Karnataka High Court
Khadirsab S/O Bashasab Kulageri vs The State Of Karnataka on 17 June, 2020
Author: P.N.Desai
Bench: P.N.Desai
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 17TH DAY OF JUNE, 2020
PRESENT
THE HON'BLE MR.JUSTICE P.N.DESAI
CRIMINAL APPEAL NO.3626/2013
BETWEEN:
Khadirsab S/o Bashasab Kulageri,
Age: 46 years, Occ: Agriculture,
R/o Kondaguli, Tq: Sindagi,
Dist. Bijapur.
.... Appellant
(By Sri. Shivanand V. Pattanshetti, Advocate)
AND:
The State of Karnataka
R/by Addl. SPP Gulbarga Bench,
(Through Sindagi P.S.)
... Respondent
(By Sri Sharanabasappa M.Patil, HCGP)
This appeal is filed under section 374 (2) of Criminal
Procedure Code, praying to admit this appeal, call for the
records from the court below and set aside the judgment of
conviction and order of sentence dated 19.10.2013 passed
by the III Addl. Sessions Judge, at Bijapur in
S.C.No.210/2012 and acquit the appellant / accused in the
interest of justice and equity.
This appeal coming on for final hearing this day,
the court delivered the following;
2
JUDGMENT
This appeal is arising out of judgment of conviction and order of sentence passed by the III Additional Sessions Judge, Bijapur dated 19.10.2013 in S.C.No.210/2012.
2. The brief case of prosecution is that the accused by name Khadirsab was a client of complainant-Prabhugouda who is an advocate. It is further case of the prosecution that, earlier the said accused had engaged the said complainant Prabhugouda, but as there was a delay caused by the said advocate in conducting the case, the accused has got grievance against the said Prabhugouda.
3. It is further case of the prosecution that on 06.10.2010 at about 10.25 a.m. when this PW1 Prabhugouda was within a Court premises at Sindagi, at that time, the accused Khadirsab was also present 3 there and he was staring at the said PW1 Prabhugouda. So, the PW1 Prabhugouda questioned him as to why he is staring at him. Suddenly the said accused has stated that he has come to the Court and abused him stating in Kannada language "bosadi magane" and caught hold his shirt collar and pushed him in the ground and tried Squeezed the neck of complainant. At that time the other advocates by name by B.C.Patil, A.K.Konnur, S.B.Doddamani and B.C.Konnur who were all present there pacified the quarrel. Then the accused threatened him stating that he will take way the life of the said advocate stating so he took a stone which was laying there and threw towards the complainant PW1, some how the PW1 escaped from the said stone. In this regard, he lodged complaint before the Sub-Inspector of Police, Sindagi as per Ex.P1.
4. The said Sub-Inspector of Police PW6- Ramesh Siddappa Rotti, who was Station Officer at the 4 time of received the said complaint and registered the case in Crime No.165/2010 for the offences punishable under Sections 323, 504, 307, 506 of IPC. Then the FIR was sent to the Court as per Ex.P3. He visited the seen of offence place and drawn seen of offence panchanama as per Ex.P4. He recorded the statement of witnesses. Then the accused was produced before him by CW8. He arrested him and produced before the Court after collecting the wound certificate. After completion of investigation, he has filed the charge sheet against the accused for the offences punishable under Sections 323, 504, 307, 506 of IPC. Though the charge sheet is filed under Sections 504, 302, 307 and 352 of IPC, it appears the Trial Court has framed the charge only in respect of offences punishable under Sections 504, 307 and 352 of IPC. Thereafter, the prosecution examined six witnesses as PW1 to PW6 and got marked four documents Exs.P1 to Ex.P4 and closed their side evidence. Thereafter, the statement of accused under 5 Section 313 of Cr.P.C. was recorded by the trial Court. The accused denied the circumstances appearing against him in the evidence of prosecution witnesses. Accused has led the defense evidence of three witnesses as DW1 to DW3. No documents were marked for him.
5. After hearing the arguments, the learned Sessions Judge convicted the appellant under Section 235 (2) Code of Criminal Procedure for the offences punishable under Sections 323 and 352 of IPC and sentenced to undergo simple imprisonment for three months and to pay fine of Rs.500/- in default of payment of fine amount the accused shall undergo simple imprisonment for a period of 15 days for the offence punishable under Section 323 of IPC. The accused is also sentenced to undergo simple imprisonment for 15 days and to pay fine of Rs.250/-, in default of payment of fine, the accused shall undergo simple imprisonment for a period of 15 days for the 6 offence punishable under Section 352 IPC. The Trial Court ordered both sentences to run concurrently and also given set off of Section 428 of Cr.P.C.
