Karnataka High Court
Ramappa S/O Nagappa Jadi vs The State Of Karnataka on 28 March, 2019
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COU RT OF KARNA TAKA
DHARWAD BENCH
DATED TH IS THE 28 T H DAY OF MARCH 2019
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
CRIMINAL REVISIO N PETITION NO .2144/2011
BETWEEN:
1. RAMAPPA S/O NAGAPPA JADI
AGE: 35 YEARS , OCC: AGRICULTURE,
R/O HULIHAIDAR VILLAGE,
TQ: KUSTAGI, D IST: KOPPAL
2. IMAMSAB S/O MANUSAB YALIGAR
AGE: 50 YEARS , OCC: AGRICULTURE,
R/O HULIHAIDAR VILLAGE,
TQ: KUSTAGI, D IST: KOPPAL
3. MAHABALESH S/O YAMANAPPA GODI
AGE: 44 YEARS , OCC: AGRICULTURE,
R/O HULIHAIDAR VILLAGE,
TQ: KUSTAGI, D IST: KOPPAL
4. JILANISAB S/O BARIMSAB KANKAGIRI
AGE: 41 YEARS , OCC: AGRICULTURE,
R/O HULIHAIDAR VILLAGE,
TQ: KUSTAGI, D IST: KOPPAL
... PETITIONERS
(BY SRI S S YADRAMI, ADVOCA TE.)
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AND:
THE S TA TE OF KA RNATAKA
BY TAVARAGRE PO LICE,
REP. BY THE S TA TE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA
CIRCUIT BENCH, DHARWAD,
... RESPONDENT
(BY SRI PRAVEEN K. UPPAR, HCGP.)
THIS CRIMINA L REVISION PETITION IS FILED
UNDER SECTION 397 READ WITH SECTION 401 OF
CODE OF CRIMINAL PROCEDURE, PRAYING TO SET
ASIDE THE JU DGEMENT AND ORDER DATED
09.02.2011 IN CRL.A .NO.43/2010, PASSED BY THE
SESSIONS JUDGE, FAST TRACK COURT-I, KOPPA L,
PARTY ALLOWING THE APPEAL AND REMANDING THE
MATTER TO CALL FOR REPORTS O F PO AND APP, TO
CONSIDER ANTECEDENTS AND THEN TO PASS
ORDERS CONFIRMING THE ORDERS OF FINDING
GUILTY PASSED BY THE JMF C KUSHTAGI IN
C.C.NO.42/2009 DATED 19.10.2010, CONVICTING THE
PETITIONERS , ETC.,.
THIS PETITION H AVING BEEN HEA RD IN PART,
COMING ON FOR FURTHER HEARING THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
Heard the arguments of revision petitioners' counsel and also the HCGP for respondent State.
2. The factual matrix of the case is that, it is alleged in the complaint that on 21.11.2008 3 around 12.00 noon the complainant had been to for the purpose of marketing with his brother to Tavaragera and when he was passing near the bus-stand, these petitioners came together and stopped him and accused No.1 saying that since he has purchased the land, asked him to give up the possession or they do away with his life and he assaulted with chappal on his cheek and the other accused saying not to spare him, assaulted with banana stem on his chest and on his back and his brother Shameedsab and Sangappa Kumbar pacified the galata and the accused persons have also caused threat to his life.
3. Based on the complaint, the Tavaragera police have registered a case in Crime No.67/2008 against the accused persons, for the offence punishable under sections 341, 323, 324, 355, 504, 506 read with section 34 of IPC.
