Karnataka High Court
Kabballi Durugappa vs The State Of Karnataka on 29 July, 2022
Bench: Dr.H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JULY, 2022
BEFORE
THE HON'BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY
CRIMINAL REVISION PETITION No.649 OF 2013
c/w.
CRIMINAL REVISION PETITION No.630 OF 2013
CRIMINAL REVISION PETITION No.649 OF 2013
BETWEEN:
1. Kabballi Durugappa,
S/o. Kasbbaleppa,
Age : 31 years,
Occ: Agriculturist,
2. Kabballi Rangappa,
S/o. Kabbaleppa,
Age : 36 years,
Occ: Agriculturist,
3. Kabballi Ramesh,
S/o. Kabbaleppa,
Age : 31 years,
Occ: Agriculturist,
4. Nagappa,
S/o. Sotteppa,
Age : 41 years,
Occ: Agriculturist,
5. Muppinappa,
S/o. Sotteppa,
Crl.R.P.No.649/2013
c/w.Crl.R.P.No.630/2013
2
Age : 36 years,
Occ: Agriculturist,
6. Basavaraj,
S/o. Sottappa, Age : 31 years,
Occ: Agriculturist,
7. Parasappa,
S/o. Thirukappa,
Age: 33 years, Occ: Agriculturist
8. Kurubara Goolyappa,
S/o. Channabasappa,
Age: 56 years,
Occ: Agriculturist,
9. Basavaraj,
S/o. Thangatappa,
Age: 36 years,
Occ: Agriculturist
All are Residents at
Arasikere Village,
Harapanahalli Taluk,
Davanagere District - 577601.
..Petitioners
(By Sri. C.H. Jadhav, Senior Counsel for Sri. Prasanna Kumar P.,
Advocate; Petition against petitioner No.6 has stood abated vide
registry note dated 05/06-04-2022)
AND:
The State of Karnataka,
By Arasikere Police,
Represented by State
Public Prosecutor,
High Court Building,
Bangalore.560001.
.. Respondent
(By Sri. K. Nageshwarappa, High Court Govt. Pleader)
Crl.R.P.No.649/2013
c/w.Crl.R.P.No.630/2013
3
****
This Criminal Revision Petition is filed under Section 397
and 401 of the Code of Criminal Procedure, 1973, praying to call
for the relevant records and allow this Criminal Revision Petition,
by setting aside the judgment and order of conviction and
sentence dated 12-07-2013 passed by the II Addl. District and
Sessions Judge, At Davanagere, in Criminal Appeal No.21/2010,
thereby dismissing the appeal filed by the petitioners and
confirming the judgment and order of conviction and sentence
dated 18-01-2010 passed by the Judicial Magistrate First Class,
at Harapanahalli, Davanagere District, in C.C.No.51/2006,
thereby convicting the petitioners/accused No.1 to 9 for the
offences punishable under Sections 143, 148, 323, 324, 326,
504, 506 read with 149 of the IPC and thereby sentencing them
to pay fine of Rs.300/- each for the offence punishable under
Section 143 of the IPC, further sentencing them to pay fine of
Rs.300/- each for the offence punishable under Section 148 of
IPC, etc.
CRIMINAL REVISION PETITION No.630 OF 2013
BETWEEN:
1. Bovi Durgappa,
S/o. Goneappa,
Aged 41 years.
2. Basavarajappa,
S/o. Basappa,
Aged 43 years.
3. Bheemappa,
S/o. Dodda Durgappa,
Aged 33 years.
4. Gangamma,
W/o. Basavarajappa,
Aged 37 years.
All belong to Bovi Caste,
Crl.R.P.No.649/2013
c/w.Crl.R.P.No.630/2013
4
Resident of Arasikere Village,
Harapanahalli Taluk,
Pin- 583131
Davangere District.
..Petitioners
(By Sri. A.C. Balaraj, Advocate)
AND:
The State of Karnataka
Represented by Police Sub-Inspector,
Arasikere Police Station,
Harpanahalli Taluk,
Davangere District. 583131.
.. Respondent
(By Sri. Nageshwarappa, High Court Govt. Pleader)
****
This Criminal Revision Petition is filed under Section 401 of
the Code of Criminal Procedure, 1973, praying to (i) set aside
the order passed by the Judicial Magistrate First Class,
Harapanahalli, Davangere District in C.C.No.24/2006 dated
18-01-2010 and also the judgment passed by the learned II
Additional District and Sessions Judge, Davangere, in
Cr.A.No.20/2010 dated 12-07-2013; (ii) and be pleased to acquit
the petitioners of the offences alleged against him namely,
Sections 323, and 324 of the Indian penal Code in Crime No.112
of 2005 (C.C.No.24 of 2006); (iii) Pass such other order or
direction as deems fit in the circumstances of the case and allow
the above criminal revision petition with costs, in the interest of
justice and equity.