6. Aggrieved by the said judgment, the appellant-accused has preferred this appeal contending that conviction and order of sentence passed by the learned judge is contrary to the facts of the case. The Sessions Judge has committed a serious error in convicting the appellant. The Court below convicted the appellant on the basis of evidence of interested witnesses. There is a delay in filing complaint. So his evidence ought to have been disbelieved. The official witnesses are not examined. The Court not appreciated the evidence properly. Without admitting the punishment it is contend that the Trial Court ought to have extended the benefit of the Probation of Offenders Act. So, with these main contentions he has prayed to set aside the judgment and acquit the appellant. 7
7. I have heard the learned counsel for the appellant and learned High Court Government Pleader appearing for the State.
8. Perused the Trial Court records. From the above materials, the points that would arise for my consideration are as under:
1. Whether the prosecution proved its case, beyond all reasonable doubt that on 06.10.2010 at about 10.30 a.m. infront of Judicial Court main gate, Sindagi, the accused caught hold complainant PW1 collar and pushed him down on the ground and try to Squeeze his neck and thereby caused bodily pain, intentionally with the knowledge that hurt would cause to him and committed offence punishable under Section 323 of IPC?
2. Whether the prosecution proved its case, beyond all reasonable doubt that on the above said date, time and place the accused used the criminal force otherwise than on 8 any grave provocation, without consent of the victim PW1 and with a view or with an intention that the offender will cause injury or fear annoyance to the victim PW1 by throwing a stone at him, thereby committed offence under Section 352 of IPC?
3. Whether the judgment of the Trial Court is perverse and not passed an sound principles regarding appreciation of evidence and needs interference by this Court?
9. The undisputed contention are that the accused is client of the complainant-PW1. It is not disputed that earlier he engaged complainant as his advocate for his some other case. His grievance is that the PW1 though engaged by him did not conduct his case properly. The defense evidence adduced by the accused also indicates that there was a quarrel with the victim complainant PW1. Accused himself has stated that when he was in Court premises on 16.10.2010 he told some other client that the advocates by taking the 9 money will not work. When 3 or 4 advocates are going infront of them in Court premises he pointed towards PW1. So the date, place of incident and time of incident are not disputed by the accused. The presence of the victim is also not disputed. The accused pointing towards the PW1 complainant is also not disputed by the accused.
10. PW1 in his evidence stated that he asked the accused, as to why he staring at him, at that time suddenly the accused caught hold him and abused in filthy language and caught hold his shirt collar and pushed him and Squeezed his neck. At that time B.C.Patil, A.K.Konnur, S.B.Doddamani and B.C.Konnur who were all present there tried to rescue him. Then accused took a stone which was laying there and threw the stone towards the PW1, some how he escaped otherwise he could have sustained grievous injuries. So, he lodged a complaint. Though, he was cross- 10 examined at length, there is nothing in his cross- examination, so as to disbelieve his evidence.
11. On the other hand, he has stated that he lodged a complaint with the police station at about 11.00 a.m. or 11.30 a.m. along with the other advocates. It is stated that though he taken the money, he did not file the anticipatory bail application for the accused. But he has stated that though he asked the accused to bring the surety, but he has given case to some other Advocate. So, his evidence is corroborated by the evidence of the other witnesses, who are admittedly advocates and who were present there i.e. by name PW3-Basanagouda Channabasappagouda Patil, PW4 Aravind Kulappa Kannur, whose name appears in the FIR. They have also stated date and time of the incident and place of incident and also stated that the accused was abusing the PW1 and caught hold his shirt pushed him on the ground and accused tried to Squeeze 11 his neck of PW1 stating that he will take away his life, then they pacified quarrel. They have further stated that they came to know that there is a quarrel in respect of anticipatory bail and accused tried to hit the PW1 with a stone by throwing a stone at him. In the cross- examination, it is elicited that at xerox shop and canteen other persons were present. Of course in a Court in the morning there will be a lot of staff members. But these are the natural persons and natural witnesses, who were present in the Court and usually present in Court. Simply because they are advocates they cannot be termed as interested witnesses. It is also in the evidence of the witnesses that there was a exchange of words between the accused and PW1 in the Court premises. There is nothing in the cross-examination of PW4 Aravind Kulappa Kannur also. Their presence in the Court premises is not denied. PW5-Dr.Sarojini Namagond has examined this PW1 and issued wound certificate and 12 the wound certificate indicates that there is a pain and tenderness around the neck with contusion, pain and tenderness in the right gluteal region. The said injuries are simple in nature and caused by blunt object. The doctor has opined that injury is simple in nature. PW6- Ramesh Siddappa Rotti, PSI has investigated the case and filed charge sheet.
