Karnataka High Court
Jayappa S/O Bailappa Kudagi vs The State Of Karnataka on 29 November, 2022
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CRL.RP No. 100275 of 2015
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 29TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRL.R.P.NO.100275/2015
BETWEEN:
JAYAPPA
S/O. BAILAPPA KUDAGI
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O. TEGGI, TQ: BILAGI,
DIST: BAGALKOT
...PETITIONER
(BY SRI. N.L.BATAKURKI, ADV.)
AND:
THE STATE OF KARNATAKA
BY ITS PSI BILAGI PS
REP. BY SPP HIGH COURT
BUILDING, DHARWAD.
...RESPONDENT
(BY SRI V.M.BANAKAR, ADDL. S.P.P.)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397(1) AND 401 OF CR.P.C. SEEKING TO SET ASIDE
THE JUDGMENT AND ORDER OF CONVICTION DATED 30.11.2015
PASSED BY THE II ADDL. DISTRICT AND SESSIONS JUDGE
BAGALKOT IN CRIMINAL APPEAL NO.49/2011 CONFIRMING THE
JUDGMENT PASSED BY THE JMFC BILAGI IN C.C.NO.257/2010
DATED 05.07.2011 SENTENCING THE PETITIONER FOR THE
OFFENCE PUNISHABLE UNDER SECTION 427 OF IPC PETITIONERS
Digitally signed
by ROHAN
SHALL UNDERGO SIMPLE IMPRISONMENT FOR A PERIOD OF SIX
ROHAN HADIMANI T
HADIMANI Date:
2022.12.16
MONTHS FOR THE OFFENCE PUNISHALBE UNDER SECTION 504
T 11:39:50
+0530 OF IPC, ETC.
THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 31.10.2022 COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE
THE FOLLOWING:
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CRL.RP No. 100275 of 2015
ORDER
1. This criminal revision petition is filed under Section 397 r/w Section 401 of Cr.P.C. seeking to set aside the judgment dated 30.11.2015 passed by II Addl. District and Sessions Judge, Bagalkot in Crl.A.No.49/2011 dated 30.11.2015 confirming the judgment dated 05.07.2011 passed by the JMFC, Bilagi, in C.C.No.257/2010 sentencing the petitioner for the offence punishable under Sections 323, 353, 427, 504 of IPC and Section 55 of Karnataka Irrigation Act, 1965 and Section 2(a) of Karnataka Prevention of Destruction and Loss of Property Act, 1981.
2. The parties are referred to as per their ranks before the trial court.
3. Brief facts of the case are that:
3.1 On 06.03.2010 at about 13.00 hours the accused at water canal of Girigav village the accused removed the stone of water canal and -3- CRL.RP No. 100275 of 2015 thereby supplied water illegally to his field through GLBC canal and when the complainant asked of such destruction by removing the said stone the accused resisting the same pushed the complainant and thereby obstructed in discharging the public duty and also abused him in filthy language for questioning the said illegal act of the accused. The accused also snatched the mobile phone of the complainant in furtherance of his obstruction in discharging the public duty by the complainant. Thus, the accused has committed the offence punishable under Sections 323, 353, 427, 504 of IPC and Section 55 of Karnataka Irrigation Act, 1965 and Section 2(a) of Karnataka Prevention of Destruction and Loss of Property Act, 1981.
4. After investigation, the Investigating Officer has submitted a charge sheet against the accused for the alleged commission of offence. After taking -4- CRL.RP No. 100275 of 2015 cognizance, the case was registered in C.C.No.257/2010 on the file of JMFC, Bilagi.
5. In pursuance of summons, accused appeared before the Court. On hearing the charges, trial court has framed charges for the alleged commission of offences. The same was read over and explained to the accused in the language known to him. The accused having understood the same, has pleaded not guilty and claimed to be tried.
6. To prove the case of prosecution, in all 6 witnesses have been examined as P.W.1 to P.W.6. and 4 documents were got marked as Exs.P-1 to P-4 and 1 material object was marked as M.O.1. On closure of prosecution side evidence, the statement under Section 313 of Cr.P.C. was recorded as to the incriminating evidence appeared against the accused.
Accused has totally denied the evidence of prosecution witnesses, but he has not chosen to lead any defence evidence on his behalf, but he has -5- CRL.RP No. 100275 of 2015 submitted in his statement that Sy.No.173 is bagayath land and there is sufficient irrigation facility to this land. Therefore, there is no need to take the water illegally from the canal. It has also produced pahani extract pertaining to RS No.173 of Theggi Village.