Crl.R.P.No.649/2013
c/w.Crl.R.P.No.630/2013
5
These Criminal Revision Petitions having been heard
through physical hearing/video conferencing hearing and
reserved on 21-07-2022, coming on for pronouncement of
Orders this day, the Court made the following:
ORDER
The petitioners in Criminal Revision petition
No.649/2013, as accused Nos.1 to 9 respectively, were
tried by the Court of the learned Civil Judge (Jr.Dn.) and
Judicial Magistrate First Class at Harapanahalli, Davanagere
District (hereinafter for brevity referred to as "the Trial
Court") in C.C.No.51/2006, for the offences punishable
under Sections 143, 147, 148, 323, 324, 326, 354, 504,
506, 114 read with Section 149 of the Indian Penal Code,
1860, (hereinafter for brevity referred to as "the IPC") and
were acquitted for the offence punishable under Section 354
of the IPC but were convicted for the other alleged offences
by its judgment of conviction and order on sentence dated
18-01-2010.
The petitioners in Criminal Revision Petition
No.630/2013, as accused Nos.1 to 4 respectively, were
Crl.R.P.No.649/2013
c/w.Crl.R.P.No.630/2013
tried by the Trial Court in C.C.No.24/2006, for the offences
punishable under Sections 323, 324, 504 read with Section
34 of the IPC and were acquitted for the offence punishable
under Section 504 of the IPC but were convicted for the
other alleged offences by its judgment of conviction and
order on sentence dated 18-01-2010.
2. The summary of the case of the prosecution in the
Trial Court in C.C.No.51/2006 was that, on the date
11-11-2005 at about 6:30 p.m., near the house of
Gonibasappa at Arasikere village, within the limits of the
complainant Police Station, in relation to discharge of the
bathroom water, the accused persons had a quarrel with
the complainant and his family members and all the
accused persons, in furtherance of their common object,
forming themselves into an unlawful assembly and rioting
with deadly weapon, picked up a quarrel with the
complainant and abused him in filthy words. In the said
process, the accused No.1 voluntarily assaulted on the face
of the complainant and broke his four teeth by means of a
Crl.R.P.No.649/2013
c/w.Crl.R.P.No.630/2013
stone and thus caused grievous injuries. The accused No.2,
accused No.3 and accused No.4 also assaulted the family
members of the complainant by their hands and a wooden
cart peg. Accused Nos.5 to 9 abetted the other accused
persons to commit the said offences. Further, all the
accused persons threatened to the life of CW-1 to
CW-3 and thereby have committed the offences punishable
under Sections 143, 147, 148, 323, 324, 326, 354, 504,
506, 114 read with Section 149 of the IPC. After
investigation, the Police have filed charge sheet against the
accused Nos.1 to 9, for the alleged offences.
3. The summary of the case of the prosecution in the
Trial Court in C.C.No.24/2006 was that, on the date
11-11-2005, at about 12:00 a.m., near the house of the
complainant, in relation to discharge of bathroom water to
the complainant's property, the complainant asked the
accused No.1 not to leave the bathroom water to his
property. The same led to exchange of verbal words
between them. On the same day, at about 6:00 p.m., the
Crl.R.P.No.649/2013
c/w.Crl.R.P.No.630/2013
accused No.1 called the complainant and picked up a
quarrel in relation to discharge of the bathroom water.
Accused Nos.1 and 2 have abused the complainant by using
filthy words. Accused No.1 assaulted the complainant using
a stone and accused No.2 assaulted him with his hands.
When CW-2 came to pacify the quarrel, accused No.2
assaulted on his body with a wooden club and accused No.4
assaulted by her hands and caused simple injury to CW-1
and CW-2, thereby the accused have committed offences
punishable under Sections 323, 324, 504 read with Section
34 of the IPC. After completing the investigation, the Police
filed charge sheet against the accused Nos.1 to 4 for the
alleged offences.
In response to the summons, the accused in
C.C.No.51/2006 appeared through their counsel and
contested the matter. They pleaded not guilty and hence
claimed to be tried. In order to prove the alleged guilt
against the accused persons, the prosecution got examined
in all nine witnesses from PW-1 to PW-9, got marked
Crl.R.P.No.649/2013
c/w.Crl.R.P.No.630/2013
documents from Exs.P-1 to P-5(a) and produced three
Material Objects from MO-1 to MO-3.
Similarly, in response to the summons, the accused in
C.C.No.24/2006 appeared through their counsel and
contested the matter. They pleaded not guilty and hence
claimed to be tried. In order to prove the alleged guilt
against the accused persons, the prosecution got examined
in all eight witnesses from PW-1 to PW-8, got marked
documents from Exs.P-1 to P-5(a) and produced two
Material Objects as MO-1 and MO-2.
In both the criminal cases, neither any witness was
examined nor any documents were marked as Exhibits from
the side of the accused persons.
4. After hearing both side, the Trial Court by its
impugned judgment of conviction and order on sentence
dated 18-01-2010 in C.C.No.51/2006 found accused Nos.1
to 9 guilty for the offences punishable under Sections 143,
148, 323, 324, 326, 504, 506, 114 read with 149 of the IPC
Crl.R.P.No.649/2013
c/w.Crl.R.P.No.630/2013
and sentenced them accordingly, however, it acquitted all
the nine accused for the offence punishable under Section
354 of the IPC.
