Narasappa S/O. Kenchappa Adoni vs Kenchappa S/O. Phakkirappa Adoni
2021 Latest Caselaw 3386 Kant

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            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

       DATED THIS THE 24TH DAY OF SEPTEMBER, 2021

                        BEFORE

      THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

                 CRL.A.NO.2528 OF 2012

BETWEEN
NARASAPPA S/O. KENCHAPPA ADONI
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O. KUTAGANAHALLI,
TQ: KOPPAL, DIST: KOPPAL.
                                           ...PETITIONER
(BY SRI. M B GUNDAWADE, ADVOCATE)

AND
1.    KENCHAPPA S/O. PHAKKIRAPPA ADONI,
      AGE: 26 YEARS, OCC: AGRICULTURE,
      R/O. KUTAGANAHALLI, TQ: KOPPAL.

2.    NINGAPPA S/O. SANNA KUNCHAPPA,
      AGE: 60 YEARS, OCC: AGRICULTURE,
      R/O. KUTAGANAHALLI, TQ: KOPPAL.

3.    NINGAPPA S/O. ADIVEPPA MAJJIGI
      AGE: 32 YEARS, OCC: AGRICULTURE,
      R/O. KUTAGANAHALLI, TQ: KOPPAL.

4.    SANNA SHIVAPPA S/O. BALAPPA ADONI
      AGE: 55 YEARS, OCC: AGRICULTURE,
      R/O. KUTAGANAHALLI, TQ: KOPPAL.

5.    MANJAPPA S/O. SHIVAPPA ADONI,
      AGE: 25 YEARS, OCC: AGRICULTURE,
      R/O. KUTAGANAHALLI, TQ: KOPPAL.

6.    HALAPPA S/O. NINGAPPA ADONI
      AGE: 25 YEARS, OCC: AGRICULTURE,
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      R/O. KUTAGANAHALLI, TQ: KOPPAL.

7.    SHANTAPPA S/O. PHAKKIRAPPA ADONI,
      AGE: 26 YEARS, OCC: AGRICULTURE,
      R/O. KUTAGANAHALLI, TQ: KOPPAL.

8.    NAGAPPA S/O. BALAPPA
      AGE: 39 YEARS, OCC: AGRICULTURE,
      R/O. KUTAGANAHALLI, TQ: KOPPAL.

9.    MALLANAGOUDA S/O. BASANAGOUDA
      AGE: 39 YEARS, OCC: AGRICULTURE,
      R/O. KUTAGANAHALLI, TQ: KOPPAL.

10.   THE STATE OF KARNATAKA
      BY THE STATE PUBLIC PROSECUTOR,
      HIGH COURT OF KARNATAKA,
      CIRUCIT BENCH, DHARWAD,
      THROUGH RURAL POLICE STATION,
      KOPPAL.

                                          ...RESPONDENTS
(BY SRI. B V SOMAPUR FOR R1-R9)

      THIS CRIMINAL PETITION IS FILED U/S 372 OF CR.P.C.
SEEKING THAT THE JUDGEMENT OF CONVICTION DATED
15.11.2010 AND ORDER OF SENTENCE DATED 18.11.2010
PASSED FOR THE OFFENCES P/U/S 143, 147, 323, 324, 326,
354, 504, 506 R/W SEC. 149 OF IPC PASSED BY THE SENIOR
CIVIL JUDGE & CJM COURT, KOPPAL IN C.C.NO.142/2009 BE
CONFIRMED BY SETTING ASIDE THE JUDGEMENT AND ORDER
DATED 08.09.2011 PASSED BY THE SESSIONS JUDGE, KOPPAL,
IN CRL.A.NO.48/2010.

      THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
14.09.2021 AND COMING ON FOR PRONOUNCEMENT THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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                        JUDGMENT

The appellant, who is complainant before the Trial

Court, has preferred this appeal under Section 372 of

Cr.P.C., challenging the judgment of conviction and order

of sentence dated 08.09.2011 passed by the District and

Sessions Judge, Koppal in Criminal Appeal No.48/2010

whereby the learned Sessions Judge has set aside the

judgment of conviction dated 15.11.2010 and order of

sentence dated 18.11.2010 passed by the learned Senior

Civil Judge and C.J.M., Koppal in C.C.No.142/2009.

2. For the sake of convenience, parties herein are

referred with the original ranks occupied by them before

the Trial Court.

