Karnataka High Court
Shivamallappa S/O Shivappa vs The State Of Karnataka on 2 April, 2012
Author: Jawad Rahim
Bench: Jawad Rahim
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 02 DAY OF APRIL, 2012
BEFORE
THE HON'BLE MR. JUSTICE JAWAD RAHIM
CRL.A. No. 852 OF 2009
BETWEEN:
1. SHIVAMALLAPPA, Sb SHIVAPPA,
AGED ABOUT 49 YEARS
2. NAGAPPA, Sb SHIVAPPA,
AGED ABOUT 39 YEARS,
BOTH ARE RESIDENTS OF KUNDAKERE
VILLAGE, NOW RESIDING AT FARM HOUSE,
HEGGAVADI VILIAGE,GUNDLUPET TALUK
APPELLANTS
(BY SRI PAVANA CHANDRA SHin Ii', ADV.,)
AND:
THE STATE OF KARNATAKA,
ThROUGH ThERAKANAMBI POLICE
...RESPONDENT
(BY SRI RAJA SUBRAMANYA BHAT HCGP)
,
THIS APPEAL IS FILED U/S.374(2) OF CR.P.C
PRAYING TO SET ASIDE THE ORDER DT. 01.10.2009
PASSED BY ThE DISTRICT AND SESSIONS JUDGE AT
CHAMARAJANAGAR IN S.C.NO.57/08 CONICTING THE
APPELlANTS/ACCUSED FOR ThE OFFENCE P/U/S 333 R/W
SEC.34 OF IPC AND SENTENCING THEM TO UNDERGO
SIMPLE IMPRISONMENT FOR A PERIOD OF THREE MONTHS
AND TO PAY A FINE OF RS.2,000-00 EACH, IN DEFAULT, TO
w
2
UNDERGO SIMPLE IMPRISONMENT FOR A PERIOD OF ONE
MONTH P/UNDER SECTION 333 R/W SEC 34 OF IPC.
ThIS APPEAL COMING ON FOR HEARING THIS DAY
THIS COURT MADE ThE FOLLOWING:
JUDGEMENT
Convicted accused are in appeal against their conviction for the offence punishable under Section 333 of IPC.
2. Heard the learned counsel Mr. A.H.Bhagwan for appellants and learned Government Pleader Sri Raja Subramanya Bhat for respondent -- state.
3. The prosecution case as manifest from the case papers is:
On the basis of the report submitted by PW1- K.C.Nagaraju appellants were arrested and put to trlai for the offence punishable under Section 333 of IPC. The appeiiants -- accused pieaded not guilty necessitating trial in which prosecution examined 11 witnesses and relied on 19 documents and two materlai objects. The appellants -- 3 accused resisted the action. However, the learned trial Judge found the evidence of PW1 to 3 inculpates the accused for the offence punishable under Section 333 of IPC and convIcted them. Assailing it they are before this court.
4. The prosecution case Is on 07.06.2006 appellants boarded KSRTC passenger bus bearing registration No.KA-09 F-2826 to go to Heggavadi. PW1- K.C.Nagaraju, the Conductor asked them to purchase tickets. They paid Rs.12/- against Rs.19/-, which is right fare. When PW1-K.C.Nagaraju asked them to pay Rs.19/- appellant No.2-Nagappa refused and insisted he will pay only Rs.12/-, which lead to altercation, in which appellants turned violent, they assaulted him with torch causing Injuries to the face, dislodging his teeth. The bus was taken to Gunduipet Hospital, where PW1 secured treatment and then they reported the matter to the Police.
5. Accused were arrested and put to trial. In the evidence PW1-K.C.Nagaraju has stated that while he was on route run accused No.2 boarded the bus at Gunduipet, paid 4 Rs.12/- to purchase ticket. Thereafter accused No.1 boarded the bus at Kundakere and he also paid only Rs.12/- as against R.s.19/-, the correct fare. When PW1- K.C.Nagaraju asked him to pay Rs.19/- he held shirt collar and accusad No.1 assaulted him with torch on the head and mouth causing injuries. He lost one tooth.
