Shivappa S/O Shivabasappa ... vs The State Of Karnataka
2022 Latest Caselaw 2606 Kant

                             1



           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 17TH DAY OF FEBRUARY, 2022

                         BEFORE

        THE HON'BLE MR. JUSTICE V. SRISHANANDA

          CRIMINAL APPEAL NO.200085/2015


BETWEEN:

Shivappa S/o Shivabasappa Hadapad,
Aged about 55 years, Occ : Agriculture,
R/o Byakod Village, Tq : B.Bagewadi,
Dist : Vijayapur.
                                               ... Appellant

(By Sri Mahantesh Patil, Advocate)


AND:

The State of Karnataka,
Through B.Bagewadi Police,
Represented by its
State Public Prosecutor,
High Court Building, Kalaburagi.
                                             ... Respondent

(By Sri Gururaj V.Hasilkar, HCGP)

      This Criminal appeal is filed under Section 374(2) of
Criminal Procedure Code praying to set aside the judgment
of conviction dated 13.07.2015 and order of sentence
dated 16.07.2015 passed by the learned II Addl. Sessions
and Special Judge, Vijayapur in Special Case No.30/2013
                               2



and acquit the appellant for the offences charged against
him.

      This appeal coming on for Further Hearing this day,
the Court delivered the following:

                        JUDGMENT

The present appeal is filed against the Judgment

dated 13.07.2015 passed in Special Case No.30/2013 by

the court of II Addl. Sessions and Special Judge, Vijayapur.

2. Brief facts of the case are as under :-

The present accused/appellant was charge sheeted

for the offences punishable under Sections 447, 326, 504

and 506 read with Section 34 of IPC and Section 3(1)(x)

and 3(2)(v) of Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989 (hereinafter referred to

as 'SC/ST (PA) Act' for brevity).

3. In the complaint, it is contended that on

18.08.2013 the appellant tried to assert his right of access

to the land of Nemu Rathod situated near the Bellihalla of

Byakod village and at that time Nemu Rathod objected for

the same. In that regard there was a quarrel and appellant

and accused Nos.2 and 3 who were the juvenile offenders

abused Nemu Rathod in filthy language by taking out his

caste name and also assaulted him with a blunt portion of

the axe. In the meantime, the quarrel was pacified.

Subsequent thereto, complaint was registered and police

investigated the matter and filed the charge-sheet against

the accused/appellant for the aforesaid offences.

4. The presence of the accused/appellant was

secured and trial was held, since accused pleaded not

guilty.

5. In order to prove the case of the prosecution,

in all eight witnesses were examined as PWs.1 to 8.

Prosecution relied on ten documents which were exhibited

and marked as Exs.P1 to P10. Three material objects were

also marked on behalf of the prosecution as MOs.1 to 3.

6. On conclusion of the prosecution evidence,

statement of the accused as contemplated under

Section 313 of Cr.P.C has been recorded wherein the

accused has denied all the incriminatory materials found

against him in the prosecution evidence. Accused did not

chose to place his version about the incident on record

either by examining himself or by placing any written

submissions as is contemplated under Section 313(5) of

Cr.P.C.

7. Thereafter, learned trial Judge heard the

parties and by judgment dated 13.07.2015 convicted the

accused for the offences punishable under Sections 447,

326, 504 and 506 read with Section 34 of IPC and passed

an order of sentence as under :-

"Accused No.1/Shivappa is hereby sentenced to undergo rigorous imprisonment for 3 (three) months for the offence punishable U/s.447 of IPC and shall pay a fine of Rs.500/-. In default of payment of fine, he shall further undergo simple imprisonment for a period of 10 (ten) days.

Accused No.1/Shivappa is sentenced to undergo rigorous imprisonment for 1 (one) year for the offence punishable U/s.504 of IPC.

