Karnataka High Court

Yenka S/O Battya Marathi vs The State Of Karnataka on 6 January, 2021

Author: K.Natarajan

            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

        DATED THIS THE 6TH DAY OF JANUARY, 2021

                          BEFORE

          THE HON'BLE MR.JUSTICE K. NATARAJAN

       CRIMINAL REVISION PETITION NO.100178/2019

BETWEEN:

1.     YENKA S/O BATTYA MARATHI
       AGE: 35 YEARS, OCC: RYOT,
       R/O: KOLGERI IN UTTARAKOPPA,
       TALUK: BHATKAL

2.     GOIDA @ GOVINDA, S/O KRISHNA MARATHI
       AGE: 42 YEARS, OCC: RYOT,
       R/O: KOLGERI IN UTTARAKOPPA,
       TALUK: BHATKAL.
                                              ...PETITIONERS

(BY SRI. GANAPATI M. BHAT, ADVOCATE)

AND:

THE STATE OF KARNATAKA
BY ITS PSI OF MURDESHWAR POLICE,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT BENCH BUILDING, DHARWAD.

                                              ...RESPONDENT

(BY SRI. RAMESH B. CHIGARI, ADVOCATE)
                                         2




      This Criminal Revision Petition is filed u/s. 397 R/w. Section
401 of Cr.P.C. seeking to set aside the judgment and order of
conviction dated 30.04.2019 passed by the Court of the Principal
District and Sessions Judge, Uttara Kannada, in Crl.A.No.254/2007
and Judgment and Order dated 12.12.2007 passed by the Couurt of
the JMFC, Bhatkal in CC No.1027/2007, for the charges u/s. 323,
324, 355, 447 R/w. Section 34 of the IPC, insofar as petitioners
herein are concerned.


      This Petition coming on for admission through Physical
Hearing/Video Conferencing Hearing this day, the Court made the
following:


                                   ORDER

This revision petition has been filed by the

petitioners/accused Nos. 1 and 2, being aggrieved by the judgment

of conviction and order of sentence passed by the JMFC, Bhatkal

(hereinafter referred to as 'the trial Court', for short) in CC

No.1027/2007 for the offences punishable under Sections 323, 324,

355, 447 R/w. Section 34 of the IPC, which is modified by Court of

the Principal District and Sessions Judge, Uttara Kannada

(hereinafter referred to as 'the first Appellate Court', for short), by

its judgment and order dated 30.04.2019 passed in

Crl.A.No.254/2007.

2. Heard the arguments from both sides and perused the

records. The rankings of the parties before the trial Court are

retained for the purpose of brevity.

3. The case of the prosecution is that, on 12.01.2007 at

1300 hours within the jurisdiction of Murdeshwar village at Kolgeri,

Uttarkoppa village, the accused with a common intention

constituted together on previous ill-will and picked up quarrel with

the complainant - Nagappa Manjappa Naik, in connection with the

dispute of taking water from the tank and also with an intention to

assault the complainant accused No.1 tied stone in his lungi and

assaulted the complainant on his face, and accused No.2 also

assaulted the complainant with footwear. Accused No.3 (already

acquitted by the Sessions Court) and also accused No.1 abused the

complainant in filthy language and subsequently one Nagaraj Kulla

Naik and Venkatesh Narayanb Naik have pacified the quarrel.

4. After registering the case on the complaint of the

complainant, the police registered the case in Crime No.2/2007 and

later filed charge sheet. After framing of the charges, the

prosecution examined 9 documents and three material objects.

After concluding the evidence, the statement of the accused under

Section 313 Cr.P.C. was recorded and the trial Court held accused

Nos. 1 to 3 guilty for the offences punishable under Sections 323,

324, 504, 355 and 447 r/w. Section 34 of the IPC and convicted

them to undergo imprisonment for various terms and to pay fine for

said offences. The same was challenged by the accused by filing of

the criminal appeal No.254/2007 before the first Appellate Court,

which came to be allowed in part. The judgment and order of

conviction passed by the trial Court is modified by the first

Appellate Court as under:

"The appeal filed by the appellants is hereby partly allowed.

Accused No.3 is acquitted for the offences under Section 323, 324, 504, 355 and 447 r/w. 34 of IPC. His bail bond and surety bond, if any is ordered to be cancelled. Fine deposited, if any by accused No.3 is ordered to be refunded to him.

It is further ordered that the accused No.1 and 2 are acquitted for the offence under Section 504 R/w. Section 34 of IPC. Fine if any deposited by them in respect of said offence is to be refunded to them.

The accused No.1 and 2 are hereby convicted for the offence punishable under section 323 r/w. 34 of IPC by

imposing 3 months rigorous imprisonment and fine of `250/- each and in default to payment of fine to further undergo one month rigorous imprisonment.

The accused No.1 and 2 are hereby convicted for the offence under Section 324 r/w. 34 of IPC by imposing 6 months rigorous imprisonment and to pay fine of `2,000/- each and in default to payment of fine to further undergo rigorous imprisonment for 3 months.