6. The said statement is sought to be corroborated from the statement of the driver. He was examined as PW2-Nanjundaswamy and also former conductor PW3- Siddanalk, but PW2-Nanjundaswamy did not support the case that there was galata In the bus or regarding genesis of the quarrel and role played by the accused. The evidence of PW3-Siddanaik reveals he was proceedings to Therakanambi and he was one of the passengers in the bus. His evidence does not inculpate the accused regarding the quarrel and consequent Injuries. He has shown adverse animus to prosecution and denies the accused indulged In the acts of preventing the PW1-K.C.Nagaraju from discharging his official duty.
5
7. No doubt, the prosecution has examined Medical Officer, to prove Complainant had suffered injuries, but, if we look into the nature of evidence the categorical statement made by the Complainant is that when he asked Rs.19/- the accused declined and they were infuriated and dragged him. As against this the explanation of the accused in the cross-examination is that they questioned the conductor for coiiecting Rs.19/- Instead of Rs.12/-. There is no direct evidence from both sides. State has not produced any document to show that bus fare was Rs.19/-. Similarly, the accused have not shown that they were required to pay only Rs.12/-. More over, au that evidence proves the incident in the bus on 07.10.2006 and in the incident PW1- K.C.Nagaraju suffered injuries.
8. But the question is whether charge under Section 333 of IPC is supported by the evidence. The provisions of Section 333 of IPC is very dear that 'whoever voluntarily causes grievous hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other 6 public servant from discharging his duty as such public servant, or consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant'. Therefore, the ingredients of Section 333 of IPC require proof that Complainant -- victim was discharging official function. Thus, prosecution had to prove the accused indulged in causing voluntary hurt to public servant to deter him from performing such official duty.
9. In the Instant case, no where In the complaint or statement of PWX-K.C.Nagaraju, it is averred that he was prevented from discharging his official duties. Merely because the accused have not paid the amount asked for and merely because they assaulted, that will not come within the mischief of Section 333 of IPC.
10. The Ingredients of Section 333 of IPC requires proof that accused had with an intention to deter a public servant from performing offidal duty indulged in act of violence. But the facts in this case is accused declined to pay Rs.191- and offered only Rs.12/-. From such statement P 7 it is not possible to conclude that accused have prevented PW1-K.C.Nagaraju from discharging his official duties.
11. BesIdes, the alleged overt acts attributed to the accused does not indicate that the accused had preplanned the attack or had deliberate animus to prevent him from discharge of official duties. However, there Is no reason to disbelieve the statement of PW1-K.C.Nagaraju that he had suffered Injuries due to the overt acts of the accused by hitting him with torch. While the evidence may show PW1- K.C.Nagaraju suffered injuries as a consequence of assault by the accused It does not establish the charge for the offence punishable under Section 333 of IPC.
12. Therefore, the nature of offence has to be decided based on nature of injuries caused. The Complainant claims to have lost one tooth due to the overt acts of the accused. The trial Court has imposed sentence of three months simple imprisonment with fine of Rs.2,000/- each. As the finding of the trial Court for the offence punishabie under Section 333 of IPC is not tenabie the same 8 is set aside. However, considering the overt acts of the accused, which is proved by legal evidence, they have to be visited with reasonable punishment for offence under Section 324 of IPC. The trial Court has sentenced them to three months simple Imprisonment with fine of Rs.2,000/- each.
13. Taking Into consideration the submission of the learned counsel for appellants, I feel sentence of simple Imprisonment for a period of three months Is not sustainable in this case, rather they could be imposed fine. The trial Court Imposed fine of Rs.2,000/- each, which could be enhanced to Rs.6,000/- each.
14. In the result the appeal is allowed In part. The conviction of the appellants for the offence punishable under Section 333 of IPC is set aside. The overt acts of the accused and the crime committed is brought within the mischief of Section 324 of IPC. The injuries caused did not endanger life of the victim and taking Into consideration all other attending circumstances the sentence of imprisonment 9 is dispensed with, instead, the appellants are sentenced to pay fine of Rs.6,000/- each with default sentence of two months to be deposited before the trial Court within two weeks. The amount on being deposited shall be paid over to PW1-K.C.Nagaraju as compensation. The bail bonds executed by the appellants are cancelled.
sd/a JUDGE VK