Karnataka High Court
Basavaraj Channappa Neeralkeri vs State Of Karnataka Police ... on 13 February, 2020
Equivalent citations: AIRONLINE 2020 KAR 1846, 2021 (1) AKR 13
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13 T H DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
CRIMINAL APPEAL NO.2689 OF 2011
BETWEEN :
1. BASAVARAJ CHANNAPPA NEERALKERI
AGE: 33 YEARS, OCC: AGRICULTURE,
2. AMARESH CHANNAPPA NEERALKERI,
AGE: 29 YEARS, OCC: DRIVER.
BOTH R/O CHAMLAPUR, TQ: HUNGUND,
DIST: BAGALKOT.
... APPELLANTS
(BY SRI N.L.BATAKURKI, ADVOCATE)
AND :
STATE OF KARNATAKA
POLICE SUB-INSPECTOR,
ILKAL POLICE STATION,
REP. BY S.P.P.,
HIGH COURT BUILDING, DHARWAD.
... RESPONDENT
(BY SRI V.M.BANAKAR, ADDL.S.P.P.)
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THIS CRIMINAL APPEAL IS FI LED U/S 374(2)
OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT
AND SENTENCE DATED 04.05.2011 AND 13.05.2011
RESPECTIVELY PASSED BY THE SESSIONS JUDGE,
BAGALKOT, IN S.C.NO.44/2010 AND ACQUIT THE
APPELLANTS FOR THE ALLEGED OFFENCES.
THIS CRIMINAL APPEAL COMING ON FOR FINAL
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The appellants who are arraigned as accused Nos.1 and 2 in S.C.No.44/2010 on the file of the Sessions Judge, Bagalkot, have preferred this appeal against the judgment of conviction and sentence passed in S.C.No.44/ 2010 dated 04.05.2011 and 13.05.2011 respectively on various grounds. The Trial Court in fact convicted the appellants for the offence under Section 323 of Indian Penal Code ("IPC" for short) and sentenced them to undergo simple imprisonment for six months and to pay a fine of Rs.500/-, further :3: sentenced to undergo four years simple imprisonment and to pay a fine of Rs.2,000/- for the offence under Section 326 of IPC, further sentenced to undergo nine months simple imprisonment for the offence under Section 355 of IPC and to pay a fine of Rs.900/- with default sentence of 30 days and also sentenced to undergo five years simple imprisonment and to pay a fine of Rs.3,000/- with default sentence for the offence under Section 307 of IPC and also sentenced to undergo simple imprisonment for nine months for the offence under Section 504 of IPC and to pay a fine of Rs.900/- with default sentence.
2. The brief facts of the case on hand are that, the accused persons as well as PWs1 to 4 are the residents of Chamlapur village in :4: Hungund Taluk, they are all known to each other and they are having house and landed properties in the said village. It is alleged that, on 25.12.2009 in the morning at about 8.00 a.m. in front of the Bus-Stand in Chamlapur village, the complainant-PW1-Sharanamma and her husband PW2-Doddabasayya have enquired accused Nos.1 and 2 with reference to accused No.1 beating PW3-Santosh. In that context, it is alleged that accused Nos.1 and 2 have picked up quarrel with PWs.1 to 3 and they have assaulted PW1 i.e. particularly accused No.1 has attempted to throttle the neck of PW2-Doddabasayya and also bit the index finger of PW2 and virtually cut the tip portion of the right index finger of PW2-Doddabasayya. :5:
3. It is also alleged that, accused No.2 has also assaulted with a chappal on the stomach and back of PW1-Sharanamma and also attempted to outrage her modesty in the public place and accused No.1 has also abused PWs1 to 3 with filthy language in order to provoke PWs1 to 3 to break the public peace and as such they have committed the offence under Sections 323, 326, 355, 307 and 504 read with Section 34 of IPC.
4. On the complaint lodged by PW1 making such allegations, the respondent-police have registered a case in Crime No.211/2009 for the above said offences and after thorough investigation, laid a charge sheet before the jurisdictional Court. As offence under Section 307 was invoked, the committal Court after :6: securing the presence of the accused, committed the case to the Court of Sessions. The Sessions Court after securing the presence of the accused persons framed charges for the above said offences and put the accused persons on trial.
