Karnataka High Court
Narasappa S/O. Kenchappa Adoni vs Kenchappa S/O. Phakkirappa Adoni on 24 September, 2021
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 24TH DAY OF SEPTEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRL.A.NO.2528 OF 2012
BETWEEN
NARASAPPA S/O. KENCHAPPA ADONI
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O. KUTAGANAHALLI,
TQ: KOPPAL, DIST: KOPPAL.
...PETITIONER
(BY SRI. M B GUNDAWADE, ADVOCATE)
AND
1. KENCHAPPA S/O. PHAKKIRAPPA ADONI,
AGE: 26 YEARS, OCC: AGRICULTURE,
R/O. KUTAGANAHALLI, TQ: KOPPAL.
2. NINGAPPA S/O. SANNA KUNCHAPPA,
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O. KUTAGANAHALLI, TQ: KOPPAL.
3. NINGAPPA S/O. ADIVEPPA MAJJIGI
AGE: 32 YEARS, OCC: AGRICULTURE,
R/O. KUTAGANAHALLI, TQ: KOPPAL.
4. SANNA SHIVAPPA S/O. BALAPPA ADONI
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O. KUTAGANAHALLI, TQ: KOPPAL.
5. MANJAPPA S/O. SHIVAPPA ADONI,
AGE: 25 YEARS, OCC: AGRICULTURE,
R/O. KUTAGANAHALLI, TQ: KOPPAL.
6. HALAPPA S/O. NINGAPPA ADONI
AGE: 25 YEARS, OCC: AGRICULTURE,
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R/O. KUTAGANAHALLI, TQ: KOPPAL.
7. SHANTAPPA S/O. PHAKKIRAPPA ADONI,
AGE: 26 YEARS, OCC: AGRICULTURE,
R/O. KUTAGANAHALLI, TQ: KOPPAL.
8. NAGAPPA S/O. BALAPPA
AGE: 39 YEARS, OCC: AGRICULTURE,
R/O. KUTAGANAHALLI, TQ: KOPPAL.
9. MALLANAGOUDA S/O. BASANAGOUDA
AGE: 39 YEARS, OCC: AGRICULTURE,
R/O. KUTAGANAHALLI, TQ: KOPPAL.
10. THE STATE OF KARNATAKA
BY THE STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
CIRUCIT BENCH, DHARWAD,
THROUGH RURAL POLICE STATION,
KOPPAL.
...RESPONDENTS
(BY SRI. B V SOMAPUR FOR R1-R9)
THIS CRIMINAL PETITION IS FILED U/S 372 OF CR.P.C.
SEEKING THAT THE JUDGEMENT OF CONVICTION DATED
15.11.2010 AND ORDER OF SENTENCE DATED 18.11.2010
PASSED FOR THE OFFENCES P/U/S 143, 147, 323, 324, 326,
354, 504, 506 R/W SEC. 149 OF IPC PASSED BY THE SENIOR
CIVIL JUDGE & CJM COURT, KOPPAL IN C.C.NO.142/2009 BE
CONFIRMED BY SETTING ASIDE THE JUDGEMENT AND ORDER
DATED 08.09.2011 PASSED BY THE SESSIONS JUDGE, KOPPAL,
IN CRL.A.NO.48/2010.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
14.09.2021 AND COMING ON FOR PRONOUNCEMENT THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
The appellant, who is complainant before the Trial Court, has preferred this appeal under Section 372 of Cr.P.C., challenging the judgment of conviction and order of sentence dated 08.09.2011 passed by the District and Sessions Judge, Koppal in Criminal Appeal No.48/2010 whereby the learned Sessions Judge has set aside the judgment of conviction dated 15.11.2010 and order of sentence dated 18.11.2010 passed by the learned Senior Civil Judge and C.J.M., Koppal in C.C.No.142/2009.
2. For the sake of convenience, parties herein are referred with the original ranks occupied by them before the Trial Court.
