''§§s;--4Cl,0O0/-- with regard to the death of cattle and sheep. In circumstances, by extending the benefit of doubt and by 13 reversing the finding of the trial Court, the acquitted of the offence with which he is charged" V
18. In theocircumstances, ap.'};1eaE'.A_Ais':a116wéd.;'_.3hiiL_L:'b.n3fid. stands cancelled. Send backVi;h[<vé"::;:c0r{i's.V__ V The fee of amicu§~.