5. In order to prove the guilt of the accused, the prosecution examined as many as eight witnesses PWs1 to 8 and got marked Exs.P1 to P6, P6(a) and 6(b) and during the course of cross-examination, Exs.D1 and D1(a) and D1(b) were also marked. Material Object one chappal was also marked. Accused No.3 also examined under Section 313 of Cr.P.C. The accused did not choose to lead to any oral or documentary evidence on their side. Therefore, after hearing both the sides and :7: appreciating the oral and documentary evidence on record, the Trial Court has convicted and sentenced the accused persons as noted supra.
6. The learned counsel for the appellants strenuously contended that, the Trial Court has not properly appreciated the oral and documentary evidence on record and erroneously convicted the accused persons for the above said offences. The Trial Court has not taken into consideration that it is a flimsy quarrel between the same villagers for flimsy reason, there was no preparation, premeditation or intention on the part of the accused persons to do any harm to the PWs1 and 2. It just happened in a spur of moment after verbal altercation between PWs1 to 3 and :8: accused Nos.1 and 2. In that context without foreseeing the consequences of their act, some incident had happened. It is further contended that, even accepting the entire evidence of the prosecution witnesses, there is no material to show the evidence attract the provision under Sections 307, 355 and 504 of IPC. The Trial Court has also not properly appreciated the surrounding circumstances, but erroneously sentenced the accused persons with harsh punishment. Therefore, the judgment of conviction and sentence is liable to be interfered by this Court.
7. Per contra, the learned Additional S.P.P. strenuously submitted that the accused persons particularly accused No.1 has very inhumanly bit the right index finger of PW2 and :9: caused a grievous injury and in fact without considering that PW1 is a woman, accused No.1 in a public place assaulted her with a chappal, which shows the intention to outrage the modesty of that lady. Accused No.1 has also attempted to squeeze the neck of PW2. Therefore, the offence under Sections 307 and 355 are also made out. The accused have also abused PWs1 to 3 with filthy language. Therefore, it also attracted Section 504 of IPC. The Trial Court in fact has appreciated the entire oral and documentary evidence on record and proportionately sentenced the accused for the above said offences. Hence, he contends that, there is no room for interference by this Court and pleaded for dismissal of the appeal.
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8. I have carefully re-evaluated the entire oral and documentary evidence on record.
9. PWs1 to 3 are the related witnesses. PW.1 is the complainant and wife of PW2. PW3 is the son of PWs1 and 2. PW4-Yamanamurthy is an independent witness who saw the incident and also scribe of Ex.P.1. PW5 is the pancha witness to the spot mahazar and seizure of a chappal MO.1. PW6 is the doctor who examined PW2 and gave certificate as per Ex.P.3. PW7 is the Investigating Officer who conducted the investigation and laid the charge sheet. PW8-a woman police constable, who assisted the investigation to PW7.
10. PWs1 to 4 in their examination-in- chief have categorically reiterated the : 11 : complaint averments and they specifically stated about the overt-acts of the accused Nos.1 and 2 and they have also stated that previously accused No.1 has actually assaulted PW3 and on the date of incident when the PWs1 to 3 have questioned the same, accused No.1 has tried to throttle the neck of PW2 and also bit the right index finger and cut the tip portion of the index finger of PW.2.
11. In that context, accused No.2 has assaulted PW.1 with a chappal on her stomach and back. It is alleged that accused No.1 has also abused PWs1 to 3 with filthy language. There is consistency in the evidence of these three witnesses which is also corroborated by the evidence of PW.4, who is an eyewitness, is : 12 : also supported and reiterated the above said incident.
12. During the course of cross-
examination, it is suggested to them that there was previous hatred and ill-will because of dispute pending between the parties. However, the said suggestions have been denied by PW.1 to 3. There is nothing worth to consider the cross-examination of these witnesses, except making such suggestions, the core of the prosecution case with regard to the overt-acts of the accused is not demolished.