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4. The prosecution in order to prove the charges leveled against these petitioners, examined PWs.1 to 7 and got marked the document Exs.P.1 to P.3(a) and also got marked M.Os.1 and 2. The Court below after hearing both the parties, convicted the accused for the offence punishable under sections 504, 324, 355, 506 read with section 34 of IPC. Being aggrieved by the judgment of conviction, the petitioners have approached the lower appellate Court and filed Crl.A.No.43/2010. The lower appellate Court allowed the appeal in part and set aside the sentence and remitted the matter back to the trial Court with a direction to call for the report of the Probationary Officer as provided under section 4(2) of Probation of Offenders Act, 1958 regarding past antecedents and conviction of the accused persons and also directed to obtain report from the Investigating Officer and Assistant Public Prosecutor regarding any past conviction and 5 further directed to consider the reports and also consider the circumstance and nature of offence and character of the offenders and thereafter to pass considered orders under section 3 and 4 of the Probation of Offenders Act, in accordance with law.
5. Being aggrieved by the judgment of confirmation and remanding of the matter to the trial Court, the petitioners have preferred this revision petition.
6. The main grounds urged in this petition are that the Courts below have not properly considered the material on record and the very findings of both the Courts below and conviction are perverse and failed to take note of the contradictions, omissions, improvements and exaggerations in the evidence of the prosecution witnesses and the Court below relied upon the 6 evidence of highly interested and partisan witnesses.
7. The other grounds urged in the revision petition are that the place of alleged incident is in a distance of less than a kilometer from the police station but there is an inordinate delay of more than 8 hours and no reasons are attributed for the delay and ocular evidence totally differs from medical evidence since PW.1 in the cross- examination he himself admitted that he has not at all suffered any injuries and wound certificate is doubtful.
8. M.O.1 chappal is a hawai chappal made with soft rubber and the injury stated in the wound certificate can never be caused by using the same and invoking of section 355 of IPC also is not sustainable. The Courts below have ignored the fact that there is a civil dispute between the parties and instead of acquitting, both the Courts 7 below erroneously convicted the petitioners and hence prayed this Court to set aside the order of conviction.
9. The counsel appearing for the revision petitioners in his arguments he vehemently contended that both the Courts below have committed an error in appreciating the evidence available on record and finding of both the Courts below is perverse and arbitrary and hence prayed this Court to set aside the order of conviction.
10. Per contra, the HCGP in his arguments he vehemently contended that the prosecution relied upon the evidence of PWs.1 to 4 including the evidence of the doctor who is examined as PW.4 and nothing is elicited in the cross- examination of PW.1. PW.1 is the relative of PW.3, hence the prosecution has relied upon the independent witness PW.5 and nothing is elicited in the cross-examination of PWs.1, 3 and 5 and 8 the argument of the petitioners counsel that the Courts below relied upon the interested witnesses cannot be accepted. Nothing is elicited in the cross-examination of these witnesses with regard to the incident and both the Courts have relied upon both oral and documentary evidence and rightly convicted the accused. However the lower appellate Court also taken note of the incident and directed the Magistrate to invoke the provisions of Probation of Offenders Act and hence there are no grounds to interfere with the findings of the Courts below and there is no any material to come to the conclusion that the findings of both the Courts are perverse.
11. Having heard the arguments of the petitioners counsel and also the HCGP for the respondent State, this Court has to examine whether the conviction of the petitioners and findings of the Courts below is perverse. 9
12. Having considered the contention of the revision petitioners' counsel and also the HCGP, this Court would like to make it clear that the scope of this Court is very limited while exercising the revisional jurisdiction, the reivisional Court cannot sit as a second appellate Court to re-appreciate the evidence unless the judgment of the Courts below suffers from perversity as held in the judgment of the Apex Court in the case of S tate of Mahar ashtr a vs. Jagmohan S ingh Kuldip Singh Anand reported in 2004(7) SCC 659 and also in the judgment of S tate of Gujar ath vs. Af roz Mohammed Hasanf atta reported in 2019 SCC Online SC 132, the Apex Court reiterated that under section 397 of Cr.P.C., the High Court does not sit as a second appellate Court and could not re-appreciate the evidence unless the judgment of the Courts below suffers from perversity. 10
13. This Court would like to consider the material on record within the scope and ambit of the revisional jurisdiction and only to examine whether the perverse finding is given by both the Courts below and the lower appellate Court. On perusal of the material available on record, the prosecution relied upon the evidence of injured witness who has been examined as PW.1 and in his evidence he reiterated with regard to the incident and categorically says that accused No.1 has assaulted with chappal and accused No.3 assaulted with banana stem and other accused persons abused in a filthy language and also caused life threat.