12. So, on perusing the evidence of the prosecution witnesses and the defense evidence it is clear that some quarrel took place between the victim and the accused. The accused engaged this PW1 earlier who is advocate, it appears there was some difference of opinion between them and due to that ground he has engaged other counsel. Accused has led the defense evidence of one Chandabi W/o Abdulgani Shahar who has stated that she has come to the Court to file some case. But no records were produced to show that whether she is having any case in the Court. It is stated 13 by all these defence witnesses that about 8 to 10 advocates came and assaulted this accused and they all went to the police station. Though the accused lodged the complaint, the police did not take the complaint. If at all the accused was assaulted by 8 to 10 persons definitely he could have gone to the doctor. Even his son has also stated that 8 to 10 advocates assaulted his father. But how they have assaulted is not stated. It is only general and vague evidence. If at all the police did not take the complaint, he could have given complaint to the higher officer. He is acquainted with the Court proceedings as he has already taken the consultation of advocates for bail. So, he is very well acquainted with the Court proceedings. Even he made allegation that the police have assaulted him. If that is the case, he should have stated before the Magistrate, when he was first produced before the Magistrate. But the order sheet of the Trial Court dated 06.10.2010 indicates that the accused stated that there is no ill-treatment by the 14 police. So, it appears whatever defense taken by accused appears to be taken only for sake of defense and there is no merit in it.
13. I have perused the judgment passed by the learned Sessions Judge. The learned Sessions Judge has considered the entire evidence of prosecution, but has acquitted the accused for the offences punishable under Sections 504 and 307 IPC and convicted the accused under sections 323 and 352 IPC.
14. After hearing on the sentence, the Sessions Court has passed the order on sentence. It is evident that the said incident has taken place on 06.10.2010 and it is also evident that it may be because the counsel did not attend his case promptly. The accused might have some grievance of about PW1. But he should not try to take grievance in the Court premises and try to cause hurt to the said advocate. He tried to assault with stone thereby caused fear and annoyance on the 15 said advocate-PW1. Of course may be he is a villager and may be he is having some other opinion or impression about these advocates. But he himself has stated in the defense evidence that he made a general allegation against the advocates as a class stating that the advocates taking money did not handle the case. Such general allegation is without any basis which is made against the entire advocates community. Anyway he was in the judicial custody for nearly 20 days. The injury certificate indicates that there is no external injury and only injury was simple injury. Considering the totality of the facts and circumstances of the case and evidence, it appears that this incident happened in the heat of movement and it appears that the cause of staring by the accused made PW1 to enquiry him. The advocate PW1 has also got enraged and there was exchange of wards. But accused should not have taken the law in his hand tried to cause of hurt to PW1. Therefore, I hold that the prosecution has proved its 16 case beyond all reasonable doubt that accused has caused simple hurt and used Criminal force otherwise than on grave provocation thereby committed offences punishable under Sections 323, 352 of IPC. The reasons given by the Trial Court and appreciation of evidence by trial Court is proper and correct. Hence, it needs no interference by this Court regarding conviction.
15. Of course, looking into the quantum of sentence it is evident that the Trial Court has imposed a minimum sentence. But taking into consideration that this incident had taken place on 06.10.2010 and this appeal is pending from the year 2012. The accused was already in judicial custody for nearly 20 days. In my considered view, the sentence needs to be altered. Because it is not that accused had any previous history of criminal background or he is a antisocial element. But he has given a case to the advocate and he has got 17 some grievance about not conducting the case properly. So, in that background this incident had taken place. As the accused has already suffered the imprisonment for 20 days, in my considered view, the period of imprisonment is confined or altered to the period of custody already undergone by him and rest of the punishment regarding fine amount stands as it is in respect of offence under Section 323 IPC. In respect of offence under Section 352 IPC, the accused / appellant has been imposed imprisonment of 15 days and fine of Rs.250/-. But looking into the nature of the evidence, in my considered view awarding imprisonment for Section 352 of IPC appears is to be too harsh and not proportionate to the act committed by the accused. In view of the background and the circumstances under which the offence has been committed the sentence of award of imprisonment for offence under Section 352 of IPC is to be set aside and sentence to pay fine of Rs.250/- is to be confirmed.
18Accordingly, I pass the following...
ORDER Appeal is partly allowed.
Consequently, judgment of conviction of accused- appellant for offence punishable under Sections 323 and 352 of IPC passed by the III Additional Sessions Judge, Bidar in S.C.No.210/2012 dated 19.102012 is hereby confirmed.
The sentence of imprisonment in respect of offence under Section 323 is altered or modified to the period of imprisonment already undergone by the accused while he was in judicial custody and to pay fine of Rs.500/-.
In respect of sentence regarding offence under Section 352 IPC, the accused / appellant is sentenced to pay fine of Rs.250/- only and 19 award of sentence of imprisonment in respect of the said offence is set aside.
Send back the records of the trial court forthwith.
Sd/-
JUDGE SMP