Karnataka High Court
Manoj vs The State Of Karnataka on 11 July, 2022
Author: V.Srishananda
Bench: V.Srishananda
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CRL.A No. 2620 of 2013
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 11TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
CRIMINAL APPEAL NO.2620 OF 2013 (C)
BETWEEN:
MANOJ
S/O MAHENDRA PAWAR,
AGE: 29 YEARS, OCC: DRIVER,
R/O: KINJARI KILLA,
DISTRICT SUNDARGAD, ORISSA STATE,
NOW AT SHIVAJI NAGAR
JOPADATTI, PUNE.
...APPELLANT
(BY SRI G.A.HOLEYANNAVAR, ADV.)
AND:
THE STATE OF KARNATAKA
R/P BY SSP, CIRCUIT BENCH
(P.I. OLD HUBLI POLICE STATION HUBLI)
...RESPONDENT
(BY SRI PRAVEEN UPPAR, HCGP)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.
Digitally signed by PRAYING TO SET ASIDE THE CONVICTION AND SENTENCE ORDER
ANNAPURNA DATED 05.01.2013 AND SENTENCE DATED 04.02.2013 PASSED BY
CHINNAPPA
DANDAGAL THE Presiding Officer, FAST TRACK COURT-II, DHARWAD, SITTING
Location: HIGH COURT
OF KARNATAKA AT HUBLI, IN S.C.NO.91/2012 FOR THE OFFENCES punishable under
DHARWAD Sections 353 & 307 OF IPC AND ACQUIT THE APPELLANT/ACCUSED
FOR THE CHARGES FRAMED AGAINST HIM IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY.
THE COURT DELIVERED THE FOLLOWING.
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CRL.A No. 2620 of 2013
JUDGMENT
Heard learned counsel for the accused-appellant and learned High Court Government Pleader for respondent- State.
2. Appeal by the convicted accused in SC.No.91/2012 on the File of Fast Track Court-II, Dharwad, sitting at Hubballi dated 05.01.2013.
3. It is alleged by the prosecution that on 11.03.2012, accused-appellant committed theft of a tipper lorry bearing registration No.MH.12/HD-90, which was parked near Mayur Hotel, Wakadnagar, Pune and proceedings towards Dharwad on Hubballi-Dharwad National Highway. On receipt of the information about the said lorry being moving on the road, the Police personnel tried to intercept the said lorry at about 3.40 a.m. on 13.03.2012 near Narendra Toll Plaza, at that juncture, the accused-appellant did not stop the lorry and dashed the same against the stone platform of the said toll plaza and other police officials also tried to stop the lorry and at that -3- CRL.A No. 2620 of 2013 juncture, there was an altercation and the information was given to the Town Police Station, Dharwad.
4. However, despite giving signals to stop the lorry by the police officials, the accused-appellant did not stop the lorry and barricade put by the police officers were also damaged and he tried to move the lorry towards Karwar road. Near Karwar toll plaza, Basavaraj and Umesh boarded the lorry from cleaner side door and tried to stop the lorry to overpower the appellant. At that juncture, the accused-appellant assaulted Basavaraj by means of an iron rod and started moving the lorry in a zigzag manner so as to make Basavaraj to fall down from the lorry and in the process Basavaraj fell down from the lorry. At that juncture, left with no alternative, the police personnel had to open fire and fired in two rounds of bullets. In such process one bullet damaged the mirror of the lorry and another bullet touched the right shoulder of the appellant and lorry was stopped and he was shifted to the hospital. -4- CRL.A No. 2620 of 2013
5. On receipt of complaint, the police registered a case against the accused for the offences punishable under Sections 353 and 307 of IPC. Accused was treated in the hospital. Formal arrest was made and he was produced before the Court and he was sent to judicial custody.
6. Thereafter investigation was conducted and charges were framed for the offences punishable under Sections 353 and 307 of IPC.
7. Accused pleaded not guilty and trial was held.
8. In order to prove the case of the prosecution, in all 22 witnesses were examined as PWs.1 to 22 and 17 documents were relied on by the prosecution, which were exhibited and marked as Exs.P.1 to P.17 besides being marking 11 material objects as MO.1 to MO.11.
9. On conclusion of the prosecution evidence, the accused statement as contemplated under Section 313 of Cr.P.C. was recorded, wherein the accused denied all the -5- CRL.A No. 2620 of 2013 incriminatory circumstances. However, accused did not offer any explanation in writing as is contemplated under Section 313(5) of Cr.P.C.
10. On cumulative consideration of oral and documentary evidence on record, the learned Sessions Judge was of the considered opinion that the prosecution has successfully established all ingredients to attract the offences under Sections 353 and 307 of IPC and thus convicted the accused for the aforesaid offences and sentenced him as under:
"Accused is sentenced to undergo R.I. for four years for the offence punishable under Section 307, I.P.C. and also sentenced to pay a fine of Rs.3000-00 (Three thousand rupees), in default, R.I. for three months. Accused is further sentenced to undergo R.I. for one year for the offence punishable under Section 353 of IPC. Both sentence shall run concurrently."
