Karnataka High Court
Shivarayappa S/O. Chandrappa Muder vs State Of Karnataka on 20 February, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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CRL.RP No. 100174 of 2015
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 20TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL REVISION PETITION NO. 100174 OF 2015
BETWEEN:
1 SHIVARAYAPPA
S/O. CHANDRAPPA MUDER
AGE: 61 YEARS
OCC: AGRICULTURE
R/O. CHIKKALLI, TQ: BYADAGI
DIST: HAVERI
2 MANJAPPA
S/O. BASAPPA HIREMANI
AGE: 44 YEARS,
OCC: AGRICULTURE
Digitally signed by
R/O. CHIKKALLI, TQ: BYADGI
SUJATA SUBHASH
PAMMAR
Location: HIGH
DIST: HAVERI
COURT OF
KARNATAKA
DHARWAD
3 SHIVAMURTEPPA
S/O. BASAPPA AJAGONDAR
AGE: 56 YEARS,
OCC: AGRICULTURE
R/O. CHIKKALLI, TQ: BYADGI
DIST: HAVERI
4 SIDDALINGAPPA
S/O. BASAPPA HIREMANI
AGE: 52 YEARS,
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CRL.RP No. 100174 of 2015
OCC: AGRICULTURE
R/O. CHIKKALLI, TQ: BYADGI
DIST: HAVERI
5 SUBHAS
S/O. SHIVARAYAPPA MUDER
AGE: 35 YEARS,
OCC: AGRICULTURE
R/O. CHIKKALLI, TQ: BYADGI
DIST: HAVERI
6 ANNAPURNAVVA
W/O. SHIVAMURTEPPA AJAGODAR
AGE: 48 YEARS,
OCC: HOUSEHOLD WORK
R/O. CHIKKABASUR, TQ: BYADGI
DIST: HAVERI
7 ASHOK
S/O. BASAPPA HIREMANI
AGE: 46 YEARS,
OCC: AGRICULTURE
R/O. CHIKKALLI, TQ: BYADGI
DIST: HAVERI
8 ERAPPA
S/O. BASAPPA HIREMANI
AGE: 58 YEARS,
OCC: AGRICULTURE
R/O. CHIKKALLI, TQ: BYADGI
DIST: HAVERI
9 HANAMANTAPPA
S/O. NAGAPPA HIREMANI
AGE: MAJOR,
OCC: AGRICULTURE
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CRL.RP No. 100174 of 2015
R/O. CHIKKALLI, TQ: BYADGI
DIST: HAVERI
10 PRAKASH
S/O. SHIVARAYAPPA MUDER
AGE: 30 YEARS,
OCC: AGRICULTURE
R/O. CHIKKALLI, TQ: BYADGI
DIST: HAVERI
...PETITIONERS
(BY SRI. M B GUNDAWADE, ADVOCATE)
AND:
STATE OF KARNATAKA
BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
DHARWAD BENCH, DHARWAD
BY PSI KAGINALE POLICE STATION
...RESPONDENT
(BY SRI. RAMESH CHIGARI, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED U/S 397
R/W SECTION 401 OF CR.P.C. SEEKING TO CALL FOR THE
RECORDS FROM THE COURTS BELOW AND SET ASIDE THE
JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED
13/11/2007 FOR THE OFFENCE P/U/Ss. 143, 147, 148, 341,
323, 324, 326, 504 AND 506 R/W SEC.149 OF I.P.C. AND ALSO
JUDGMENT OF CONVICTION PASSED BY THE II-ADDL. DIST.
AND SESSIONS JUDGE HAVERI (SITTING AT RANEBENNUR)
AND INTURN DIRECTING TO ACQUIT THE PETITIONERS OF THE
CHARGES LEVELLED AGAINST THEM.
THIS PETITION, COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
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CRL.RP No. 100174 of 2015
ORDER
This revision is filed under Section 397 r/w Section 401 of Cr.P.C. by revision petitions/Accused Nos.1 to 4 and 6 to 11, challenging the judgment of conviction dated 13.11.2007 passed by the Civil Judge (Jr.Dn.) and JMFC, Byadgi, in C.C. No.24/2004, whereby he has convicted the said accused/Revision Petitioners herein for the offences punishable under Sections 143, 147, 148, 341, 323, 324, 326, 504 and 506 read with Section 149 of IPC and they were imposed sentence of imprisonment and fine, which was confirmed by the II Additional District and Sessions Judge at Haveri sitting at Ranebennur in Criminal Appeal No.70/2007 vide judgment and order dated 24.07.2015.
2. For the sake of convenience, the parties herein are referred with original ranks occupied by them before the trial Court.