7. On hearing the arguments, the trial court has passed the impugned judgment convicting the accused for the commission of offence punishable under Section 353, 504 and 427 of IPC and Section 55 of Karnataka Irrigation Act, 1965 and Section 2(a) of Karnataka Prevention of Destruction and Loss of Property Act, 1981. Being aggrieved by this judgment of conviction and order of sentence passed by the trial court, accused has preferred an appeal before the II Addl. District and Sessions Judge, Bagalkot, in Crl.A.No.49/2011. The said appeal came to be dismissed on 30.11.2015. Being aggrieved by the -6- CRL.RP No. 100275 of 2015 impugned judgment, the accused has filed this revision petition.
8. Learned counsel appearing on behalf of the accused has submitted his argument that, in respect of offence punishable under Section 2(a) of the Karnataka Prevention of Distraction & Loss of Property Act, 1981 has not been proved by the prosecution for the reasons that, in view of Rule 3 of the Karnataka Prevention of Destruction and Loss of Property Rules 1983, the State Government has to appoint an officer not to below the rank of District Magistrate or the Commissioner of Police in the city of Bengaluru or any other executive magistrate for the purpose of making an enquiry referred to in Sub- Section (1) of Section 4. In this case, the District Magistrate or any other Executive Magistrate has not made any enquiry. Hence, the prosecution has failed to prove that the accused has committed an offence punishable under Section 2(a) of the Karnataka -7- CRL.RP No. 100275 of 2015 Prevention of Distraction & Loss of Property Act, 1981.
9. Further he has submitted that, the Irrigation Officer defined under Section 2G of the Karnataka Irrigation Act, 1965 has not submitted any report as to the damages caused to the canal wall and in view of Section 12 of the Karnataka Irrigation Act, 1965 the Irrigation Officer may, after the publication of the notification under Section 11, issue an order to any person causing or having control over any such obstruction to remove or modify the same within such period as may be specified in such order. But in this cause the Irrigation Officer has not issued any notice or notification as to the obstruction said to have been caused by the accused. Hence, the offence under Section 55 of the Karnataka Irrigation Act, 1965 has not applicable to the case on hand. Accordingly, the prosecution has failed to prove the guilt of the accused for the commission of offence -8- CRL.RP No. 100275 of 2015 punishable under Section 55 of the Karnataka Irrigation Act, 1965.
10. Further he has submitted his argument with regard to the other offences punishable under Sections 353, 504 and 427 of IPC is concerned, none of the witnesses have witnessed that who has damaged to the canal wall and who has removed the stone. It is admitted by the prosecution witnesses that the land of the accused is situated after three lands of other land owners from the place of canal and that there was no necessity to the accused for getting the water from the canal. He has got sufficient source of water to irrigate his land bearing Sy.No.173 of Theggi village. To substantiate the same, the accused has clearly stated in his statement recorded under Section 313 of Cr.P.C., that He has got sufficient water to his land, there was no need to get water from the canal. To substantiate the same, he has also produced pahani extract of his land bearing -9- CRL.RP No. 100275 of 2015 Sy.No.173 of Theggi village. Absolutely there is no evidence to show that the accused has damaged CD revertment wall of the canal as alleged by the prosecution. Except evidence of official witnesses, none of the witnesses have examined by the prosecution to prove that the accused has prevented the public servants from discharging their official duties. He further submits that, both the Courts have not properly appreciated the evidence on record and convicted the accused for the offences, which is not sustainable in law.
11. Learned counsel for the accused has further submitted that, the Trial Court has observed in its judgment that previously the accused has convicted in C.C.No.321/2007 dated 24.12.2010. Hence, the benefit of Probation of Offender Act is not extended. But the accused Sri Jayendra Bailappa Kudagi has acquitted in Crl.A.No.1/2011 dated 06.10.2015. The Certified copy of the judgment passed in
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CRL.RP No. 100275 of 2015 C.C.No.321/2007 dated 24.12.2010 on the file of JMFC, Bilagi and the certified copy of the judgment passed by the II Additional District & Sessions Judge, Bagalkot in Crl.A.No.1/2011 dated 06.10.2015 also produced and submitted his argument that, the accused has not convicted in any offences.
12. Alternatively, it is submitted that, if this Court has confirmed the conviction for the offence punishable under Sections 353 & 504 of IPC is concerned, the accused may be released on Probation of Offenders Act as the accused has not been convicted in any offences prior to this incident. He further submits that, now the age of the accused is 58 years, he is having wife and children and he is the only person to look after their family members. On all these grounds, sought to allow the criminal revision petition.