11. Being aggrieved by the same, the accused- appellant is before this Court in this appeal raising following grounds.
-6-CRL.A No. 2620 of 2013 The order of conviction and sentence passed by the court below are contrary to law, facts and equities and evidence on record probabilities of the case and deserves to be set aside.
That the learned presiding officer of the Fast Track court No II, Hubli has committed a serious error in passing the order to found guilty of the appellant on the prosecution evidence which is highly interested, contradictory and unreliable and artificial.
The prosecution is suppressing the material evidence and has not come with true version of the incident.
The lower court has committed a serious error in holding that the prosecution has proved its case beyond all reasonable doubt.
The lower court would have disbelieved the interested witnesses who are the police officers. When there is no independent corroboration to corroborate the evidence of the Interested witness. The evidence of highly interested and intentionally deposed falsely deposed before the lower court dramatically and artificially. The lower court would have disbelieved the evidence of prosecution witness.
-7-CRL.A No. 2620 of 2013 The act of the police is very merciless and when the complainant could not succeed to stop the vehicle, what is necessary to fire with riffle two rounds. And the complaint would have hit and fired the tyre, what is the necessary to intend to take the life of the citizen. The act of the complainant and the police is very dangerous and it is very highly dramatic and their evidence cannot believe and their evidence shall be brushed aside and the accused has to acquitted.
The bullet injury sustained by the accused/appellant is very serious in nature and police would not have fired the riffle towards the accused/appellant.
The Doctor P.W 15 examined the Basavaraj kadakol found that abrasion injury on the left elbow and both heels and opined that there is no fracture injuries sustained by the police constable and the injuries on P.W 15 is simple in nature.
The bullet injury sustained by the accused/appellant is puncuture injuries and he is admitted on 13-3 2012 to 17-4-2012 and the wound certificate clearly shows that the injuries are dangerous in nature.
There is no evidence on record, what is the reason to chase the vehicle is not been proved by -8- CRL.A No. 2620 of 2013 the prosecution and the motive is silent and it is alleged in the evidence of the police officers that they have chassed the accused vehicle and what reason they have chased the vehicle is not been stated in any of the witnesses.
The lower court unnecessarily interpret the section 307 and 353 of I.P.C. There was no intention to commit murder of the any of the police officials and it is silent in the record. The prosecution has not explained under what circumstance the complainant fired and what is the intention of the complainant. for firing. The complainant has not fired below the waist of the accused and it is directly the aim of cheast and shoulder which is vital part and the accused would have died due to wrong act committed by the police.
The police have deposed against the accused/appellant as they wanted to escape from the mis-conduct of firing towards accused/appellant and in order to save themselves from the wrongful act the police have deposed against the accused/appellant which is highly exaggerative and unbelievable. The lower court has wrongly come to the conclusion that the prosecution has proved its -9- CRL.A No. 2620 of 2013 case beyond all reasonable doubt. And the lower court would have given benefit of doubt and would have acquitted the above appellant charge levied against the accused/appellant. The sentence imposed on the appellant is to harsh and disapproprate.
12. Reiterating the above grounds, Sri Holeyannavar, learned counsel for the appellant vehemently contended that there was no intention to take away the life of PW.20 or any other police officials in the incident and it has all occurred in the spur of moment and therefore having regard to the nature of the injuries sustained by PW.20 vide Ex.P.13 wound certificate, wherein the injury sustained by him is only simple in nature, the Trial Court ought not to have convicted the accused for the offence punishable under Section 307 of IPC.
13. He also pointed out that in the spur of moment, when the police tried to stop the vehicle, on account of human error, the lorry has moved in a zigzag manner and
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CRL.A No. 2620 of 2013 therefore, no intention was there on the part of the accused-appellant to cause hindrance to discharge of public work by the public servants and therefore no ingredients are available on record to attract the offence punishable under Section 353 of IPC and therefore sought for allowing the appeal in toto.
14. Alternatively, he contended that the accused being the lorry driver, and the incident had occurred about a decade earlier. Now that the accused is eking out his livelihood in a legal manner and having family to maintain, this Court may consider in granting the benefit of probation by awarding reasonable fine and allow the appeal to that extent.
15. Per contra, learned High Court Government Pleader opposes the appeal grounds in toto by contending that the lorry was thieved by the appellant, which was parked in-front of Mayur Hotel, Wakadnagar, Pune and was moving the said tipper lorry towards Dharwad. On definite information in the early hours on 13.03.2012 at
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CRL.A No. 2620 of 2013 about 3.40 a.m. near Narendra toll plaza, there was barricade put up by the police and tried to intercept the lorry, but high handedly the appellant has damaged the platform near the toll plaza and also damaged the barricade and drove the lorry towards Karwar toll plaza and in the process, one of the police personnel namely Basavaraj (PW.20) had to board the lorry from the cleaner side and tried to stop the lorry. At that juncture the appellant driven the lorry in a zigzag manner to see that PW.20 fall down from the lorry and he was successful in doing so and later on police had to open the fire to take control of the situation and when these aspects of the matter viewed cumulatively, all ingredients to attract the offences under Sections 353 and 307 of IPC are made out, which has been rightly appreciated by the learned Trial Judge and therefore, sought for dismissal of the appeal in toto.