3. Brief facts leading to the case are as under:
A complaint was filed by one Narasappa with Koppal Rural Police Station as per Ex.P1 alleging that the complainant is having three brothers and out of three, one brother by name Fakkeerappa is no more and each brother -4- is having 7 acres of land, but proper measurement of the land has not taken place. It is alleged that the complainant has requested the accused to get the land surveyed and make proper demarcation, for which the accused did not agree. Therefore, it is alleged that he has filed an application with Survey Department on 24.02.2009 and on 27.02.2009 at 4.00 p.m., when he was standing near the tea hotel of one Siddappa at Kutuganahalli, the accused came there by forming an unlawful assembly and picked up quarrel with him questioning him as to why he filed an application for survey of the land and they started assaulting him by clubs. When his brother Shivappa and his children Maruti and Ratnamma came for his rescue, at that time, accused by name Ningappa Majjigi, Sanna Shivappa and Manjappa kicked on the abdomen of Ratnawwa. She was pregnant at the time of the incident. It is alleged that the accused pulled her sari and outraged her modesty. In the said incident, Maruti and Sannappa were assaulted with clubs on their face and head and they suffered bleeding injuries. After the incident, they went to -5- Koppal Government Hospital and took treatment and then Narasappa has lodged the complaint. On the basis of the complaint, the investigating officer undertook the investigation and submitted charge sheet against the accused for the offences punishable under sections 143, 147, 323, 324, 326, 354, 504, 506 r/w section 149 of IPC.
The learned Magistrate has taken cognizance of the alleged offences and after submission of charge sheet by the investigating officer, he issued process. The accused appeared before the learned Magistrate through their counsel and were enlarged on bail. Then the charges were framed, read over and explained to the accused and they denied the charges leveled against them by pleading not guilty and claimed to be tried. Then the prosecution has examined in all 14 witnesses as PW1 to PW14 and got marked 12 documents as Ex.P1 to Ex.P12 and one material object was also marked as M.O.1. Then the statements of accused under section 313 of Cr.P.C., were recorded and the accused have simply denied the case of the prosecution. Then, the learned Magistrate, after -6- appreciating the oral and documentary evidence, has convicted the accused for the offences punishable under sections 143, 147, 323, 324, 326, 354, 504, 506 r/w section 149 of IPC.
4. Being aggrieved by the said judgment of conviction and order on sentence, the accused have filed an appeal under Section 374 of Cr.P.C., before the learned District and Sessions Judge, Koppal in Criminal Appeal No.48/2010 and the learned Sessions Judge has partly allowed the appeal by setting aside the conviction passed by the learned Magistrate for the offences punishable under sections 143, 323, 324 r/w section 149 of IPC and reduced the sentence for the offence under Section 326 of IPC to section 323 of IPC. Further, He has confirmed the conviction for the offence punishable under Section 147, 354, 504, 506 r/w section 149 of IPC with modification of sentence by imposing a flee bite sentence.
5. Being aggrieved by this judgment, the complainant has preferred this appeal under Section 374 of -7- Cr.P.C. However, it is evident that the State has not filed any appeal. But now the State is sailing with the complainant.
6. Heard the arguments advanced by the learned counsel for appellant and the learned counsel appearing for respondents. Perused the Trial Court records.
7. The learned counsel for appellant-complainant would contend that the judgment of the learned Sessions Judge in Criminal Appeal No.48/2010 is contrary to law, facts and circumstances of the case and also legally not sustainable. He would also contend that the Sessions Judge has not appreciated and evaluated the evidence in proper perspective and has not taken into consideration the evidence on record. He would also contend that the Medical Officer/PW7, who examined the injured/PW2 has specifically stated that on 27.02.2009 at 6.15 p.m., when injured/PW2 was brought to him, he noticed tenderness over her lower abdomen and there was threat of abortion and he treated the injured, but ultimately her pregnancy -8- ended in abortion. Hence, he would contend that the injury sustained by PW2 is grievous in nature, which is punishable under section 326 of IPC but the learned Sessions Judge has reduced it to section 323 of IPC, which is completely an erroneous finding. He would also contend that the Sessions Judge has erred in appreciating the contents of Ex.P9/wound certificate and the evidence of the doctor/PW7 as well as the evidence of eyewitnesses. He would contend that the Sessions judge has failed to note the fact that PW2/Ratnawwa has suffered grievous injury, which ultimately resulted in abortion because of assault made by the accused on her abdomen. He would also contend that the Sessions Judge has erred in not convicting the accused for the offence punishable under section 326 of IPC and has not at all appreciated the oral and documentary evidence in detail and hence, he would request for restoration of the judgment passed by the Trial Court or to remand the matter to the Sessions Court for fresh disposal.
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8. The learned HCGP has supported the case of the complainant, while the learned counsel for respondents-accused submits that the learned Sessions Judge has appreciated the oral and documentary evidence in detail and has arrived at a just decision and it does not call for any interference.
