Karnataka High Court
Shivasharnappa S/O Basappa Melinmani vs The State Of Karnataka on 5 August, 2013
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IN THE HIGH COURT OF KARNATAKA,
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 05TH DAY OF AUGUST 2013
BEFORE
THE HON'BLE MR.JUSTICE V.SURI APPA RAO
CRIMINAL APPEAL NO.3663/2009
BETWEEN
1. SHIVSHARNAPPA
S/O BASSAPPA MELINMANI
AGE: 53 YEARS, OCC: COOLIE
R/O MALLI
2. JAIBHEEM
S/O SHIVSHARNAPPA MELINMANI
AGE: 21 YEARS, OCC: COOLIE
R/O MALLI
3. KALAMMA
W/O SHIVASHARNAPPA MELINMANI
AGE: 40 YEARS, OCC: HOUSEHOLD
R/O MALLI
4. BHEEMABAI
W/O NINGAPPA BALBATTI
AGE: 50 YEARS, OCC: HOUSEHOLD
R/O BALBATTI
5. JATTEPPA
S/O RAYAPPA BADIGER
AGE: 60 YEARS, OCC: AGRICULTURE
R/O HADNOOR
6. RAMESH @ RAMAPPA
S/O JATTEPPA BADIGER
2
AGE: 23 YEARS, OCC: STUDENT
R/O HADNOOR
7. SHARNAPPA
S/O BHEEMAPPA HARIJAN
AGE: 25 YEARS, OCC: COOLIE
R/O MALLI
8. HALLEPPA
S/O BHEEMARAYA BADIGER
AGE: 38 YEARS, OCC: COOLIE
R/O MALLI
9. MAREPPA
S/O MUDDAPPA HARIJAN
AGE: 40 YEARS, OCC: COOLIE
R/O HADNOOR
10. SRIKANT
S/O LALAPPA HARIJAN
AGE: 19 YEARS, OCC: STUDENT
R/O NAGNOOR
11. KANTAPPA
S/O BHEEMARAYA HARIJAN
AE: 40 YEARS, OCC: COOLIE
R/O NAGNOOR
12. JAIBHEEM
S/O LALAPPA HARIJAN
AGE: 19 YEARS, OCC: STUDENT
R/O NAGNOOR, DIST. GULBARGA
... APPELLANTS
(BY SRI SHIVASHARANA REDDY, ADVOCATE
FOR SRI USTAD SADAT HUSSAIN, ADVOCATE)
AND
THE STATE OF KARNATAKA
THROUGH YEDRAMI POLICE STATION
TQ. JEWARGI, DIST. GULBARGA ... RESPONDENT
(BY SRI. SANJAY A. PATIL, ADDL. SPP)
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THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C
AGAINST THE JUDGEMENT AND ORDER DT. 04.12.2009 PASSED
BY THE III ADDL. SESSOINS JUDGE AT GULBARGA, IN S.C
NO.178/2009 CONVICTING THE APPELLANTS/ACCUSED FOR THE
OFFENCES P/U/S. 147, 148, 325 R/W 149 OF IPC AND THE
APPELANTS/ACCUSED ARE SENTENCED TO PAY FINE OF
RS.500/- EACH, ID S.I. FOR 15 DAYS EACH FOR THE OFFENCE
PUNISHABLE U/S 147 OF IPC AND THE APPELLANTS/ACCUSED
ARE SENTENCED TO PAY A FINE OF RS.1,000/- EACH ID S.I. FOR
ONE MONTH FOR THE OFFENCE PUNISHALBE U/S 148 OF IPC
AND THE APPELLANTS/ACCUSED ARE SENTENCED TO UNDERGO
R.I FOR TWO (2) YEARS EACH AND TO PAY FINE OF RS.2,500/-
EACH ID S.I. FOR 3 MONTHS EACH FOR THE OFFENCE
PUNISHABLE U/S 325 OF IPC.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This Criminal Appeal is filed challenging the judgment of conviction and order of sentence dated 04.12.2009 passed by the III Additional Sessions Judge, Gulbarga in Sessions Case No.178/2009, whereby the learned Sessions Judge found the appellants guilty of the offence punishable under Sections 147, 148 and 325 read with Section 149 of IPC and sentenced them to pay fine of Rs.500/- each, in default of payment of fine, S.I. for 15 days each for the offence punishable under Section 147 of IPC and sentenced them to pay fine of Rs.1,000/- each, in 4 default, S.I. for one month each for the offence punishable under Section 148 of I.P.C and further sentenced them to undergo R.I. for two (2) years each and to pay fine of Rs.2,500/- each, in default, S.I. for 3 months each for the offence punishable under Section 325 of IPC. After the fine amount is collected, an amount of Rs.7,000/- was directed to be paid to each of the injured witnesses i.e., PW-4 Laxman S/o Halleppa, PW-7 Yamanawwa W/o Halleppa, PW-8 Sreedivi D/o Halleppa and PW-9 Laxmibai W/o Gurappa.