For the offence U/s.506 of IPC, which has resulted in causing grievous injury to Pw.3/Nemu,

that too, with a weapon, therefore accusedNo.1/Shivappa is sentenced to undergo rigorous imprisonment for 5 (five) years for the said offence, as it falls U/s.506 part-II of IPC.

Accused No.1/Shivappa is hereby sentenced to undergo rigorous imprisonment for 10 (ten) years for the offence punishable U/s.326 of IPC and shall pay a fine of Rs.5,000/-. In default of payment of fine, he shall further undergo simple imprisonment for a period of 3 (three) months.

Substantial sentences of imprisonment shall run concurrently, whereas default clause sentences shall run one after the other.

MO.1 to 3 are ordered to be destroyed as worthless after appeal period is over.

This accused No.1 has made the Pw.3/Nemu virtually incapable of doing anything because of fracture of his left thigh on femur region, therefore acting U/s.357-A of Cr.PC, accused is directed to pay compensation of Rs.50,000/- to Pw.3/Nemu. In default of payment of this compensation, same shall be recovered from him invoking the provisions of Sec.441 of Cr.PC and if that is not possible for any reason, then this accused shall further undergo simple imprisonment for 1 (one) year."

8. Being aggrieved by the same, the accused is

before this court in this appeal. In the appeal

memorandum the following grounds have been raised :-

x That, the order of conviction and sentenced passed by ll Addl. Sessions Judge & Spl. Judge Vijayapur is illegal improper and erroneous in law, hence, the same is liable to be set-aside.

x That, the trial court has not appreciated the evidence adduced by the prosecution in its proper prospective therefore the some has resulted mis-carriage injustice.

x That, the learned special judge has grossly erred in appreciating the evidence of the PW-1 and other witness i.e. PW-3, PW-5 and PW-7 hence the conviction of the appellant is liable to be set-aside.

x That, the evidence of PW.1 who is complainant PW.2 who is panch witnesses and Pw.3 injure witness are not corroborated each other, relying upon the evidence of these witnesses the learned Spl. Judge wrongly held that the prosecution has satisfactorily proved the prosecution case against A1/appellant. Hence, conviction U/Sec.326 IPC and other offence one alleged and liable to be set- aside.

x That, the PW.1 who is complainant and husband of PW.3/Nemu she has stated in her evidence that A.1 assaulted the PW.3 from blunt portion of the on the left leg, at that time PW-5 is to sported prosecution case evidence

PW.1, PW.3 and PW.5 are not corroborated with each others, relying upon the evidence of these witness the learned trial judge convicted the appellant, as such order of conviction and sentence it illegal and liable to be set- aside.

x That, PW.7 states that he seized blot stained white cloths, PW.1 state that blood stained cloths i.e. plant and shirt were thrown in the Naala, on perval of these evidence blood stained cloth has not been seized blood stained cloths has not been seized in the absence of seizer, conviction illegal and liable to be set-aside.

x That, Ex.P.4 i.e. spot panchanama is drawn in the presence of the PW.2 Sharanagouda and CW.3 Dundappa PW.2 Sharanagouda denied the drawings Ex.P.4 its means he has not sported the prosecution case and CW.3 was not examined to prove the Ex.P.4 therefore Ex.P.4 is not proved and same is not admissible in evidence. Hence, conviction the appellant is liable to be set-aside.

x Even otherwise the impugned judgment of the conviction is bad in law and requires an interference by this Hon'ble Court.

9. Sri Mahantesh Patil, learned counsel for the

appellant reiterating the above grounds, sought for

allowing the appeal. He further contended that accused

has not assaulted resulting in the grievous injury to the

Nemu Rathod and the police have filed a false charge

sheet and sought for allowing the appeal.

10. Alternatively, he contended that

accused/appellant was in custody from 18.08.2013 to

20.09.2013 and the custody period be treated as

imprisonment.

11. Per contra, learned High Court Government

Pleader opposes the appeal grounds.