3. Brief facts leading to the case are as under:

A complaint was filed by one Narasappa with Koppal

Rural Police Station as per Ex.P1 alleging that the

complainant is having three brothers and out of three, one

brother by name Fakkeerappa is no more and each brother

is having 7 acres of land, but proper measurement of the

land has not taken place. It is alleged that the complainant

has requested the accused to get the land surveyed and

make proper demarcation, for which the accused did not

agree. Therefore, it is alleged that he has filed an

application with Survey Department on 24.02.2009 and on

27.02.2009 at 4.00 p.m., when he was standing near the

tea hotel of one Siddappa at Kutuganahalli, the accused

came there by forming an unlawful assembly and picked

up quarrel with him questioning him as to why he filed an

application for survey of the land and they started

assaulting him by clubs. When his brother Shivappa and

his children Maruti and Ratnamma came for his rescue, at

that time, accused by name Ningappa Majjigi, Sanna

Shivappa and Manjappa kicked on the abdomen of

Ratnawwa. She was pregnant at the time of the incident. It

is alleged that the accused pulled her sari and outraged

her modesty. In the said incident, Maruti and Sannappa

were assaulted with clubs on their face and head and they

suffered bleeding injuries. After the incident, they went to

Koppal Government Hospital and took treatment and then

Narasappa has lodged the complaint. On the basis of the

complaint, the investigating officer undertook the

investigation and submitted charge sheet against the

accused for the offences punishable under sections 143,

147, 323, 324, 326, 354, 504, 506 r/w section 149 of IPC.

The learned Magistrate has taken cognizance of the alleged

offences and after submission of charge sheet by the

investigating officer, he issued process. The accused

appeared before the learned Magistrate through their

counsel and were enlarged on bail. Then the charges were

framed, read over and explained to the accused and they

denied the charges leveled against them by pleading not

guilty and claimed to be tried. Then the prosecution has

examined in all 14 witnesses as PW1 to PW14 and got

marked 12 documents as Ex.P1 to Ex.P12 and one material

object was also marked as M.O.1. Then the statements of

accused under section 313 of Cr.P.C., were recorded and

the accused have simply denied the case of the

prosecution. Then, the learned Magistrate, after

appreciating the oral and documentary evidence, has

convicted the accused for the offences punishable under

sections 143, 147, 323, 324, 326, 354, 504, 506 r/w

section 149 of IPC.

4. Being aggrieved by the said judgment of

conviction and order on sentence, the accused have filed

an appeal under Section 374 of Cr.P.C., before the learned

District and Sessions Judge, Koppal in Criminal Appeal

No.48/2010 and the learned Sessions Judge has partly

allowed the appeal by setting aside the conviction passed

by the learned Magistrate for the offences punishable

under sections 143, 323, 324 r/w section 149 of IPC and

reduced the sentence for the offence under Section 326 of

IPC to section 323 of IPC. Further, He has confirmed the

conviction for the offence punishable under Section 147,

354, 504, 506 r/w section 149 of IPC with modification of

sentence by imposing a flee bite sentence.

5. Being aggrieved by this judgment, the

complainant has preferred this appeal under Section 374 of

Cr.P.C. However, it is evident that the State has not filed

any appeal. But now the State is sailing with the

complainant.

6. Heard the arguments advanced by the learned

counsel for appellant and the learned counsel appearing for

respondents. Perused the Trial Court records.

7. The learned counsel for appellant-complainant

would contend that the judgment of the learned Sessions

Judge in Criminal Appeal No.48/2010 is contrary to law,

facts and circumstances of the case and also legally not

sustainable. He would also contend that the Sessions

Judge has not appreciated and evaluated the evidence in

proper perspective and has not taken into consideration

the evidence on record. He would also contend that the

Medical Officer/PW7, who examined the injured/PW2 has

specifically stated that on 27.02.2009 at 6.15 p.m., when

injured/PW2 was brought to him, he noticed tenderness

over her lower abdomen and there was threat of abortion

and he treated the injured, but ultimately her pregnancy

ended in abortion. Hence, he would contend that the injury

sustained by PW2 is grievous in nature, which is

punishable under section 326 of IPC but the learned

Sessions Judge has reduced it to section 323 of IPC, which

is completely an erroneous finding. He would also contend

that the Sessions Judge has erred in appreciating the

contents of Ex.P9/wound certificate and the evidence of

the doctor/PW7 as well as the evidence of eyewitnesses.

He would contend that the Sessions judge has failed to

note the fact that PW2/Ratnawwa has suffered grievous

injury, which ultimately resulted in abortion because of

assault made by the accused on her abdomen. He would

also contend that the Sessions Judge has erred in not

convicting the accused for the offence punishable under

section 326 of IPC and has not at all appreciated the oral

and documentary evidence in detail and hence, he would

request for restoration of the judgment passed by the Trial

Court or to remand the matter to the Sessions Court for

fresh disposal.

