Karnataka High Court
Hettegowda @ Hettappa vs State By Beechanahally Police Station on 19 June, 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JUNE, 2018
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
CRIMINAL APPEAL No.477/2010
BETWEEN:
HETTEGOWDA @ HETTAPPA
AGED 42 YEARS
S/O B BOMMEGOWDA
R/AT NETTAKALHUNDI VILLAGE,
HD KOTE TALUK
MYSORE DISTRICT ..APPELLANT
(BY SRI P B RAJU, ADVOCATE)
AND:
STATE BY BEECHANAHALLY
POLICE STATION
BY PUBLIC PROSEUCUTOR ..RESPONDENT
(BY SRI NASRULLA KHAN, HCGP)
THIS CRIMINAL APPEAL IS FILED U/S.374(2) OF
CR.P.C BY THE ADVOCATE FOR THE APPELLANT PRAYING
TO SET ASIDE THE JUDGMENT DATED 18.03.2010 PASSED
IN S.C.NO.163/08 BY THE PRESIDING OFFICER, FTC-II,
AND ADDITIONAL MACT, MYSORE - CONVICTING THE
APPELLANT/ACCUSED NO.1 FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 353 AND 324 OF IPC. THE
APPELLANT/ACCUSED NO.1 SENTENCED TO UNDERGO S.I.
FOR A PERIOD OF SIX MONTHS AND SHALL ALSO PAY
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FINE OF `500/- IN DEFAULT TO PAY THE FINE AMOUNT,
HE SHALL UNDERGO S.I. FOR A PERIOD OF 15 DAYS, FOR
THE OFFENCE PUNISHABLE UNDER SECTION 353 OF IPC.
THE APPELLANT/ACCUSED NO.1 FURTHER SENTENCED TO
UNDERGO R.I. FOR ONE YEAR AND SHALL ALSO PAY FINE
OF `1,000/- IN DEFAULT SHALL UNDERGO IMPRISONMENT
FOR ONE MONTH, FOR THE OFFENCE PUNISHABLE UNDER
SECTION 324 OF IPC. BOTH THE SENTENCES SHALL RUN
CONCURRENTLY.
THE APPELLANT/ACCUSED NO.1 PRAYS THAT HE BE
ACQUITTED.
THIS CRIMINAL APPEAL COMING ON FOR
DICTATION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Appeal is directed against the Judgment passed by the learned Presiding Officer, Fast Track Court-II, Mysuru in S.C.No.163/2008 dated 18.03.2010.
2. The appellant herein was convicted for the offence punishable under Sections 353 and 324 of IPC and sentenced to undergo simple imprisonment for a period of six months for the offence punishable under Section 353 and to pay fine of `500/- in default to pay 3 fine amount to undergo simple imprisonment for 15 days and one year rigorous imprisonment for the offence punishable under Section 324 and to pay fine of `1,000/- in default to pay fine to undergo imprisonment for one month.
3. Criminal law was set into motion against the accused because of the incident dated 25.08.2007. It is stated that Mahesh Gowda was on duty at Hosur Gate Forest area. Meanwhile T.Ramesh, Rajappa, Sannappa, Doddappaji and Krishna came in a jeep. The forest guard Ramesh told them that since there is Onam festival in Kerala, Poachers may come to kill the forest animals and they have to take precaution to guard the forest and they were taken in a jeep to D.B.Kuppe and thereafter they took Lakshmikanth- guard, watcher-Ratnaiah and Basavaraju then proceeded towards Nettakalhundi village. Near water 4 tank, the jeep was stopped and all of them were watching. The complainant-Mahesh Gowda, along with Doddappaji and Basavaraju and others were armed with DBBL gun. At 12.30 all of them were on duty and saw a person (accused No.1) coming from river side. They asked him to stop, but he ran away near his house and came back along with 15 to 20 persons armed with weapons like matchu and clubs and tried to catch hold the forest officials.