The accused No.1 and 2 for are hereby convicted for the offence under Section 355 r/w. Section 34 by imposing 3 months rigorous imprisonment and to pay fine of `1000/- each and in default to payment of fine to undergo rigorous imprisonment for a period of one month.

The accused No.1 and 2 are hereby convicted for the offence under section 447 r/w. 34 of IPC by imposing one month rigorous imprisonment and to pay fine of `500/- each and in default to payment of fine to undergo rigorous imprisonment for seven days.

All the sentences shall run concurrently. Out of the fine amount deposited `3,750/- shall be ordered to pay PW1/complainant - Nagappa as per Section 357 of Cr.P.C."

5. Learned counsel for the petitioners has contended that

the judgment of conviction and order of sentence passed by both

the Courts below are not sustainable in law, which is against the

evidence placed on record. Though there are inconsistencies and

improvements in the evidence, but the trial Court accepted the

evidence which is against the law. Even the first Appellate Court

failed to re-appreciate the evidence on record. There is grave

illegality committed in passing the judgments by both the Courts

below. Hence he prayed for setting aside the judgment of

conviction and order of sentence passed against accused Nos. 1 and

2. However, the learned counsel alternatively argued, subsequent

to the judgment of conviction and order of sentence passed by the

trial Court, both the petitioners and the complainant, who are the

neighbors, have settled their dispute and living amicably and

therefore, he prayed for modifying the sentence and he submits the

petitioners are ready to pay the fine amount instead of

imprisonment.

6. Per contra, learned HCGP for the respondent supported

the judgments passed by both the Courts below and contended that

the prosecution examined nine witnesses and marked six

documents. The petitioners have not examined any defence

witnesses. Considering the evidence on record, the trial Court as

well as the first Appellate Court have rightly convicted the

petitioners and hence prayed for dismissing the revision petition.

7. Upon hearing the arguments from both side and on

perusal of the records, it is seen that the trial Court based upon the

evidence of the prosecution witnesses and by appreciating the

evidence of the complainant, who is the injured, along with the

evidence of the panch witnesses PWs. 2 and 3 and the evidence of

PW5 - doctor, who examined the injured, and considering Ex.P5 -

medical certificate and the evidence of the Police Officer, has come

to the conclusion that the prosecution proved the case against the

accused beyond all reasonable doubt and convicted the accused

persons. The first Appellate Court after re-appreciating the

evidence on record has come to the conclusion that there is no

evidence against accused No.3 and acquitted him of all the offences

and acquitted accused Nos.1 and 2 for the offence under Section

504 R/w. Section 34 of the IPC, however, by confirming the

findings, modified the sentence as stated above insofar as other

offences are concerned. Learned counsel for the petitioners though

earlier argued on merits, but later submitted that the petitioners

and the complainant, who are the neighbors, are residing amicably

after settling the dispute between them and because of the

pandemic situation, they are not able to come to the Court for filing

any compromise petition. Therefore, he prayed for modifying the

sentence.

8. As stated above, the trial Court as well as the first

Appellate Court after considering the evidence on record have come

to the right conclusion. The first Appellate Court has rightly

acquitted the accused for the offences punishable under Section

504 of the IPC and found petitioners No.1 and 2 guilty of the

offence under Sections 323, 324, 355 and 447 r/w. Section 34 of

the IPC. The first Appellate Court has convicted and sentenced

both the appellants as stated above. However, by considering the

age of the petitioners and the date of the offence, which was way

back 2007 and as the petitioners and the complainant have settled

their dispute and living together amicably in the village, if the

sentence is modified by enhancing some fine amount, that will meet

the ends of justice. By looking to the facts and circumstances of

this Case, I hold that the petition is liable to be allowed in part by

modifying the sentence imposed by both the Courts below.

Accordingly, I proceed to pass the following:

ORDER

Petition is allowed in part. Findings of the first Appellate Court

convicting the petitioners No.1 and 2 for the offence punishable

under Sections 323, 324, 355 and 447 read with Section 34 of the

IPC is hereby confirmed. However, the sentence of imprisonment is

hereby set aside and modified into fine amount as below:

i. The petitioners No.1 and 2/accused Nos. 1 and 2

are sentenced to pay a fine of `500/- each for the

offence punishable under section 323 R/w. Section

34 of the IPC and in default of payment of fine

they shall undergo rigorous imprisonment for

three months.

ii. Petitioners No.1 and 2/accused Nos.1 and 2 are

sentenced to pay a fine of `5,000/- each for the

offence punishable under Section 324 r/w. Section

34 of IPC and in default of payment of fine they

shall undergo rigorous imprisonment for six

months.

iii. The petitioners No.1 and 2 / accused Nos. 1 and 2

are sentenced to pay a fine of `1,000/- each for

the offence under Section 355 r/w. Section 34 of

the IPC and in default of payment of fine, they

shall undergo rigorous imprisonment for three

months.

iv. The petitioners No.1 and 2/accused Nos. 1 and 2

are sentenced to pay a fine of `500/- each for the

offence punishable under Section 447 r/w. Section

34 of the IPC and in default of payment of fine,

they shall undergo rigorous imprisonment for one

month.