The same Trial Court, by its impugned judgment of
conviction and order on sentence dated 18-01-2010 in
C.C.No.24/2006 found accused Nos.1 to 4 guilty for the
offences punishable under Sections 323 and 324 read with
34 of the IPC and sentenced them accordingly, however, it
acquitted all the four accused for the offence punishable
under Section 504 of the IPC.
Aggrieved by the judgments of conviction and order
on sentence passed by Trial Court, both the sets of accused
persons filed two Criminal Appeals in the Court of the
learned II Additional District and Sessions Judge,
Davanagere, (hereinafter for brevity referred to as the
"Sessions Judge's Court").
The learned Sessions Judge's Court, vide its two
separate judgments, both dated 12-07-2013, dismissed
both the appeals. It is challenging the judgments passed
Crl.R.P.No.649/2013
c/w.Crl.R.P.No.630/2013
by both the Trial Court as well the Sessions Judge's Court, all the
accused have preferred these two revision petitions.
As per the note put up by the registry dated 05/06-04-
2022, the petition of the petitioner No.6 in CRL.RP.No.649/2013
has stood abated.
5. The respondent - State in both the revision petitions is
being represented by the learned High Court Government
Pleader.
6. Learned Senior counsel for the revision petitioners/accused
persons in Crl.R.P.No.649/2013 is appearing through video
conference; learned counsel for petitioners/accused persons in
Crl.R.P.No.630/2013 and learned High Court Government Pleader
for the respondent/complainant in both the revision petitions are
appearing physically before the Court.
7. The Trial Court and the Sessions Judge's Court's records
were called for in both the matters and the same are placed before
this Court.
8. Heard the arguments from both side. Perused the
materials placed before this Court including the Trial Court and
Sessions Judge's Court's records.
Crl.R.P.No.649/2013
c/w.Crl.R.P.No.630/2013
9. For the sake of convenience, the parties would be
henceforth referred to as per their rankings before the Trial
Court.
10. After hearing the learned counsels for the parties,
the only point that arise for my consideration in this revision
petition is:
Whether the impugned judgments of conviction
and orders on sentence passed by the learned Civil
Judge (Jr.Dvn.) & Judicial Magistrate First Class,
Harapanahalli, Davanagere dated 18-01-2010, in
C.C.No.51/2006 and C.C.No.24/2006, which were
further confirmed by the learned II Additional District
Sessions Judge at Davanagere, in Criminal Appeal
No.21/2010 and Criminal Appeal No.20/2010,
warrant any interference at the hands of this Court ?
11. Learned Senior counsel for the revision petitioners
(accused) in Criminal Revision Petition No.649/2013, in his
arguments submitted that, the accused persons and
complainant in both the cases are neighbours and for a very
silly reason they had an altercation between them.
Crl.R.P.No.649/2013
c/w.Crl.R.P.No.630/2013
He submitted that it is only accused No.1 who
assaulted but not the remaining accused. The remaining
accused were impleaded falsely because of the political
rivalry between the parties in the Grama Panchayat
elections. Therefore, the conviction of the other accused
other than the accused No.1 was erroneous.
He further submitted that even if the evidence of the
prosecution witnesses are taken at their face value, still, it
cannot be held that the alleged articles at MO-1 and MO-2,
which is a small size stone and a small wooden cart peg are
dangerous weapons. Still, the Trial Court as well the
Sessions Judges Court, without considering the nature of
the alleged weapons used in the commission of the offence,
have blindly held the accused guilty of the offence
punishable under Section 326 of the IPC, which is
erroneous.
Crl.R.P.No.649/2013
c/w.Crl.R.P.No.630/2013
In his support, he relied upon the judgment of the
Hon'ble Apex Court in the case of Mathai Vs. State of
Kerala reported in (2005) 3 Supreme Court Cases 260 .
12. Learned counsel for the revision petitioners/
accused in Criminal Revision Petition No.630/2013 in his
argument reiterated that, these two petitions are cases and
counter cases with respect to the very same incident said to
have taken place between the parties. He too stated that,
the parties are neighbours in the village and that for a
trivial reason, the incident in question has occurred.
Stating that there are no sufficient evidence to convict the
petitioners for the alleged offences, he prayed to allow the
petition.
13. Learned High Court Government Pleader
appearing for respondent/State in both the revision
petitions submitted that, in Criminal Revision Petition
No.649/2013, PW-1, PW-3, PW-4 and PW-6 being the
injured eye witnesses, have fully supported the case of the
Crl.R.P.No.649/2013
c/w.Crl.R.P.No.630/2013
prosecution, as such, their evidence cannot be disbelieved.
Even the independent eye witnesses have also supported
the case of the prosecution. He further submitted that since
MO-1 and MO-2 are deadly weapons used in the
commission of the offence and injuries caused on CW-1 was
a grievous one, the Trial Court has rightly convicted the
accused for the offences punishable under Sections 143,
148, 323, 324, 504, 506, 114 read with Section 149 of the
IPC including for the offence punishable under Section 326
of the IPC.
With respect to Criminal Revision petition
No.630/2013, learned High Court Government Pleader
submitted that PW-1 and PW-2 being the injured eye
witnesses, have fully supported the case of the prosecution.