13. Learned counsel has further submitted that since the accused has been acquitted by the appellate court in
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CRL.RP No. 100275 of 2015 previous offence, he is entitled to be released on the provisions of Probation of Offenders Act, 1958. To substantiate this, he has relied on the decision of Hon'ble Apex Court in the case of B.S.NARAYANAN vs. STATE OF A.P. reported in 1987 SCC (Cri) 791, A.GNANASIKHAMONY vs PALUKAL PANCHAYAT reported in AIR 1970 Madras 360 and CHANDRESHWAR SHARMA vs. STATE OF BIHAR reported in (2000) 9 SCC 245.
14. As against this, learned Additional State Public Prosecutor has fairly submitted his argument that, the designated officer under the Karnataka Prevention of Distraction & Loss of Property Rules has not made any enquiry as to the damages caused to the public property. Therefore, Section 2(a) of the Karnataka Prevention of Distraction & Loss of Property Act, 1981 is not applicable to the case on hand. Further it is submitted that with regard to the other offences are concerned, trial court has properly
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CRL.RP No. 100275 of 2015 appreciated the evidence on record and convicted the accused. For the offences punishable under Sections 323, 353, 427, 504 IPC and Section 55 of Karnataka Irrigation Act, 1965. On all these grounds, sought for dismissal of this revision petition in respect of above said offences.
15. Trial court has convicted the accused for the commission of offences punishable under Section 2(a) of Karnataka Prevention of Destruction and Loss of Property Act, 1981. In view of Rule 3 of Karnataka Prevention of Destruction and Loss of Property Rules, 1983. The State Government has to appoint officer not below the rank of a District Magistrate or the Commissioner of Police in the City of Bangalore or any other executive Magistrate for the purpose of making an enquiry referred to in sub- section (1) of Section 4. In this case, the District Magistrate or any other executive Magistrate has not made any enquiry. Accordingly, the prosecution has
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CRL.RP No. 100275 of 2015 not complied mandatory provisions of Rule 3 of the Karnataka Prevention of Destruction and Loss of Property Rules, 1983, before initiating the proceedings against learned counsel under Section 2(a) of the Karnataka Prevention of Destruction and Loss of Property Act, 1981. Learned Addl. SPP has fairly submitted in this regard that prosecution has not complied mandatory provisions of the Karnataka Prevention of Destruction and Loss of Property Act, 1981 and Karnataka Prevention of Destruction and Loss of Property Rules, 1981.
16. Both the Courts below have not observed above said provisions and passed the impugned judgments and convicted accused for the offences punishable under Section 2(a) of Karnataka Prevention of Destruction and Loss of Property Act, 1981, which is not sustainable under law. Accordingly, the accused is entitled for acquittal for the commission of offences punishable under Section 2(a) of the Act.
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CRL.RP No. 100275 of 2015
17. With regard to the offence punishable under Section 55 of Karnataka Irrigation Act, 1965, is concerned, it is the case of the prosecution that at the relevant point of date, place and time, the accused with an intention to cause loss of damage to the property, has removed the stones from the revertment wall of the canal and thereby obstructed to supply of water for irrigation work. Thereby committed the offence punishable under Section 55 of Karnataka Irrigation Act, 1965. To substantiate this accusation, the prosecution has produced the complaint - Ex.P-1 filed by the Assistant Executive Engineer, GLBC, Sub- Division 9, Yadahalli, who is examined before the Court as P.W.1. In the evidence he has deposed as to the contents of Ex.P-1. The stone which is said to have been removed by this accused is marked as MO-1.
18. During the course of cross examination, he has clearly admitted that he has not witnessed as to who
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CRL.RP No. 100275 of 2015 has removed the stone. P.W.3 - Shivanand Maruti Donagapur, Assistant Engineer, has admitted in his cross examination that stone was removed about 2 months back from the date of alleged incident. In Ex.P-1 also the complainant has not disclosed on which date the MO-1 - stone was removed from the canal and there are no eye witnesses in this regard.
19. Apart from this, during the course of cross examination of P.W.1, he has admitted that prior to this incident, canal and road work was done by their department, but the prosecution has not produced any documents in this regard. It is the duty of concerned department to maintain all the records as to the expenses incurred towards repair of canal, road, etc. If really the accused has committed the alleged act, P.W.1 would have produced the documents maintained by him as to the expenses incurred towards the repair of this canal and road, but he has not done so. The prosecution has not
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CRL.RP No. 100275 of 2015 offered any explanation as to the non production of the relevant records maintained by the irrigation department as to the construction revertment of the wall in the canal and also repair work.