14. No doubt in the cross-examination of PW.1, he admits that he has not sustained injury, he categorically says that immediately after the incident he went to the police station and the police sent him to the hospital. In support of his 11 contention he has also relied upon the evidence of the doctor who has been examined as PW.4.
15. PW.4 in his evidence he says that on 21.11.2008 at around 9.00 p.m., P.C.No.309 brought him to the hospital and he found two injuries and the injuries were simple in nature. In the cross-examination he admits that his clothes were not torn and he did not find any external injuries. In the cross-examination he saw the M.O.2 banana stem was shown to him and suggested that no such injury would be caused if it is used for assaulting and the same was denied. The prosecution also relied upon the evidence of PW.3, who is the brother of PW.1 and injured. He also reiterates the evidence of PW.1 and he also says that he took the injured to the hospital and also he admits that there was a civil dispute between the parties and a suggestion was made 12 that petitioners have not assaulted and the said suggestion was denied.
16. The prosecution relies upon the evidence of PW.5. PW.5 also says that accused No.1 assaulted PW.1 with chappal and abused him in a filthy language and accused persons have caused life threat and accused No.3 assaulted PW.1 with banana stem. He was also subjected to cross-examination. In the cross-examination it is elicited that he was not aware of any civil dispute between the parties. He says that the incident was taken place in front of banana shop and people were gathered near the place of incident and he cannot say how many persons were there at the time of incident. He further says, he was proceeding towards downwards of bus-stand and at that time he witnessed the incident. Nothing is elicited in the cross-examination to disbelieve the 13 evidence of PW.5. These witnesses are the material witnesses.
17. PW.6 is the PSI who has partly investigated the matter and other witnesses PW.7 is also the PSI of Tavaragera. For having taken note of both oral and documentary evidence, the prosecution relied upon the evidence of PW.1, 3 and 5. The contention of the revision petitioners' counsel that all the witnesses are interested witnesses and the same cannot be accepted. PW.5 categorically says that when he was proceeding near the bus-stand, at that time he witnessed this incident and hence he is an independent witness. No doubt PW.3 is none other than the relative of PW.1 and the doctor's evidence is also clear that those injuries could be caused if he has been assaulted with chappal and banana stem.
18. On perusal of the entire cross-
examination of PWs.1, 3 and 5, nothing helpful to 14 the petitioners has been elicited from the mouth of these witnesses and the Courts below also while appreciating the evidence available on record considered the evidence of these witnesses who are material witnesses. The Court below while appreciating the points No.1 to 6, considered the evidence of prosecution witnesses and considering the material in respect of the offence under section 341 of IPC, held that the prosecution failed to prove the guilt of the accused with regard to wrongfully restraining the complainant. However, considering the other charges in respect of sections 504, 323, 324, 506 and 355 of IPC, came to the conclusion considering the evidence of PWs.3 and 5, who are the eye witnesses to the incident and also considering point No.2, referred the evidence taking note of the filthy words used at the time of incident and considered the doctor's evidence coupled with the evidence of PWs.1 and 5 15 and appreciated both oral and documentary evidence.
19. The lower appellate Court also while re-appreciating the evidence considered the material on record and came to the conclusion that PWs.1, 3 and 5 have given evidence consistently of spurious story of the prosecution. Variations found are bound to since the incident took place in the year 2008 and the witnesses were examined in 2010 and the said variations are only minor variations and there is no any major contradictions in the evidence of PWs.1, 3 and 5 and further formed an opinion that testimony of those witnesses i.e., PWs.1, 3 and 5 is sufficient to believe the same.