The other witnesses examined by the prosecution including
PW-3 have corroborated the evidence of PW-1 and PW-2.
The medical evidence also corroborates the narration of the
incident as given by PW-1 and PW-2, as such, the Trial
Crl.R.P.No.649/2013
c/w.Crl.R.P.No.630/2013
Court has rightly convicted the accused persons for the
alleged guilt.
In C.C.No.51/2006 (Crl.R.P.No.649/2013) :
14. PW-1 (CW-1) - Nagendrappa is the complainant
and claims himself to be one among the injured persons. In
his evidence, while reiterating the contents of the
complaint, he has stated that it was the accused persons
who picked up a quarrel with him in relation to the flow of
bathroom water. He stated that when he was coming near
the house of Kabballi Rangappa (Accused No.2), all the
accused persons came there with deadly weapons and
abused him using filthy language as "¸ÀƼÉêÀÄPÁî" (sons of a
bitch). He specifically stated that, accused No.1 assaulted
him with a stone on his left upper lip, due to which, his four
teeth were broken. He further stated that accused No.1
assaulted PW-6 with a wooden cart peg on his back,
accused No.3 assaulted PW-4 with his hand, Accused No.4
assaulted and outraged the modesty of PW-3. The other
Crl.R.P.No.649/2013
c/w.Crl.R.P.No.630/2013
accused being physically present, abetted the accused
Nos.1 to 4 to assault the complainant.
15. PW-3 (CW-2) -Lakshmamma has claimed herself
to be an eye witness and also an assaulted in the incident.
She has stated that all the accused abused them in filthy
language even as "¯ÉÆÃ¥sÀgï ¸ÀƼÉêÀÄPÁî" i.e. "loafer sons of a
bitch". The accused No.1 assaulted CW-1 (PW-1) -
Nagendrappa on his mouth with a stone, due to which, four
teeth of Nagendrappa fell down. When she attempted to
pacify the dispute, she too was assaulted by accused No.4.
She has even stated that, the saree worn by her was also
pulled by them. When Hanumanthappa (PW-4/CW-3) came
to their rescue, he was also assaulted by them. Similarly,
Nagaraja (PW-6/CW-5) who had come to pacify the dispute
also was assaulted by accused No.2 Rangappa with a
wooden cart peg. She further stated that the accused
persons gave them the life threat that they would kill at
least one among them. This witness has identified the four
teeth said to be of CW-1(PW-1) - Nagendrappa in the Court,
Crl.R.P.No.649/2013
c/w.Crl.R.P.No.630/2013
as MO-3. Stating that, it was with the very same stone and
wooden cart peg that the accused persons had assaulted
them, she has identified those two articles also at MO-2 and
MO-1 respectively.
16. PW-4 (CW-3) - Hanumanthappa and PW-6 (CW-5)
- Nagaraja have given their evidence on the lines of the
evidence of PW-1 and PW-3. Both of them have stated
that, the accused were quarrelling with the complainant and
were abusing him in filthy language, calling him "¸ÀƼÉêÀÄPÁî"
(sons of a bitch). When they attempted to pacify the
dispute, the accused have assaulted even them also. Both
of them have stated that, as they were seeing, accused
No.1 assaulted CW-1 (PW-1) Nagendrappa on his mouth
with a stone, due to which, four teeth of CW-1 (PW-1) were
broken. PW-3 who came to pacify the dispute was also
assaulted by them. Both these witnesses have given the
details as to which accused assaulted whom and in what
manner, which has come in uniformity with the narration of
the incident given by PW-1 and PW-3 in their evidence.
Crl.R.P.No.649/2013
c/w.Crl.R.P.No.630/2013
Both these witnesses have identified MO-1 to MO-3, in the
Court.
17. PW-1, PW-3, PW-4 and PW-6 have identified the
accused persons in the Court stating that, it was them who
have assaulted them, as narrated by them.
Even though PW-1, PW-3, PW-4 and PW-6 were
subjected to a detailed cross-examination from the
accused' side and attempts were made to shaken the
evidence of these witnesses given in their examination-in-
chief, but nothing could be elicited either in favour of the
accused persons or making the statements of these
witnesses made in their examination-in-chief, a doubtful
one. Thus, none else than the four injured witnesses have
specifically and clearly stated that, it was accused No.1,
accused No.2, accused No.3 and accused No.4, who have
actually assaulted them and that the remaining accused
were abetting the act of accused No.1, accused No.2
accused No.3 and accused No.4 and all the accused have
insulted them in public and provoked them by abusing them
Crl.R.P.No.649/2013
c/w.Crl.R.P.No.630/2013
in filthy language. There are no reasons to disbelieve the
evidence of these four injured witnesses.
18. In addition to the above, PW-5 (CW-4) -
Bheemappa and PW-7 (CW-6) - Goneppa, claiming
themselves to be the eye witnesses to the incident also
have supported the case of the prosecution, by giving their
evidence in conformity with the evidence of PW-1, PW-3,
PW-4 and PW-6. Both these witnesses have given a clear
account of the incident and explained as to which of the
accused committed which alleged act and against whom.