16. In view of the rival contentions of the parties, the following points would arise for consideration.
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CRL.A No. 2620 of 2013
1. Whether the prosecution is successful in establishing all the ingredients to attract the offences alleged under Sections 353 and 307 of IPC?
2. Whether the impugned judgment is suffering from legal infirmity and perversity and thus calls for interference by this Court?
3. What order?
17. Regarding Point No.1 & 2 :- In order to prove the case of the prosecution, the prosecution in all examined PWs.1 to 22. Seizure of tipper lorry is established by cogent and convincing evidence on record so also prosecution is successful in establishing that the thieved tipper lorry being driven by the accused on the date of incident is successfully proved by the prosecution by examining the prosecution witnesses.
18. Sri T.S.Sulpi, Police Inspector and the injured police constable Basavaraj examined as PW.22 and PW.20 respectively are the star witnesses to the prosecution to establish these aspects of the matter.
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CRL.A No. 2620 of 2013
19. Therefore deposed about the incident in the categorical manner. In their crass-examination no useful material is elicited by the accused to disbelieve the incident. Ultimately on opening the fire the situation was taken to control and seized iron rod and one brass 303 empty coca. These factual aspects prove the case of the prosecution beyond doubt. PW.20 is injured eye witness and his evidence is natural and believable.
20. PW.15-Dr.Radha Mallikarjun Swami who examined both the accused and the injured police constable (PW.20) has furnished wound certificates of PW.20 and accused, which are marked at Ex.Ps.13 & 14 respectively.
21. Admittedly, accused has sustained bullet injuriy on the right shoulder as is depicted in Ex.P.14. These aspects of the matter make it crystal clear that the version of the prosecution that while trying to escape away from the clutches of the police and rigors of law, accused some how tried to force upon the police personnel, ultimately
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CRL.A No. 2620 of 2013 resulting in police group opening the fire from the rifle and seizure of empty brass 303 cartridge and 303 rifle and the opinion given by the doctor, that the injury sustained by the accused vide Ex.P.14 could be by firing such bullet and also marking of one damaged mirror as MO.11 fortifies the case of the prosecution and proves the same.
22. Defence of the accused is one of the total denial. Therefore, on the basis of oral testimony of PW.20 and documentary evidence placed by the prosecution viewed cumulatively, it is crystal clear that the accused has tried to escape from the clutches of police personnel after thieving the tipper lorry which was parked near Mayur Hotel, Wakadnagar, Pune and driving towards Dharwad and intercepted firstly on Narendra toll plaza and secondly near Karwar toll plaza resulting in the incident stands proved beyond all reasonable doubt.
23. However, having regard to the nature of injury sustained by PW.20 in Ex.P.13 it cannot be said that the accused had an intention to take away the life of
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CRL.A No. 2620 of 2013 Basavaraj (PW.20). In the process of moving away lorry to escape away from the clutches of police, accused has no doubt driven the lorry in a rash and negligent manner whereby PW.20 fell down from the lorry and sustained injury. Therefore, all ingredients to attract the offence under section 307 is not established by the prosecution by placing cogent and convincing evidence on record.
24. Having regard to the injury sustained by PW.20 as depicted in Ex.P.13, which are simple in nature, this Court is of the considered opinion that act attributed to the accused should be scaled down from Section 307 of IPC to Section 324 of IPC.
25. Sofar as the charge under Section 353 of IPC is concerned, admittedly accused by his act of driving away the lorry from Narendra toll plaza and subsequently Karwar toll plaza resulting in firing of the police, is sufficient enough to attract all ingredients for the offence punishable under Section 353 of IPC and hence finding of the tiral court needs to be maintained. Accordingly, Point
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CRL.A No. 2620 of 2013 No.1 is answered partly in the affirmative and consequently Point No.2 also answered partly in the affirmative.
26. Regarding Point No.3:- In view of this Court finding on Point Nos.1 & 2 as above, following order is passed.
ORDER Appeal is allowed in part.
Accused-appellant is acquitted for the offences punishable under Section 307 of IPC instead convicted for the offence punishable under Section 324 of IPC and conviction of the accused for the offence punishable under Section 353 of IPC is maintained.
Having regard to the fact that the accused was in custody from 19.04.2012 to 26.04.2013. The period spent by the accused during the trial is treated as period of imprisonment for both the offences and order to pay fine of Rs.40,000/- (inclusive of the fine amount already
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CRL.A No. 2620 of 2013 imposed by the Trial Court) for the offences punishable under sections 353 and 324 of IPC. Failing which, he shall undergo simple imprisonment for a period of two years.
Out of the fine amount recovered, Rs.20,000/- is ordered to be paid as compensation to PW.20 by exercising power vested in this Court under Section 357 of Cr.P.C., under due identification.
Balance of Rs.20,000/- is ordered to be appropriated towards defraying expenses of the State.
Time is granted for the appellant to pay the balance fine amount till 20.08.2022.
Sd/-
JUDGE EM