20. This Court also carefully examined the evidence available before the Court and PWs.1, 3 and 5 unequivocally deposed before the Court regarding the incident how it was happened and 16 narrated about the incident. Nothing is elicited in the cross-examination of PWs.1, 3 and 5 and the Courts below considering the evidence of PWs.1, 3 and 5 and also coupled with the evidence of PW.4 doctor, rightly came to the conclusion that the incident was taken place and these petitioners have assaulted and abused in filthy language using M.Os.1 and 2 and the medical evidence also corroborates the evidence of PW.1.
21. The counsel appearing for the revision petitioner mainly contends that though PW.1 admits that he has not sustained any injuries, the medical evidence available before the Court is contrary to his evidence and this contention cannot be accepted for the reason that he categorically says that they have assaulted with chappal and banana stem and his answer is with regard to he has not sustained any external injuries. PW.3 also in his evidence he categorically 17 says that he has sustained internal injuries and the wound certificate which is marked is also clear that the injury which he has sustained is simple in nature and hence this Court do not find any perversity in appreciating the evidence by the lower Court as well as the lower appellate Court. Hence the very contention of the counsel appearing for the revision petitioner cannot be accepted.
22. Regarding sentence is concerned, it has to be noted that the lower Court imposed punishment of simple imprisonment for five months and also fine of `2,000/- each, as against accused Nos.1 to 4 for the offence punishable under section 504 read with section 34 of IPC and so also in respect of the offence under section 506 read with section 34 of IPC, simple imprisonment of six months and fine of `2,000/- each. The accused No.3 was convicted for the offence 18 punishable under section 324 of IPC and sentenced to undergo simple imprisonment for one year and to pay a fine of `3,000/-. The accused No.1 is convicted for the offence punishable under section 355 of IPC and sentenced to undergo simple imprisonment for one year and to pay fine of `3,000/-.
23. Having taken note of the material available on record, with regard to the offence punishable under section 504 and 506 read with section 34 of IPC is concerned, this Court is of the opinion that sentence has to be modified in respect of accused Nos.1 to 4 are concerned, and hence it is appropriate to modify sentence as only fine of `1,000/- each, for both the offences separately instead of sentencing them to undergo simple imprisonment and to pay fine of `2,000/- each as imposed by the trial Court.
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24. The accused No.3 is the person who has assaulted with banana stem and hence having taken note of the incident took place long back that too on account of civil dispute between the parties, it is appropriate to modify the sentence as only fine of `5,000/-, instead of imprisonment for one year and fine of `3,000/- as imposed by the trial Court for the offence punishable under section 324 of IPC.
25. The accused No.1 had inflicted the injuries with chappal on PW.1 and having taken note of the same, it is appropriate to modify the sentence as only fine of `10,000/- instead of sentence of imprisonment and fine of `3,000/- as imposed by the trial Court for the offence punishable under section 355 of IPC.
26. In view of the discussions made above, this court proceed to pass the following: 20
ORDER The revision petition is disposed of confirming the judgment of conviction. The sentence is modified as under.
The accused Nos.1 to 4 are sentenced to pay a fine of `1,000/- each, for the offence punishable under sections 504 and 506 read with section 34 of IPC separately.
The accused No.3 is sentenced to pay a fine of `5,000/-, for the offence punishable under section 324 of IPC.
The accused No.1 is sentenced to pay a fine of `10,000/- for the offence punishable under section 355 of IPC.
The revision petitioners are directed to pay the fine amount within one month from today. On depositing of the fine amount, the lower Court is directed to pay the fine amount of `20,000/- in 21 favour of the victim PW.1 on proper identification and the remaining amount of `3,000/- shall go to the State. If the petitioners fail to pay the fine amount within the stipulated period, they shall undergo simple imprisonment for a period of six months.
Sd/-
JUDGE M r k/ -