13. The doctor PW.6 also corroborated the evidence of PWs1 to 3, wherein he has stated that he has treated PW.2 and examined his right index finger and found that there was a cut of the right index finger at tip portion : 13 : which virtually broken and remove the bone portion also. Therefore, he has issued certificate as per Ex.P.3 narrating that, such injury as grievous in nature. So far as assault by chappal to PW.1, except oral evidence, it is not supported by any medical evidence.
14. Looking to the above said facts and circumstances, the Court has to examine whether the above overt-acts of the accused attract the provision under Sections 307, 355 and 504 of IPC as urged by the leaned Additional State Public Prosecutor.
15. There are no visible injuries to the neck of PW.2. The doctor has also not given any opinion at-least scratch marks or finger prints on the neck of PW.2 except witnesses have only stated that accused No.1 has made : 14 : an attempt to throttle the neck of PW.2. But there is no consistent evidence that he actually squeezed the neck of PW.2 or he has made any attempt to squeeze the neck of PW.2. In the absence of any such material, visible injuries or finger prints on the neck or even any pain being complained to the doctor with regard to the squeezing of the neck by the accused mere touching or attempting to touch the neck of PW.2 by accused No.1, will not in any manner attract the provision under Section 307 of IPC. The intention must be gathered from the surrounding circumstances and the nature of injuries caused or the circumstances of the case. By considering the above said facts and circumstances, I am of the opinion that the offence under Section 307 of IPC is not attracted.
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16. Coming to Section 355 of IPC, Section 355 contemplates not only the criminal force or assault on a man/woman but it should be coupled with intent to outrage the modesty. This provision itself clearly discloses that the assault or using criminal force to any person intending to outrage or knowing it to be likely that he will thereby outrage the modesty of that person. Mere assault itself cannot be construed as an intention to outrage the modesty. If the other ingredient of the said provision except assault is absent, then the Court can construe that it is only an assault, if there are no other materials to show that he really intended to outrage the modesty of any person. Even PWs1 to 4 in their evidence never stated that the accused had done anything which amounts to intention to outrage so far as : 16 : the PW.1 is concerned. Therefore something is missing in this particular case apart from assault on the woman with a chappal. Noting more is forthcoming in order to establish the intention of the accused to attract Section 355 of IPC.
17. Further added to that, if he was assault with a chapel there must be some abrasion or contusion or she must have gone to the hospital and disclosed that, the said assault was made by accused No.2. In the absence of such materials, I can only hold that there was an assault by accused No.2 on PW.1 in order to cause simple hurt and evidence is inadequate so far as to draw an inference that the said act was with an intention to outrage the modesty of the said lady. Therefore, the : 17 : offence under Section 355 of IPC is also hardly made out by the prosecution.
18. Of-course, on reading the evidence of PWs1 to 4, they have only stated that, accused No.1 has abused PWs1 to 3 with filthy language. But what type of filthy language they have used specifically not stated in their evidence except stating that they have abused with a word "Bhosudi Magane" (Bhastard). The using of the word "Bhastard" particularly in the vernacular language as noted above, in the particular area where the accused and injured persons have been residing has to be tested whether the said word amounts to an abusive word. Therefore, there should be some evidence before the Court that using of that particular word definitely provoke a person to : 18 : breach public peace, if such evidence is not available it cannot be said that the prosecution has proved the said offence beyond reasonable doubt. Therefore, in my opinion the offence under Section 504 is also not made out.