4. Except the complainant, Doddappaji and Basavaraju, the others ran away and they caught hold of these three persons. They snatched the DBBL gun from the complainant-Mahesh Gowda and broke it into pieces. Accused No.1 assaulted with sickle on the head of the complainant and caused bleeding injuries and attempted to murder him. The complainant escaped and ran towards the jeep. At that time they caught hold of Doddappaji and Basavaraju and 5 accused Nos.4 to 7 assaulted them, when Doddappaji escaped from them and came near the jeep he was assaulted with the sickle on his head and left shoulder and caused injuries. Basavaraju was wrongfully confined in the house of one Chennegowda and was also assaulted.
5. The complainant, injured Doddappaji and others were taken to hospital. Complaint was given by Mahesh Gowda on 26.08.2007 at 8 A.M. and thereafter case was registered against accused Nos.1 to 7 in Crime No.78/2007 for the offence punishable under Sections 143, 144, 147, 148, 353, 332, 341 342, 427 and 307 read with Section 149 of IPC. On completion of investigation final report was submitted for the offence punishable under Sections 143, 144, 147, 148, 353, 332, 341, 342, 427 and 307 read with Section 149 of IPC against the accused. 6
6. Learned trial Judge was accommodated with oral evidence of PW-1 to PW-11 and documentary evidence Exhibits P-1 to P-10(b) and MO 1 and 2 and Exhibit D-1 for deciding the matter. After adjudication, learned Judge found the accused No.1 guilty for the offence punishable under sections 353 and 324 of IPC and acquitted for the rest of the offences.
7. Out of 11 witnesses who were examined on behalf of prosecution, complainant -Mahesh Gowda is examined as PW-6. His oral evidence is regarding status of employment in the forest department and on 25.08.2007 at 9 P.M. when the patrolling team was on duty which consisted of complainant, Lakshmikantha, Basavaraju and others and when they were near sub- way at Nettakalhundi Village, at 12.30 in the night they saw one person coming from river side and when 7 he was seen in torch light he was Hettappa-accused No.1. When he was asked to stop, he ran away in the dark. Thereafter he came back with 15 to 20 persons armed with matchu (chopper like weapon made of iron) and clubs and approached the patrolling party. At that time Hettappa -Accused No.1 armed with matchu and others had clubs. By that time Cheluvegowda-Accused No.2 and Venkatesh-Accused No.3 held the gun and Hettappa hit the complainant on the head with matchu, complainant fell down and later ran towards the jeep and Appaji followed. He was also hit on the head and shoulder with matchu. Forest guard and Krishna, the driver took them to Government Hospital at H.D.Kote. The police came to hospital and enquired them and took their statement which was marked as Exhibit P-2 and signature on Exhibit P-2 is marked as Exhibit P-2(a). This witness 8 is cross examined. No serious or material impact on the case.
8. Doddapaji-PW-1 is cited as eye witness and also was injured in the incident. He follows the version of the complainant regarding discharge of official duty by patrolling party in the forest area of D.B.Kuppe and attack by Hettappa from river side, patrolling party shouting at him to stop. Thereafter accused persons along with others came and Hettappa was armed with matchu and hit on the head of the complainant. Ajjaiah had chopper and he snatched chopper from Hettappa and hit head and left shoulder of Doddappaji. All other persons hit the officials. Later driver of the jeep took them to hospital. This witness was in hospital for four days as inpatient. The rest of his evidence is towards post incident formalities. 9 There is no material change in the facts and circumstances after cross examination.
9. T.S.Ramesh, Forest Guard, examined as PW-2 endorsed the version of the complainant in substance and he also speaks regarding the obstruction and attack by the accused persons. He also states Hettappa hit the head of the complainant and Cheluvegowda snatched rifle and broke it. Watcher Basavaraj was hit by Venkateshswamy, Annaiah and Tharbujegowda with hands. Doddapaji was hit with chopper on head and left shoulder. Further Tharbusegowda and Hettappa took Basavaraju and confined him in the house and rest of the matter is regarding post incident activities including treatment, mahazar etc. He is cross examined.