2. Aggrieved by the judgment of conviction and order of sentence passed by the Sessions Judge, the appellants filed this appeal.
3. The relevant facts leading to filing of this appeal are hereunder:
On 20.01.2008 at about 8.45 pm, when PW.4 Laxman-complainant after taking dinner along with his family members sitting infront of his house at Malli village, 5 the appellants in furtherance of their common object formed into an unlawful assembly and trespassed into the house of the complainant armed with seized deadly weapons like sticks, stones, knife and cycle chain in their hands and committed rioting on them and picked up quarrel with him and accused No.1 assaulted the complainant-PW.4 with knife on his left leg, below knee, accused No.2 assaulted him with cycle chain on his left hand and left leg and left leg and when PWs.7 and 8 intervened to rescue the complainant-PW.4, accused Nos.3 and 4 assaulted PW.7 with stones on her head, left index finger, accused No.8 assaulted PW.8 with stone on her right leg and accused Nos.5 to 7 assaulted PW.9 with stones on her and caused grievous injuries to them. The accused further abused the complainant and PWs-7 to 9 in filthy language with an intention to insult them. On the basis of the complainant lodged by PW.4, the respondent- police have registered a case in Crime No.05/2008. After investigating into the incident and after receipt of the 6 wound certificates, the Investigating Officer filed charge- sheet against the appellants.
4. After hearing the learned counsel for both parties, the learned III Additional Sessions Judge, Gulbarga framed charges under Sections 147, 148, 325, 308, 504, 506, 427 read with 149 of IPC against the appellants, for which the appellants pleaded not guilty and claimed to be tried.
5. In order to bring home the guilt of the accused for the aforesaid offences, the prosecution has examined PWs.1 to 13 witnesses and relied on Exs.P.1 to P.11 documents and MOs.1 to 4.
6. Considering the evidence of the injured eyewitnesses and the medical evidence produced by the prosecution, learned Sessions Judge found the accused/appellants guilty of the offence punishable under Sections 147, 148 and 325 read with Section 149 of IPC 7 and passed the above order of conviction, while acquitting the accused for the offence punishable under Sections 308, 427, 504, 506 read with 149 of IPC.
7. Heard the learned counsel for the appellants and the learned Additional SPP for the respondent-State.
8. Learned counsel for the appellants submitted that one month prior to the incident, the son of accused No.1 married the daughter of PW.11. The marriage between the son of accused No.1 and daughter of PW.11 was love marriage and they belong to same community. Due to which there was a dispute. He further submitted that on the date of incident, the complainant went to the house of accused No.1 and tried to outrage the modesty of his daughter by name Sharanamma. Therefore, there was quarrel between the parties. It is further submitted that the injured have not received any fracture injuries. The Medical Officer has opined that the injuries are grievous in nature, as the movements of the legs and hands of the 8 injured were restricted on account of injuries sustained by them. It is further submitted that PWs.2 and 12, who were the independent eyewitnesses to the incident did not support the prosecution case and even the evidence of the injured witnesses also not consistent with regard to overt-acts of the accused. Therefore, the appellants are entitled for acquittal.