8. The learned HCGP has supported the case of

the complainant, while the learned counsel for

respondents-accused submits that the learned Sessions

Judge has appreciated the oral and documentary evidence

in detail and has arrived at a just decision and it does not

call for any interference.

9. Having heard the arguments and perusing the

records, it is evident that the Trial Court has convicted the

accused for the offences punishable under sections 143,

147, 323, 324, 326, 354, 504, 506 r/w section 149 of IPC.

But however, the learned Sessions Judge has set aside the

judgment of conviction for the offence punishable under

sections 143, 323, 324 r/w section 149 of IPC and

conviction for the offence punishable under section 326

r/w section 149 of IPC was reduced to section 323 r/w

section 149 of IPC. The observation of the learned

Sessions Judge was very surprising and the reasons

offered are also not worth believable. The Sessions Judge

has failed to appreciate the fact that PW2 was pregnant

and due to assault on her abdomen by the accused, she

suffered abortion.

10. The Medical Officer/PW7 has deposed

regarding he examining the injured/PW2 and also issuing

Ex.P9/wound certificate. But the Sessions Judge has

ignored the evidence of the Medical Officer/PW7, who

examined the injured/PW2. On perusal of Ex.P9 coupled

with the evidence of PW7, it is evident that PW2/Ratnawwa

was admitted in hospital on the same day i.e. on

27.02.2009 and she was treated for threatened abortion

for five days and on the fifth day, she developed pain in

her abdomen and products were expelled completely.

Hence, he would contend that the injury sustained by PW2

in the incident is grievous in nature. The learned Sessions

Judge ignoring Ex.P9 and the evidence of PW7 has placed

reliance on Ex.P7/scanning report, which was taken on

28.02.2009. But the evidence of PW7/Medical Officer

discloses that there was a threat of abortion due to pain in

the abdomen and as such, she was treated for threatened

abortion and later on the fifth day it ended into abortion.

Under these circumstances, the entire approach of the

learned Sessions Judge is erroneous. PW2 was admitted in

the hospital on the same day and on the fifth day, her

pregnancy ended into abortion because of pain in her

abdomen. When there is a specific case of assault on the

abdomen of PW2/Ratnawwa and that too when she was

pregnant, the learned Sessions Judge has gone to the

extent to observe that since the abortion was after five

days, there is no evidence co-relating that the abortion

was because of the alleged assault. This observation of the

learned Sessions Judge is very strange. No doubt, no

weapon was used by the accused in assaulting PW2, but

they have assaulted the other witnesses by sticks. Though

the offence under section 326 of IPC is not attracted as no

weapon was used, but since PW2 suffered abortion, which

injury is grievous in nature, the offence under Section 325

of IPC is attracted and the learned Sessions Judge should

have considered this aspect. He has completely ignored all

these aspects. Further, very surprisingly he set aside the

conviction under section 143, 323, 324 r/w section 149 of

IPC and again without any basis, he brings down the

offence under section 323 r/w section 149 of IPC instead of

section 325 of IPC. He has also imposed only a flee bite

sentence, which has resulted in miscarriage of justice. The

entire approach of the learned Sessions Judge is erroneous

and he has not dealt it in accordance with law.

11. Further, it is to be noted here that the

allegations were, assault by sticks. But the charge under

section 324 of IPC was not at all framed by the Trial Court.

None of these aspects have been considered by the

learned Sessions Judge and he should have remanded the

matter for fresh trial considering the anomalies in framing

the charge or improper framing of charge, as regarding

abortion, charge under section 323 of IPC is framed, which

was improper. All these facts and circumstances clearly

establish that the learned Sessions Judge has not at all

applied his mind and in a mechanic way, he disposed of

the appeal without properly appreciating the facts. Hence,

the learned counsel for appellant-complainant as well as

the learned counsel for respondents would submit that the

matter may be remanded to the Sessions Court so as to

set the things right. Looking to these facts and

circumstances, the impugned judgment passed by the

learned Sessions Judge needs to be interfered with and

requires to be set aside by remanding the matter for fresh

disposal by the learned Sessions Court by appreciating the

entire evidence on record. Accordingly, I proceed to pass

the following:

ORDER

The appeal is allowed.

The impugned judgment dated 08.09.2011 in Criminal Appeal No.48/2010 passed by the learned District and Sessions Judge, Koppal is hereby set aside and matter is remanded to the Sessions Court for fresh disposal, in the light of the observations made in the body of the judgment. The learned Sessions Judge, in any event, is directed to

dispose of the appeal within six months from the date of receipt of records.

            Registry is directed to send back the TCR
      immediately    with    copy   of   this   order   for
      compliance.

            In   view   of   disposal    of   the   appeal,

pending interlocutory applications, if any, do not survive for consideration and are dismissed accordingly.

Sd/-

JUDGE yan