The said description made by these two independent eye
witnesses corroborates the evidence of the four injured
witnesses, i.e. PW-1, PW-3, PW-4 and PW-6. Even in the
cross-examination of these two independent eye witnesses
also, nothing could be elicited in favour of the accused
persons. There are no reasons to disbelieve the evidence of
PW-5 and PW-7 that, they were the eye witnesses to the
incident and that the details of the incident given by them
are unbelievable. However, none of the above witnesses
Crl.R.P.No.649/2013
c/w.Crl.R.P.No.630/2013
have spoken about any reaction to the alleged provocation
said to have been given by the accused and assault said to
have been made by the accused persons upon them as to,
what PW-1, PW-3, PW-4 and PW-6 did? They have not
stated as to what was their response. Still, the evidence of
PW-1, PW-3, PW-4 and PW-6 coupled with the evidence of
the independent eye witnesses, i.e. PW-5 and PW-7
establishes that, all the nine accused persons, forming
themselves into an unlawful assembly with the common
object of assaulting CW-1 and anybody coming to his
rescue, have committed the alleged offences. In the said
process, the accused also have made use of the weapon
cart peg at MO-1 and the stone at MO-2.
19. The evidence of PW-2 - Doctor is that, as a
Medical Officer of the Primary Health Centre, Arasikere, he
has examined PW-1 - Nagendrappa and PW-3 -
Lakshmamma on the date 11-11-2005 at 6:45 p.m., who
had come to his Hospital with the history of assault on the
same day at 6:30 p.m. He noticed swelling on both hips
Crl.R.P.No.649/2013
c/w.Crl.R.P.No.630/2013
and missing of upper front four teeth in the examination of
Nagendrappa (PW-1) and noticed internal pain all over the
body of Lakshmamma (PW-3). He has opined that the
injury sustained by PW-1 - Nagendrappa was grievous in
nature and the injury sustained by Lakshmamma (PW-3)
was simple in nature. In that regard, he has issued two
Wound Certificates at Exs.P-1 and P-2 respectively. Though
he has admitted a suggestion that, if a shepherd in the
forest area or in the Hill falls on the ground and come in
contact with any hard object there is possibility of loosing
the front upper four teeth, but, merely by making such a
suggestion in the form of a defence from the accused' side,
it cannot be inferred that the injured PW-1 might have
sustained injury in a manner as suggested by the accused'
side. It was for the accused to establish the same, since
the evidence of PW-1, PW-3, PW-4, and PW-6 has clearly
established that the loss of four teeth by PW-1 and simple
injury upon PW-3 were due to the overt act committed by
Crl.R.P.No.649/2013
c/w.Crl.R.P.No.630/2013
the accused Nos.1 to 4, which was further abetted by the
remaining accused persons.
20. The evidence of PW-1, PW-3, PW-4, PW-5, PW-6
and PW-7 that, the incident has taken place on a public
place, near the house of Bovi Goneppa in Arasikere village,
is further corroborated by the evidence of PW-8 (CW-8) -
Anjinappa, who has stated that the scene of offence
panchanama was drawn in his presence as per Ex.P-4 and
from the spot, a wooden cart peg and a stone at MO-1 and
MO-2 and four teeth at MO-3 were seized.
The evidence of all these prosecution witnesses
corroborates the evidence of PW-9 (CW-10) - K.M. Jayaram,
who is the Investigating Officer in this case. Thus, the
alleged incident of accused No.1 to 4 being abetted by
accused Nos.5 to 9, assaulting PW-1, PW-3, PW-4 and PW-6
with hands, wooden cart peg (MO-1) and stone (MO-2)
inflicting grievous injury upon PW-1 and simple injury upon
PW-3, stands proved beyond all reasonable doubts.
Crl.R.P.No.649/2013
c/w.Crl.R.P.No.630/2013
21. Learned Senior Counsel for the petitioners
(accused) in Crl.R.P.No.649/2013 submitted that, even
though the alleged guilt against the petitioners (accused
Nos.1 to 9) is taken to be proved, still, the offence under
Section 326 of the IPC has not been made out, as the
alleged weapons at MO-1 and MO-2 cannot be considered
as dangerous weapons.
In his support, he relied upon the judgment of the
Hon'ble Apex Court in Mathai's case (supra). In the said
case, the Hon'ble Apex Court, while explaining the
ingredients of Section 326 of the IPC, was pleased to
observe, what is dangerous weapon would depend upon the
facts of each case, having regard to the weapon's size,
sharpness etc.
In the case before it, noticing that the alleged weapon
said to have been used was a stone, by the hit of which, the
victim sustained lacerated wound over left posterior parietal
region of head and fracture of the left upper second incisor
tooth involving pulp and root, which were grievous injuries
Crl.R.P.No.649/2013
c/w.Crl.R.P.No.630/2013
in nature, the Hon'ble Apex Court held that, having regard
to the size of the stone used, it was not covered by the
expression "dangerous weapon". Hence, the accused were
held liable to be convicted under Section 325 instead of
Section 326 of the IPC.