9. Per contra, learned Additional SPP appearing for the respondent-State submitted that though the independent eyewitnesses turned hostile to the prosecution, the injured witnesses have clearly stated the overt-act of all the accused and their evidence is supported by the medical evidence. Therefore, the Trial Court was justified in convicting the appellants and there are no grounds to interfere with the judgment of conviction and order of sentence passed by the trial Court.
10. Out of the prosecution witnesses examined, PWs.4 and 7 to 9 are the injured witnesses, PWs.10 and 9 11 are the eyewitnesses to the incident, who are the family members of the complainant and PWs.2 and 12 are the neighbors of the complainant, but they turned hostile to the prosecution. The prosecution therefore relying on the evidence of injured eyewitnesses and the medical evidence in order to bring home the guilt of the accused for the offence punishable under Sections 147, 148 and 325 of IPC.
11. The Trial Court, on appreciation of the entire evidence on record, observed that though the independent eyewitnesses PWs.2 and 12 did not support the prosecution case, the evidence of injured witnesses PWs.4 and 7 to 9 is supported by the medical evidence.
12. PW.4, who lodged Ex.P7 complaint to the police immediately after the incident, has stated in his evidence that his house and the house of the accused were situated adjacent to each other and the son of accused No.1 eloped his brother's daughter and married her prior to one month 10 of the incident. Due to which they have enimical terms with the accused. He further stated that about 2 years back at about 8.30 pm when himself and his family members were sitting on the katta infront of their house talking with each other, at that time all the accused came there holding knife, axe, sticks and stones in their hands and suddenly started beating him. According to him, accused Nos.1 and 2 assaulted him with knife and cycle chain below the knee of left leg and caused bleeding injury and accused No.2 assaulted him with cycle chain on his elbow and when his mother came to his rescue, accused No.2 assaulted her also on her forehead, hands and legs and caused injuries. The accused Sharanappa further assaulted his sister Laxmibiai with knife on her mouth and lip was torn and also assaulted on the right tow and the accused further assaulted his brother's wife Shreedevi with stones. He further identified MOs.1 to 4 weapons used by the appellants for commission of the offence and the appellants thrown the weapons at the place of incident 11 and went away. He lodged Ex.P7 complaint on the same day. In the cross-examination, PW.4 admitted that prior to the incident, accused No.1 lodged a complaint against him stating that he went to the house of accused No.1 and tried to outrage the modesty of his daughter.
13. PWs.7 and 8 also sustained injuries in the same incident. They have stated in their evidence that on the date of incident when the complainant and they were sitting infront of their house on the katta, all the accused came there holding knife, sticks, cycle chain and stones in their hands.
14. According to PW.7, accused No.1 assaulted PW.4 with knife and caused bleeding injuries, accused No.2 assaulted PW.9 with knife on her lip and caused bleeding injuries and all the accused assaulted them with knife, sticks and stones, when she tried to intervene in the incident, she was also assaulted by the accused and she also sustained injuries on her back. She also identified 12 MOs.1 to 4 weapons used by the accused for commission of the offence.
15. The another injured witness PW.8 has stated that the accused assaulted her, PW.4 and PW.9 with knife, cycle chain and sticks. She received injuries on her leg and back. The injured witnesses i.e., PWs.7, 8 and 9 have not stated the overt-acts of the accused and which of the accused are responsible for causing injuries to them.
16. The learned Sessions Judge also found that the injured witnesses have not specifically stated which of the accused assaulted them and by which weapon. However, PW.4 who lodged Ex.P7 complaint has stated the overt- acts of the accused and his evidence was supported by the medical evidence with regard to the injuries received by him and PWs.7 to 9.