19. Of-course all the witnesses have consistently stated about the biting of the index finder of PW.2 by accused No.1. The doctor has also fully supported the case and he has stated that X-ray has been taken and he has seen complete cutting of the bone of the top portion of right index finger. The learned counsel contended that X-ray report has not been produced before the Court to support the said contention, the doctor has stated that the bone has been cut and the index finger has been shortened, in fact at the time of evidence : 19 : the learned Sessions Judge has also observed the amputation of the right index finger. Therefore, the non production of X-ray report will not in any manner be little the case of the prosecution. Therefore, ample evidence is available on record to show that accused No.1 has actually bit the right index finger of PW.2 and consequently there was amputation of a portion of the right index finger. Therefore, the accused by using his teeth as a weapon caused grievous injury to PW.2. In my opinion, the teeth can be used as a weapon for the purpose of causing grievous injury. Therefore, it very well attracts Section 326 of IPC. Though the learned counsel tried to persuade this Court that the weapon must be referable to a weapon which can cause the death of a person, it cannot be said that by means of using the : 20 : teeth, a man cannot commit the murder of any person, for example, if the person bites the neck of a person with his teeth, if it causes grievous injury cuts the hyoid bone that may be sufficient to cause the death of a person. Therefore, it cannot be unequivocally stated that the teeth cannot be used as a weapon. Under the above said circumstances, I am of the opinion that the prosecution has made out a case to convict the accused for the offence under section 326 of IPC and accused No.2 is liable to be convicted for the offence under section 323 of IPC and both the accused are entitled to be acquitted for the offence under Sections 307, 355 and 504 of IPC.
20. Now coming to the sentence portion, the trial Court has not even made any attempt : 21 : to consider any mitigating circumstances in this particular case before sentencing the accused with such harsh punishment. Admittedly both the accused and the injured persons belonging to same village, they are agriculturists and they are village peasants. They are eking their livelihood by means of doing coolie and agricultural work. There is absolutely no previous antecedent bad character alleged against the accused persons. Except the said situation or incident, no other incident had happened between the accused and the injured persons. It is an isolated circumstances in their life which really happened after due altercation between the two groups i.e., accused Nos.1 and 2 on one side and PWs.1 to 3 on the other. The accused persons are also aged about 32 and 28 years : 22 : respectively, they are having family and they have to maintain their family. These are all important aspects have not been taken into consideration while sentencing the accused. Apart from that, the above incident happened in the year 2009 and since then they had hanging sward on the heads. Therefore, all these years, they must have definitely suffered mental agony for a period of more than 11 years. Added to the above, considering the incarceration of accused No.1 and 2 during the course of investigation and after conviction, it is seen after calculation that accused No.1 has already been in jail for a period of 81 days and accused No.2 for a period 201 days. Therefore, I am of the opinion that, the above said facts and circumstances have to be taken into consideration and normally the Court should : 23 : allow the parties to resume their normal relationship with each other in order to pull on their life in future. They all belong to the same village, they have to be harmonious in their future life. Therefore, under the above said circumstances, I am of the opinion by means of imposing more fine, the custodial period of imprisonment already undergone by them, can be treated as sentence upon them. With these observations, the following order is passed.
ORDER
i. The appeal is partly allowed.
Consequently, the judgment of
conviction and sentence passed by the learned Sessions Judge, Bagalkot, dated 04.05.2011 and 13.05.2011 in S.C.No.44/2010 for : 24 : the offences punishable under Sections 355, 307 and 504 of IPC are hereby set aside.
ii. The appellants/accused Nos.1 & 2
are hereby acquitted of the charges levelled against them for the above said offences.
However, the judgment of
conviction and sentence passed
for the offence punishable under Sections 323 and 326 of IPC is maintained.
iii. The accused Nos.1 and 2 are
hereby sentenced to under go two
months imprisonment for the
offence punishable under Section 323 read with Section 34 of IPC : 25 : and to pay a fine of Rs.2,000/-
each in default to undergo simple imprisonment for a period of one month.
iv. The Accused are also sentenced to undergo simple imprisonment for a period of two moths for the offence punishable under Section 326 read with section 34 of IPC and to pay a fine of Rs.10,000/-
each in default to under go further imprisonment for a period of two months.
v. The accused are entitled for set off under Section 428 of Criminal Procedure Code. The sentence of : 26 : imprisonment shall only run concurrently.
vi. The sentence of fine is compulsory at this stage and shall run consecutively, after depositing of the fine amount by the accused persons, out of the fine amount Rs.10,000/- each shall be paid as compensation to PWs.1 and 2.
vii. Rest of the amount of Rs.4,000/-
shall be recovered as fine.
SD/-
JUDGE CLK/EM