22. In the instant case, in Criminal Revision Petition
No.649/2013, it is only accused No.1 who has made use of
the stone at MO-2 in assaulting PW-1 (CW-1) -
Nagendrappa. It is further established that, accused No.2
made use of wooden cart peg at MO-1 in assaulting PW-6
(CW-5) - Nagaraja. The panchanama at Ex.P-4, the
evidence of both these witnesses show that, those two
weapons were taken out by the accused Nos.1 and 2 from
the spot, as such, they had not come equipped with those
weapons. Further, the panchanama at Ex.P-4 shows that
the stone was of the fist size and the wooden cart peg was
of a length of 2½ ft. As such, a small stone and a small
stick like cart peg, generally, cannot be considered as
dangerous weapons. The nature of assault made by
Crl.R.P.No.649/2013
c/w.Crl.R.P.No.630/2013
accused No.1 and accused No.2, by using those two
weapons also cannot be called as use of those two weapons
in dangerous means. Had really the accused intended to
make use of those two weapons to inflict injuries upon the
victim in dangerous means, then, they would have selected
the other vital organs of the victims for assaulting.
Admittedly, by use of the cart peg at MO-1, even
though PW-3 is shown to have sustained internal pain over
her body, but she did not sustain any external injuries.
Therefore, MO-1 and MO-2 cannot be called as dangerous
weapons and the act of the accused in making use of MO-1
and MO-2 in assaulting the victims also cannot be called as
use of those articles in dangerous means in inflicting
injuries upon PW-1 and PW-3.
However, without noticing these aspects, the Trial
Court blindly held that, the act of the accused persons
attracts Section 326 of the IPC, when in fact, it was
required to hold that it was Section 325 of the IPC that was
applicable. It is only to that limited extent, the impugned
Crl.R.P.No.649/2013
c/w.Crl.R.P.No.630/2013
judgment of conviction passed by the Trial Court in
C.C.No.51/2006 requires interference.
In C.C.No.26/2006 (Crl.R.P.No.630/2013) :
23. Criminal Revision Petition No.630/2013 has arisen
from out of the very same incident, but through a different
complaint which resulted in filing of charge sheet against
four accused persons for the offences punishable under
Sections 323, 324 and 504 read with Section 34 of the IPC.
The said case was tried in C.C.No.24/2006.
24. PW-5 in C.C.No.51/2006 is accused No.3 in
C.C.No.24/2006; PW-4 and PW-2 in C.C.No.24/2006 are
accused No.2 and accused No.9 respectively in
C.C.No.51/2006. The Medical Doctor who treated the
alleged injured in both the cases is the very same Doctor
i.e. Dr.H.G. Suresh. The Investigating Officer in both the
cases is also the very same Police Officer by name
Sri. K.M. Jayaram.
Crl.R.P.No.649/2013
c/w.Crl.R.P.No.630/2013
25. The complainant in C.C.No.24/2006 in his
complaint has given the cause for the alleged altercation as
the same dispute with respect to discharge of bathroom
water. However, he has stated that the accused persons
were letting their bathroom water in such a manner that the
said discharge was percolating into the grain pit of the
complainant located adjoining the drainage. In that
connection, in the afternoon of the date 11-11-2005, the
complainant had talked to Durugappa (Accused No.1) and
requested him to stop the water flowing in their direction.
However, after verbal exchange of few words, they had
kept quiet. On the very same evening, at about 6:00 p.m.,
the said Accused No.1 - Durugappa called him in front of his
house which was on the other side of the road and raising
the issue of flow of Bathroom water, abused him and
initiated a quarrel. By that time, his (accused No.1's) son-
in-law - Basavarajappa (accused No.2) joined them and
taking a stone fallen on the ground assaulted him
(complainant) and caused internal pain. Accused No.1 also
Crl.R.P.No.649/2013
c/w.Crl.R.P.No.630/2013
assaulted him with his hands and legs. At that time, when
his (complainant's) son-in-law Basavarajappa (PW-2)
rushed to his rescue, accused No.3 - Bheemappa who was
nephew of accused No.1, assaulted him with a wooden club
on his head and caused bleeding injury. Accused No.4 -
Gangamma assaulted PW-2 - Basavarajappa with hands.
However, at that time his (complainant's) daughter
Renukamma (PW-3), and one Kabballi Rangappa (PW-4)
came to the spot and pacified the dispute.
26. PW-1 (CW-1) - Sokki Guleppa, PW-2 (CW-2) -
Basavarajappa, PW-3 (CW-3) - Renukamma and PW-4
(CW-4) - Kabballi Rangappa have all supported the case of
the prosecution in their evidence. PW-1 - Sokki Guleppa,
apart from reiterating the contentions taken up by him in
his complaint has specifically stated that, in the incident, all
the four accused persons have jointly assaulted him.
Among them, accused No.2 - Basavarajappa assaulted him
with a stone on his chest and right shoulder and the
remaining accused assaulted him with their hands and legs.
Crl.R.P.No.649/2013
c/w.Crl.R.P.No.630/2013
He further stated that, the accused assaulted his son-in-law
Basavarajappa, who had intervened to rescue him and
accused No.3 - Bheemappa assaulted his son-in-law with a
weapon club on his head and caused injury which was
subsequently treated with two to three stitches. PW-3 -
Renukamma and PW-4 - Kabballi Rangappa also tried to
pacify the dispute. With this, the witness (complainant)
stated that, after the incident, he went to Arasikere
Government Hospital for treatment and also lodged a
complaint with the Police as per Ex.P-1. The witness has
identified the stone and wooden club and got them marked
as MO-1 and MO-2 stating that, it was with those two
weapons, the accused have assaulted them.