17. In addition to the evidence of the injured witnesses, there is evidence of PWs.10 and 11, who are 13 also the eyewitnesses to the incident. They have clearly stated in their evidence that prior to one month of the incident, accused No.1's son kidnapped the daughter of PW.10 by name Sumitra and married her, since then there was enmity between both families, with which, the accused trespassed into their house and assaulted PWs.4 and 7 to 9 with sticks, stones, knife and cycle chain and caused injuries.
18. PW.3 Medical Officer attached to CHC, Yedrami has stated in her evidence that on 21.01.2008 at about 12.30 am she examined the injured PWs.4 and 7 to 9 and issued Exs.P3 to P6 wound certificates. According to her, PW.4 received incised wound on the left leg measuring 4 cm. and internal injury on right forearm, PW.7 received deep incised wound on the forehead measuring 1 cm. and four wounds on left hand measuring 1 cm. each, PW.8 received one internal injury on the right ankle joint and PW.9 received wound on the right and left hands 14 measuring 1-½ inches, lacerated wound on the right toe and wound on the upper lip.
19. According to PW.3, the injuries found on the persons of PWs.4 and 7 to 9 are grievous in nature. In the cross-examination, PW.3 has stated that since movements of the legs and hands were restricted, she has mentioned the injuries are grievous in nature.
20. By the evidence of PW.3, the prosecution could able to prove that PWs.4 and 7 to 9 sustained injuries. The injured eyewitnesses and PWs.10 and 11 also stated the participation of the accused in the crime. All of them have stated that the accused attacked them with sticks, stones, knife and cycle chain and caused injuries to them.
21. The trial Court, considering the entire evidence on record, particularly the medical evidence, rightly came to the conclusion that the accused are liable for punishment under Sections 147, 148 and 325 read with 15 149 of IPC, since the injuries mentioned in the wound certificates indicates the injuries sustained by the injured persons namely, PW.4 Laxman, PW.7 Yamanawwa, PW.8 Sridevi and PW.9 Laxmibai are grievous in nature.
22. Admittedly, the injured have not received any fracture injuries. The injuries found on the persons of the injured as per Exs.P3 to P6, wound certificates are not so serious. The medical evidence shows that as the movements of the legs and hands are restricted, she has mentioned the injuries are grievous in nature.
23. Learned counsel for the appellants submitted that the appellants are coolies and some of the appellants are ladies, students as on the date of incident. Appellant Nos.1 to 10 were in judicial custody for 45 days and appellant Nos.11 and 12 were in judicial custody for 61 days. It is further submitted that the accused and the complainant's family are now maintaining cordial relationship and they are neighbors. Considering the 16 nature of injuries and the other circumstances, I feel, it is just and reasonable to modify the sentence awarded against the appellants under Section 325 of IPC. Instead of imprisonment for two years, the appellants are sentenced to undergo imprisonment for the period they have already undergone and they are further directed to pay fine of Rs.6,000/- each for the offence punishable under Section 325 of IPC. In default of payment of fine, the appellants are sentenced to undergo imprisonment for two months each. Out of the total fine amount of Rs.72,000/-, an amount of Rs.9,000/- each shall be paid to the injured witnesses i.e., PWs.4 and 7 to 9. The appellants are therefore directed to pay the fine amount within one month from the date of receipt of copy of this judgment. The judgment of conviction and order of sentence passed against the accused/appellants under Sections 147 and 148 of IPC stands confirmed. 17
Accordingly, the appeal is disposed of. The judgment of conviction recorded by the III Addl. Sessions Judge, Gulbraga under Sections 147, 148 and 325 read with 149 of IPC is hereby confirmed, modifying the sentence of imprisonment for the offence punishable under Section 325 of IPC as stated above.
The office is directed to send the records to the trial Court, forthwith.
Sd/-
JUDGE LG