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10. Krishna -PW-3 -jeep driver is also one of the member of the patrolling party. He speaks regarding discharge of duty on the date of the incident by patrolling party in view of Onam. He also speaks regarding citing Hettappa. Hettappa ran away in the dark despite asking him to stop and asked all the members to come and further deposes that accused person threw the chopper and ran away from the spot. Krishna turns partly hostile.
11. H.D.Lakshmikanth -PW-4 also is an official in Forest Department and also member of the patrolling party. He also tells about the incident and attack by the accused may not be incongruent manner but in substance.
12. Basavaraju-PW-5- watcher -daily wager and eye witness to the incident. He suffered injuries. He 11 deposes regarding running away of Hettappa into dark and coming back with group of persons and attacking patrolling party and causing injuries and hitting Mahesh Gowda. Further confining this witness in the house and in the morning he was made free by police and DFO.
13. In substance the witnesses from PW-1 to PW-6 are the forest officials, members of patrolling party. It is a case wherein group of forest officials were watching against the sneaking by Poachers into forest area in view of Onam festival and patrolling party was on duty to prevent any breach or attack by the Poachers. Insofar as H.N.Shivakumara Swamy, ASI - PW-9 is concerned he speaks regarding conducting of investigation after taking file from Giriappa, ASI.
14. Dr.M.B.Dinakar-PW-10 who issued wound certificate -Exhibit P-8 after examining Doddappaji- 12 PW-1 on 26.08.2007 and states injuries suffered by Doddappaji were simple:
1. Cut lacerated fresh wound measuring 4 cm on left forehead.
2. Cut lacerated fresh wound measuring 5 cm on left shoulder.
Injuries suffered by Maheshgowda, Complainant -PW-6 -Exhibit- P-9 - examined on 26.08.2007 at General Hospital - H.D.Kote
1. Vertical laceration (8cm) on left side of the fronto parital region of the scalp. (fresh).
Opinion - Simple injury Injuries suffered by Doddappaji-PW-1 as per Exhibit P-8 is as under: - [Examined on 26.08.2007 at General Hospital, H.D.Kote].
1. Incised wound, 4 cm, vertical on left side of the forehead (fresh) 13
2. Incised wound, 5 cm horizontal on left shoulder (lateral) (fresh) Opinion - Simple injury Injuries suffered by Basavaraju-PW-5 as per Exhibit P- 3 is as under:[Examined on 26.08.2007 at General Hospital, H.D.Kote]
1. Contusion over right scapula of back measuring 1"x1" in size.
2. Tenderness over back on left side lower part.
3. Tenderness and pain over distill end of right thigh.
Opinion - Simple injury
15. Basically there is no dispute regarding status of the riding party that they were officials and also were discharging their official duty on the date of incident. 14 The physical act of the accused persons is spoken to by the complainant and other witnesses. When it is forest area if accused persons in person sneak to forest area are bound to explain the reason for their entry into forest and it was accused Hettappa who came from river side and when asked to stop, he did not and ran into dark and came along with group of persons armed with weapons like matchu, clubs etc., and thereafter attack was made inflicting injuries on PW-1, 5 and 6. Details of which are stated above.
16. Learned counsel for appellant would submit that accused persons who are two in number are the farmers and they did not have criminal anticipants and normal action is blown out of proportion. According to learned counsel there was no necessity for attack nor the accused persons confronted with the complainant or any other member of the patrolling party. He 15 would further focus on the aspect in each and every paragraph in the complaint and evidence, the versions are blown out of proportion and the narration contains exaggerations and false accusation and once they are ignored there remains nothing.