9. Having heard the arguments and perusing the records, it is evident that the Trial Court has convicted the accused for the offences punishable under sections 143, 147, 323, 324, 326, 354, 504, 506 r/w section 149 of IPC. But however, the learned Sessions Judge has set aside the judgment of conviction for the offence punishable under sections 143, 323, 324 r/w section 149 of IPC and conviction for the offence punishable under section 326 r/w section 149 of IPC was reduced to section 323 r/w section 149 of IPC. The observation of the learned Sessions Judge was very surprising and the reasons offered are also not worth believable. The Sessions Judge has failed to appreciate the fact that PW2 was pregnant -10- and due to assault on her abdomen by the accused, she suffered abortion.
10. The Medical Officer/PW7 has deposed regarding he examining the injured/PW2 and also issuing Ex.P9/wound certificate. But the Sessions Judge has ignored the evidence of the Medical Officer/PW7, who examined the injured/PW2. On perusal of Ex.P9 coupled with the evidence of PW7, it is evident that PW2/Ratnawwa was admitted in hospital on the same day i.e. on 27.02.2009 and she was treated for threatened abortion for five days and on the fifth day, she developed pain in her abdomen and products were expelled completely. Hence, he would contend that the injury sustained by PW2 in the incident is grievous in nature. The learned Sessions Judge ignoring Ex.P9 and the evidence of PW7 has placed reliance on Ex.P7/scanning report, which was taken on 28.02.2009. But the evidence of PW7/Medical Officer discloses that there was a threat of abortion due to pain in the abdomen and as such, she was treated for threatened -11- abortion and later on the fifth day it ended into abortion. Under these circumstances, the entire approach of the learned Sessions Judge is erroneous. PW2 was admitted in the hospital on the same day and on the fifth day, her pregnancy ended into abortion because of pain in her abdomen. When there is a specific case of assault on the abdomen of PW2/Ratnawwa and that too when she was pregnant, the learned Sessions Judge has gone to the extent to observe that since the abortion was after five days, there is no evidence co-relating that the abortion was because of the alleged assault. This observation of the learned Sessions Judge is very strange. No doubt, no weapon was used by the accused in assaulting PW2, but they have assaulted the other witnesses by sticks. Though the offence under section 326 of IPC is not attracted as no weapon was used, but since PW2 suffered abortion, which injury is grievous in nature, the offence under Section 325 of IPC is attracted and the learned Sessions Judge should have considered this aspect. He has completely ignored all these aspects. Further, very surprisingly he set aside the -12- conviction under section 143, 323, 324 r/w section 149 of IPC and again without any basis, he brings down the offence under section 323 r/w section 149 of IPC instead of section 325 of IPC. He has also imposed only a flee bite sentence, which has resulted in miscarriage of justice. The entire approach of the learned Sessions Judge is erroneous and he has not dealt it in accordance with law.
11. Further, it is to be noted here that the allegations were, assault by sticks. But the charge under section 324 of IPC was not at all framed by the Trial Court. None of these aspects have been considered by the learned Sessions Judge and he should have remanded the matter for fresh trial considering the anomalies in framing the charge or improper framing of charge, as regarding abortion, charge under section 323 of IPC is framed, which was improper. All these facts and circumstances clearly establish that the learned Sessions Judge has not at all applied his mind and in a mechanic way, he disposed of the appeal without properly appreciating the facts. Hence, -13- the learned counsel for appellant-complainant as well as the learned counsel for respondents would submit that the matter may be remanded to the Sessions Court so as to set the things right. Looking to these facts and circumstances, the impugned judgment passed by the learned Sessions Judge needs to be interfered with and requires to be set aside by remanding the matter for fresh disposal by the learned Sessions Court by appreciating the entire evidence on record. Accordingly, I proceed to pass the following:
ORDER The appeal is allowed.
The impugned judgment dated 08.09.2011 in Criminal Appeal No.48/2010 passed by the learned District and Sessions Judge, Koppal is hereby set aside and matter is remanded to the Sessions Court for fresh disposal, in the light of the observations made in the body of the judgment. The learned Sessions Judge, in any event, is directed to -14- dispose of the appeal within six months from the date of receipt of records.
Registry is directed to send back the TCR immediately with copy of this order for compliance.
In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are dismissed accordingly.
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JUDGE yan