12. In light of the rival contentions, the following

points would arise for consideration :-

1. Whether the prosecution has successfully established that accused is guilty of the offences punishable under Sections 447, 326, 504 and 506 read with Section 34 of IPC ?

2. Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls for interference ?

3. Whether the sentence is excessive ?

Regarding point Nos.1 to 3 :

13. In the case on hand, in order to prove the case

of the prosecution, Smt.Shivubai Nemu Rathod is

examined as PW.1 and she is the complainant. The injured

Nemu Rathod is examined as PW.3. Doctor who issued the

wound certificate is examined as PW.6. Deputy

Superintendent of Police, Baldandi and Police Sub-

Inspector who registered the case are examined as PWs.7

and 8 respectively. Complaint is marked as Ex.P.1,

photographs are marked as Exs.P2 and P3, spot mahazar

is marked as Ex.P.4, wound certificate is marked as Ex.P.6.

Wound certificate clearly shows that there was a fracture

sustained by Nemu Rathod on the parietal region. X-ray is

also produced before the court.

14. Complainant and PW.3 have specifically

deposed that accused high handedly entered the land of

the Nemu Rathod and asserted his right of access into the

land and in that regard an altercation took place and

assault has been made. There is no much delay in lodging

the complaint likewise, the examination of the injured by

the Doctor. In the cross-examination, no useful materials

are elicited so as to disbelieve the case of the prosecution.

The learned trial Judge after considering the oral and

documentary evidence on record, did apply his mind and

acquitted the accused/appellant for the offences

punishable under Sections 3(1)(x) and 3(2)(v) of SC/ST

(PA) Act. The State has not preferred any appeal against

the said finding of the trial Judge. Therefore, as far as

State or the de-facto complainant is concerned have not

appealed against the said finding, it has become final.

15. Therefore, this court has re-appreciated the

materials on record in the light of appeal grounds.

16. Since the incident stands proved and the Nemu

Rathod has sustained injury and he is also now reported to

be dead, suitable compensation needs to be given to the

wife of the Nemu Rathod. Likewise, materials on record

also shows that no proper compensation was awarded by

the trial court while passing the impugned judgment.

Accordingly, point Nos.1 and 2 are answered partly in the

affirmative and point No.3 is answered in the negative.

Hence, the following :

ORDER

Appeal is allowed in part.

While maintaining the conviction of the

accused/appellant for the offences punishable under

Sections 447, 326, 504 and 506 Part II of IPC, the period

of imprisonment undergone by the accused/appellant from

18.08.2013 to 20.09.2013 is treated as period of

imprisonment.

Further, the accused/appellant is directed to pay the

fine of `55,000/- for the aforesaid offences. Out of which,

a sum of `50,000/- is to be paid as compensation to PW.1

who is the wife of the injured Nemu Rathod.

Soon after the dictation of the present judgment in

this case in the open court, Sri Mahantesh Patil, submits

that the complainant Shivubai Nemu Rathod is present

before the court. Learned High Court Government Pleader

and the accused have also identified the complainant.

Learned counsel Sri Mahantesh Patil submits that the

accused/appellant is ready and willing to pay

compensation in a sum of `50,000/- to the hands of

Smt.Shivubai Nemu Rathod here itself and amount in

deposit in a sum of `30,500/- less `5,500/- shall be

appropriated by the State towards defraying expenses. The

balance amount in a sum of `25,000/- shall returned to

the accused/appellant under due identification.

His submission is noted. A sum of `50,000/- in cash

was handed over by the appellant herein to Smt. Shivubai

Nemu Rathod and the same is acknowledged by her in the

order sheet.

In view of the same, out of the fine amount

deposited before the trial court in a sum of `30,500/-,

after deducting a sum of `5,500/- towards defraying

expenses to the State, balance amount of `25,000/- is

ordered to be returned to the accused/appellant under due

identification.

Ordered accordingly.

Office is directed to return the trial court records

along with a certified copy of this judgment forthwith.

Sd/-

JUDGE

sn