17. Learned HCGP would submit the accused person was not in single or two of them but came in a group more particularly after accused No.1 entered into darkness and came back along with group of persons. It is necessary to mention that accused No.1 who is convicted has preferred appeal. Insofar as final report is concerned that was filed against accused Nos.1 to 7, accused Nos.1 to 3 faced trial. Accused Nos.2 and 3 are acquitted. Accused No.1 is convicted for the offence stated above.
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18. Learned trial Judge has found that the accused persons are farmers. They were just guarding their lands against wild animals which were destroying crops. They had gone to forest department to complain as many of them are having agricultural lands nearby and also claim that there was ill will against forest officials. Learned trial Judge also observed regarding non examination of independent witnesses.
19. PW-6 speaks regarding attack by the accused persons. Accused No.1 with matchu, snatching DBBL gun and Hettappa hitting the complainant. Insofar as PW-1 is concerned he deposes regarding hitting him and beating by accused No.3 and all the accused persons attacked the forest officials. Basavaraju in his evidence deposes regarding citing of accused No.1 asking him to stop but he entered darkness and 17 thereafter coming with a group of persons, attacking patrolling party with weapons like matchu, chopper and clubs. He also states that DBBL gun of complainant was snatched and broken by accused No.1 and this witness was confined in the room belonging to Cheluvegowda. This witness was beaten and was freed on the next day at the instance of DFO and police. It appears that the learned trial Judge has taken a soft approach in appreciation of evidence.
20. When the final report was filed against seven accused persons, accused Nos.4 to 7 did not appear before the court. Finally they were separated and split charge sheet was filed and learned HCGP would submit that the final report was submitted against accused Nos.1 to 7 wherein accused Nos.4, 5, 6 and 7 are shown as absconding. However, case was split up before the Committal Judge on 27.06.2008 and 18 directed to file separate charge against absconding accused. Committal order was passed on (02.07.2008) accused Nos.1 to 3 were on bail. The prosecution has not preferred appeal against acquittal of the accused regarding other offence. Accused No.1 was convicted for the offence punishable under Sections 353 and 324 of IPC and was sentenced to undergo simple imprisonment for a period of six months for the offence punishable under Section 353 of IPC and shall also pay a fine of `500/- in default to pay fine amount shall undergo simple imprisonment for a period of 15 days. Sentenced to undergo rigorous imprisonment for one year for the offence punishable under Section 324 of IPC and pay fine of `1,000/- and in default to pay fine amount shall undergo imprisonment for one month.
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21. I do not find exaggeration of facts and incident by the ordinary witnesses and injured witnesses. The Medical evidence is natural. The attending circumstances and facts wholly prove beyond reasonable doubt, the justification of the conviction of the appellant.
22. Learned trial Judge in his wisdom in the context and circumstances of the case has found accused No.1 guilty of the offence punishable under Section 353 and 324 of IPC and I do not find any irregularity, infirmity in the Judgment. Hence, there is no necessity of altering the same. However, insofar as sentence is concerned I find it harsh and on the higher side insofar as rigorous imprisonment for one year for the offence punishable under section 324 of IPC. This court finds sentencing of accused No.1 -appellant herein for a period of three months for the offence punishable under Section 353 and three months for 20 the offence punishable under Section 324 of IPC as proper. The fine amount being maintained at its present shape.
Hence, the following:
ORDER Appeal is allowed in part. Conviction order passed by the learned Trial Judge against the appellant-accused No.1 is confirmed. However, the sentence is altered to bring it down for three months rigorous imprisonment for the offence punishable under Section 353 of IPC and to pay fine of `500/-, in default to pay fine amount to undergo simple imprisonment for 15 days and three months rigorous imprisonment for the offence punishable under Section 324 of IPC and to pay fine of `1,000/-, in default to pay fine amount to undergo simple imprisonment for 30 days. Both the sentences shall run concurrently.21
Accused No.1 is entitled for set of against the period of judicial custody he had undergone before the trial court.
Sd/-
JUDGE SBN