PW-2 - Basavarajappa, PW-3 - Renukamma and PW-4
- Kabballi Rangappa have also given their evidence on the
lines of what PW-1 (complainant) has stated in his
evidence.
27. PW-2 - Basavarajappa has stated that when he
rushed to the rescue of his father-in-law (PW-1), he too
Crl.R.P.No.649/2013
c/w.Crl.R.P.No.630/2013
was assaulted by the accused, among whom, the accused
No.3 - Bheemappa assaulted him with a cart peg (club like)
on his head and caused injuries. However, he was rescued
by his wife Renukamma and Kabballi Rangappa. This
witness also identified MO-1 and MO-2.
28. PW-3 - Renukamma and PW-4 - Kabballi
Rangappa have stated in their evidence that, they were the
eye witnesses to the incident. Both of them have stated
that they rushed to the rescue of PW-1 and PW-2 and
pacified the dispute. Both these witnesses have identified
MO-1 and MO-2, in the Court.
PW-1, PW-2, PW-3, PW-4 have identified the accused
in the Court stating that, it was them who assaulted PW-1
and PW-2.
All these four witnesses were subjected to a detailed
cross-examination from the accused' side, however, nothing
favourable to the accused could be elicited in their cross-
examination. On the other hand, the witnesses have given
some more details about the incident and their presence at
Crl.R.P.No.649/2013
c/w.Crl.R.P.No.630/2013
the time of the incident, as such, nothing could be brought
out from the accused' side to suspect the evidence of PW-1,
PW-2, PW-3 and PW-4.
29. PW-6 (CW-5) - Lingappa, though was supposed to
state about the Investigating Officer drawing the scene of
offence panchanama as per Ex.P-2 in his presence and
recovering MO-1 and MO-2 from the spot, however, he did
not support the case of the prosecution. Even after treating
him hostile, the prosecution could not gain any support in
its favour by him.
30. PW-5 (CW-6) - Dr. Suresh H.G., the then Medical
Officer in Public Health Centre, Arasikere, has stated that,
on the date 11-11-2005, at about 6:30 p.m., he examined
Sokke Guleppa (PW-1) and noticed internal pain on the
right shoulder and chest region. He opined that it was a
simple injury. Accordingly, he has issued a Wound
Certificate as per Ex.P-3.
Crl.R.P.No.649/2013
c/w.Crl.R.P.No.630/2013
The same witness further stated that, thereafter he
also examined Basavarajappa (PW-2), who too had come
with the same history of assault as was Sokke Guleppa
(PW-1), and noticed a lacerated wound on the middle of the
forehead and measuring 1 cm. x 1 cm. He opined that the
said injury was simple in nature and it was fresh.
Accordingly, he has issued a Wound Certificate as per
Ex.P-4.
Though he admitted a suggestion in his cross-
examination from the accused' side that, the above type of
injuries are possible if two persons working opposite to each
other by using a spade and pickaxe in which one person
falls on the other due to loss of balance. However, except
making that suggestion, the accused have not substantiated
to show the same to arrive at a conclusion that PW-1 and
PW-2 had sustained injuries other than in the manner as
stated by them. Therefore, the alleged defence of PW-1
and PW-2 sustaining injuries in an accidental manner
cannot be believed.
Crl.R.P.No.649/2013
c/w.Crl.R.P.No.630/2013
31. The evidence of PW-1, PW-2, PW-3 and PW-4
makes it very clear that, with regard to the very same
reason of flow of bathroom water, an altercation had taken
place between the accused in both the cases, in which,
apart from exchange of verbal words, both parties have also
assaulted each other. Incidentally, both sides have made
use of similar weapons like stone and wooden cart
peg/wooden club.
The evidence of PW-1, PW-2, PW-3 and PW-4 would
further go to show that, PW-1 and PW-2 sustained simple
injuries by the act of accused Nos. 1 to 4. Since accused
Nos.1 to 4 joined together in assaulting PW-1 and PW-2,
they have shared common intention. Thus, it is established
that the accused Nos. 1 to 4 in C.C.No.24/2006 are also
guilty of assaulting PW-1 and PW-2 inflicting simple injuries
upon them.
Even in this case also, the weapons at MO-1 and MO-2
which are shown to be a stone and a wooden club are
described as a raw stone of fist size and wooden club of a
Crl.R.P.No.649/2013
c/w.Crl.R.P.No.630/2013
length of 2 ½ feet. Since it is alleged in the case and
counter case that, the weapons were picked from the spot,
there is all the possibilities of the size of the stone and the
wooden cart peg/wooden club being almost similar. Thus,
by virtue of the reasoning given above in Criminal Revision
Petition No.649/2013 (C.C.No.51/2006) that, the nature
and description of the Material Objects would prevent them
from holding them as "dangerous weapons", the same
reasoning applies in the case on hand also, i.e. in Criminal
Revision Petition No.630/2013 (C.C.No.24/2006).