3. The brief factual matrix leading to the case are that, accused and complainant are close relatives. It is -5- CRL.RP No. 100174 of 2015 alleged that, on 17.05.2003 in the early morning, the complainant, his son-in-law and grand son had been to their landed property for doing agricultural work and in the afternoon, the complainant returned to his house. However, his son-in-law and grand-son continued the agricultural work. It is alleged that, in between about 12.30 pm and 1.00 pm., all the accused persons forming into an unlawful assembly, trespassed into the property of the complainant and picked-up quarrel with the son-in- law of the complainant, who was working in agricultural field and assaulted him. After getting knowledge of the said incident, the complainant and CW.5-Rudrawwa along with others rushed to the spot. It is the specific allegation of the prosecution that all the accused have formed themselves into an unlawful assembly and assaulted the complainant and others by agricultural equipments by abusing them in filthy language and also threatened them. It is also alleged that Accused No.3 assaulted CW.5-Rudrawwa, who is the wife of the complainant by a wooden-log (Kuntimele stick) on her right hand, thereby -6- CRL.RP No. 100174 of 2015 she suffered fracture of radius of her right hand. It is also alleged that CW.6 was assaulted by Accused Nos. 1 to 6 by clubs and she suffered simple injuries, while CW.7 was assaulted by Accused No.7 by hands and she has also suffered simple injury. It is also alleged that, CW.8 was assaulted by Accused No.4 by hands and CW.8 was again assaulted by Accused No.2 by the handle of Whip and she has also suffered simple injury. It is also alleged that, during the said incident, CW.4 was wrongfully restrained by the accused and injured were shifted to the hospital and in this regard, the complaint came to be lodged.
4. On the basis of the complaint, the Investigating Officer has investigated the crime and submitted the charge sheet against the accused persons for the offences punishable under sections 143, 147, 148, 341, 323, 324, 326, 504 and 506 read with Section 149 of IPC. Thereafter, the accused were arrested and subsequently they were enlarged on bail. The prosecution papers were also furnished and the charge was also framed against -7- CRL.RP No. 100174 of 2015 accused persons for the aforesaid offences. But, the accused have denied the charge.
5. The prosecution has examined in all 14 witnesses as PWs. 1 to 14 and also placed reliance on 14 documents marked as Exs.P1 to P14, and also marked 4 material objects as MOs. 1 to 4. Thereafter the statements of accused under Section 313 of Cr.PC were recorded to enable the accused to explain the incriminating evidence appearing against them. The case of accused is of total denial. Later on, the learned Magistrate after hearing the learned defence counsel as well as Assistant Public Prosecutor, has convicted the accused persons for the offences punishable under Sections 143, 147, 148, 341, 323, 324, 326, 504 and 506 read with Section 149 of IPC. Being aggrieved, they filed Criminal appeal No.70/2007 before the II Additional District and Sessions Judge, Haveri, sitting at Ranebennur and the learned Sessions Judge after hearing arguments and re-appreciating the evidence, dismissed the appeal by confirming the -8- CRL.RP No. 100174 of 2015 judgment of conviction and order of sentence passed by the Magistrate.
Being aggrieved by the concurrent findings of conviction, the revision petitioners/accused 1 to 4 and 6 to 11 are before this Court. It is also submitted that, after disposal of the appeal, Accused No.5 is reported to be dead. But at this juncture, no material is placed to substantiate the said contention.
6. Heard the arguments advanced by the learned counsel for revision petitioner and the learned HCGP. Perused the records.
7. Learned counsel for revision petitioners would contend that the charge framed itself is erroneous, as the charge was framed against one accused and the allegations were against other accused. But, the conviction was against all the accused, which is erroneous and it has prejudiced the right of the accused. He would also contend that, basically while framing of charges itself the trial Court has not applied its mind and the First Appellate -9- CRL.RP No. 100174 of 2015 Court has framed inconsistent points for consideration as against the charge framed by the Trial Court. He would further contend that the provision of Section 464 of Cr.P.C. cannot be made applicable, as it is not an issue of error, omission or irregularity, but on the face of record, it is evident that the charge itself suffers from illegality and the judgment is pertaining to conviction against all the accused in respect of the charge, which was not at all framed. Hence, he would seek either for setting aside the impugned judgment of conviction of accused or alternatively remitting back the matter to the Trial Court with a direction to frame proper charges.
8. Per contra, the learned HCGP would contend that, though there are certain irregularities in framing of charge, in view of Section 464 of Cr.PC., it would not affect the merits of the case and he would seek for rejection of the revision petition.
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CRL.RP No. 100174 of 2015
9. Having heard the arguments and perusing the records, now the following point would arise for consideration:-
"Whether the judgment of conviction and order of sentence passed by the learned Magistrate and confirmed by the learned Sessions Judge in the First Appeal are erroneous, arbitrary and suffers from any infirmity so as to call for any interference by this Court?"