20. It is admitted by the prosecution witnesses that the land of accused is abutting to the canal and his land is situated after 4 to 5 lands, which belongs to others. The Investigating Officer has not made any investigation as to who has removed this MO-1 stone from the canal wall. Without any proper investigation, only on the basis of complaint filed by P.W.1, the Investigating Officer has mechanically registered the case against the accused in the commission of offence punishable under Section 55 of the Karnataka Irrigation Act, 1965 and Section 427 of IPC, which is not sustainable under law.
21. With regard to offence punishable under Section 353 and 504 of IPC are concerned, P.W.1, P.W.3 and P.W.4 have unanimously supported the case of the
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CRL.RP No. 100275 of 2015 prosecution tooth and nail and nothing untrustworthy was elicited by their mouth so as to disbelieve them or doubt their credit worthiness with regard to the offence punishable under Section 353 and 504 of IPC. The accused has also failed to prove that there was previous enmity between the accused and above prosecution witnesses. Considering the evidence placed by the prosecution, Courts below have appreciated the evidence on record in a perspective manner and convicted the accused for the offence punishable under Section 353 of IPC and 504 of IPC. I do not find any illegality and infirmity in the impugned judgments passed in respect of offence punishable under Sections 353 and 504 of IPC.
22. Now the question that arises for consideration is:
"Whether the accused are entitled to the benefit under the provisions of the Probation of Offenders Act, 1958 or not?"
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CRL.RP No. 100275 of 2015
23. The trial court has observed in the order of sentence that accused was previously convicted in C.C.No.321/2007 on 24.12.2010. On this ground, trial court has declined to extend the benefit of provisions of Probation of Offenders Act, 1958, but in this regard, the learned counsel appearing on behalf of revision petitioner has produced the certified copy of judgment passed in C.C.No.321/2007 dated 24.12.2010 and also the certified copy of judgment passed in Crl.A.No.1/2021 dated 06.10.2015 passed by the II Addl. District and Sessions Judge, Bagalkot.
24. A perusal of materials placed before this Court, it is crystal clear that age of the accused was 45 years at the time of commission of offences and now his age is 57 years and he is an agriculturist by profession. Except this case, accused has not been previously convicted in any other case and the learned II Addl. District and Sessions Judge has already acquitted the accused for the offence punishable under Sections
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CRL.RP No. 100275 of 2015 353 and 323 of IPC in Crl.A.No.1/2011 dated 06.10.2015, which was preferred against the judgment passed by the JMFC, Bilagi, in C.C.No.321/2007 dated 24.12.2010.
25. The alleged commission of offence punishable under Section 353 of IPC is concerned, it is punishable with imprisonment of 2 years, or with fine, or with both. The offence punishable under 504 of IPC is punishable with 2 years imprisonment, or with fine, or with both. The trial court has convicted the accused for the offence punishable under Section 504 of IPC and sentenced to pay a fine of Rs.500/-, which is already remitted by the accused. With regard to offence punishable under Section 353 of IPC is concerned, the trial court has convicted the accused and sentenced to undergo simple imprisonment for a term of 1 year.
26. Keeping in mind the nature and gravity of offence, antecedents of accused prior to this alleged incident
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CRL.RP No. 100275 of 2015 and also aforesaid decisions of Hon'ble Apex Court, I am of the considered opinion that it is just and appropriate to release the accused under the provisions of Section 3 of the Probation of Offenders Act, 1958, on due admonition. Accordingly, I proceed to pass the following:
ORDER (1) Revision petition is partly allowed. (2) The accused is acquitted for the offences punishable under Section 427 of IPC, Section 55 of Karnataka Irrigation Act, 1965 and Section 2(a) of the Karnataka Prevention of Destruction and Loss of Property Act, 1981.
(3) With regard to offence punishable under Section 353 of IPC is concerned, the impugned judgment passed by the Courts below are modified and accused
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CRL.RP No. 100275 of 2015
is ordered to be released under Section 3 of the Probation of Offenders Act, 1958, on due admonition.
(4) Fine amount deposited by the accused,
if any, shall be remitted to the
Government.
(5) Registry is directed to transmit the
records to the Courts below along with the copy of this order.
Sd/-
JUDGE DR List No.: 1 Sl No.: 13