10. Having heard the arguments and perusing the records, it is evident that the parties are relatives and there were certain disputes between the parties regarding the landed properties. According to the prosecution, the alleged incident is said to have taken place on 17.05.2003 in between 12.30 p.m. and 1.00 p.m. in Sy. No.123/1 of Chikkalli Village. The complaint allegations, statement of witnesses and charge sheet submitted by the Investigating Officer clearly disclose that Accused No.3 has assaulted CW.5-Rudrawwa by an agricultural equipment/club (Kuntimele stick) causing grievous injuries to her. This is
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CRL.RP No. 100174 of 2015the specific allegation made in the charge sheet. However, the learned Magistrate has framed the charge alleging that Accused Nos. 2 and 5 have assaulted CW.4 and CW.5 by whip handle and by club causing them grievous injuries. This charge is completely inconsistent and contrary to the statement of witnesses. It is nobody's case that Accused Nos. 2 and 5 have assaulted CWs.4 &
5. Further it is not the case of prosecution that, CW.4 has also suffered any grievous injuries. But, the charges framed were completely inconsistent and contrary. Apart from that, for the offence under Section 326 of IPC, the charge was not framed as against Accused No.1, 3, 4 & 6 to 11. However, the learned Magistrate has convicted them for the said offence also.
11. Even on perusal of the judgment of the learned Magistrate, it is evident that, he has framed the points for consideration, which run contrary to the charge framed. He framed Point No.7 regarding Accused No.3 assaulting
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CRL.RP No. 100174 of 2015CW.8 by Kuntimele stick. For ready reference, Point No.7 framed by the trial Court is extracted hereunder:
"7. Whether the prosecution has proved beyond all reasonable doubt that, on the above said date, time and place the accused persons being the members of an unlawful assembly in prosecution of the common object of the said unlawful assembly, accused No.3 assaulted CW.8 by using a Kuntimele stick (PÀÄAlªÉÄý PÀnÖUÉ)) and thereby caused grievous injuries to CW.5 and thereby committed an offence punishable under Section 326 r/w Section 149 of IPC?"
But, it is nobody's case that Accused No.3 assaulted CW.8 causing grievous injuries. The grievous injuries were caused to CW.5 and the allegations were against Accused No.3. But, however, the charge was framed as against Accused Nos. 2 & 5 and not against Accused No.3. Contrarily, the conviction order was passed against all the accused persons under Section 326 of IPC and all the accused were not chargesheeted for the offence under
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CRL.RP No. 100174 of 2015Section 326 of IPC. As per the charge framed, these anomalies are not explained and there is no application of mind by the learned Magistrate or the learned Sessions Judge. Even during the course of the trail, the evidence was given in a different way, which may not be relevant, in view of the wrong framing of charges itself. At the relevant time, the prosecution has not applied its mind by filing application for alteration of charge and in that event, there itself the said anomalies in framing charges could have been rectified by bringing it to the notice of the learned Magistrate.
12. The learned HCGP would contend that, under Section 464 of Cr.P.C., there is no need to remit back the matter as it is only an omission and error as well as irregularity. However, it cannot be said to be only an irregularity but, it is an illegality, as charge was framed against two accused, but charge sheet for the offence under Section 326 was filed against different accused, but, the conviction order was passed against all the
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CRL.RP No. 100174 of 2015accused for the offence under Section 326 of IPC. Hence, it cannot be said that, it is not only a mere irregularity and it is an illegality, which goes to the very root of the case.
13. Looking to the facts and circumstances, it is evident that, both the learned Magistrate and the learned Sessions Judge have not properly applied their mind while framing charge/points and pronouncing judgments. Even at the time of pronouncement of judgment, the charge could have been altered after noticing this anomalies, but that was also not done, which has resulted in miscarriage of justice. However, there is some evidence regarding assault and that is required to be tested and for that purpose, the matter requires to be remitted back to the learned Magistrate by setting aside the impugned judgment of conviction and order of sentence passed by both the courts below with a direction to frame the charges as per the allegations of the prosecution in the charge sheet and to give opportunity to the prosecution
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CRL.RP No. 100174 of 2015to lead further evidence and the defence counsel to cross- examine the prosecution witnesses. Hence, in such circumstances, the point under consideration is answered in the affirmative and accordingly, I proceed to pass the following:
ORDER
i) The revision petition is allowed.
ii) The judgment of conviction dated 13.11.2007 passed by the Civil Judge (Jr.Dn.) and JMFC, Byadgi, in C.C. No.24/2004, which was confirmed by the II Additional District and Sessions Judge at Haveri sitting at Ranebennur, in Criminal Appeal No.70/2007 vide judgment dated 24.07.2015, are set aside.
iii) The matter is remitted back to the trial Court with a direction to frame appropriate charges against the accused as observed in the body of this judgment and thereafter by affording reasonable opportunity to the prosecution as well as the defence counsel to lead further
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CRL.RP No. 100174 of 2015
evidence, pass appropriate orders in
accordance with law.
Looking to the old nature of the matter, the parties are directed to appear before the trial Court viz., Civil Judge (Jr.Dn.) and JMFC, Byadgi, on 20.03.2023 at 11.00 a.m., without waiting for any summons and the learned Magistrate is directed to frame appropriate charges against accused persons and proceed to dispose of the matter in accordance with law within a period of six months from 20.03.2023.
The Registry is directed to send back the records to the concerned Courts along with a copy of this judgment to the learned Magistrate as well as the First Appellate Court for information and compliance.
Sd/-
JUDGE KGR* List No.: 1 Sl No.: 22