Similarly the act of the accused persons, more
particularly of accused No.2 and accused No.3 in assaulting
PW-1 and PW-2 with a stone (MO-1) and a wooden club
(MO-2) cannot be held as making use of those weapons in
dangerous means to inflict injuries upon them. As such, the
act of accused can only be held as voluntarily causing hurt.
32. However, the Trial Court, merely noticing that the
alleged weapons used by them were a stone and a wooden
Crl.R.P.No.649/2013
c/w.Crl.R.P.No.630/2013
cart peg/wooden club, held them to be dangerous weapons
and convicted the accused persons even for the offence
punishable under Section 324 of the IPC also. The said
finding of the Trial Court which was further confirmed by the
Sessions Judge's Court, holding the accused guilty even for
the offence punishable under Section 324 of the IPC proves
to be erroneous. It is only to the extent of setting aside of
the said portion of the finding of both the Courts, the
interference by this Court in the impugned judgments is
warranted.
The sentence of imprisonment ordered by the Trial
Court in both the cases for the proven guilt except for the
offence punishable under Section 326 of the IPC in
C.C.No.51/2006 (Crl.R.P.No.649/2013) and for the offence
punishable under Section 324 of the IPC in C.C.No.24/2006
(Crl.R.P.No.630/2013), which guilt having been proved and
in view of the analysis made above, being proportionate to
the gravity of the proven guilt, the same would not warrant
any interference at the hands of this Court.
Crl.R.P.No.649/2013
c/w.Crl.R.P.No.630/2013
Accordingly, I proceed to pass the following:
ORDER
[i] The Criminal Revision petition
No.649/2013 is allowed-in-part;
The impugned judgment of conviction and
order on sentence dated 18-01-2010, passed in
C.C.No.51/2006, by the learned Civil Judge
(Jr.Dn.) and Judicial Magistrate First Class at
Harapanahalli, Davanagere District, only in so
(petitioners 1 to 5 and 7 to 9 in Criminal Revision
Petition No.649/2013) guilty for the offence
punishable under Section 326 read with Section
149 of the IPC, is modified, thus while acquitting
the said accused Nos.1 to 5 and 7 to 9 for the
offence punishable under Section 326 of the
Indian Penal Code, 1860, simultaneously, they
i.e. accused Nos.1 to 5 and 7 to 9 are held guilty
for the offence punishable under Section 325 of
Crl.R.P.No.649/2013
c/w.Crl.R.P.No.630/2013
the IPC read with Section 149 of the IPC, instead
of Section 326 of the IPC.
Accordingly, the sentence of imprisonment
ordered for the offence punishable under Section
326 of the IPC read with Section 149 of the IPC
and 7 to 9 are sentenced to undergo simple
imprisonment for a period of one and a half
years each and to pay a fine of a sum of `500/-
each, in default of payment of fine, to undergo
an additional simple imprisonment for a period of
three months each.
and 7 to 9 for the offences punishable under
Sections 143, 148, 323, 324, 114, 504 read with
Section 149 of the IPC and also order on
sentence ordered for those offences against
Crl.R.P.No.649/2013
c/w.Crl.R.P.No.630/2013
them remains as it is, without any alteration or
modification.
[ii] Criminal Revision Petition No.630/2013
stands allowed-in-part;
The impugned judgment of conviction and
order on sentence dated 18-01-2010, passed in
C.C.No.24/2006 by the learned Civil Judge
(Jr.Dn.) and Judicial Magistrate First Class at
Harapanahalli, Davanagere District, only in so far
as holding the accused Nos.1 to 4 (petitioners 1
to 4 in Criminal Revision Petition No.630/2013)
guilty for the offence punishable under Section
324 read with Section 34 of the IPC, is set aside
and the said accused Nos.1 to 4 are acquitted of
the said offence.
However, the conviction of the accused
Nos.1 to 4 for the offence punishable under
Section 323 read with Section 34 of the IPC and
Crl.R.P.No.649/2013
c/w.Crl.R.P.No.630/2013
also the order on sentence ordered for the said
offence against them remains as it is, without
any alteration or modification.
[iii] The accused Nos.1 to 5 and 7 to 9 in
C.C.No.51/2006, who are the petitioners in
Crl.R.P.No.649/2013 shall voluntarily surrender
before the learned Civil Judge (Jr.Dn.) and
Judicial Magistrate First Class at Harapanahalli,
Davanagere District, within forty five (45) days
from today and to serve the sentence of
imprisonment ordered against them.
However, the order on sentence for the
offence punishable u/s 323 r/w 534 of IPC
ordered by the learned Civil Judge (Jr.Dn.) and
Judicial Magistrate First Class at Harapanahalli,
Davanagere District, against accused Nos.1 to 4
in C.C.No.24/2006, who are the petitioners in
Crl.R.P.No.630/2013, stands confirmed.
Crl.R.P.No.649/2013
c/w.Crl.R.P.No.630/2013
Registry to transmit a copy of this order along with the
Trial Court and Sessions Judge's Court's records to the
concerned Courts, immediately so as to enable the
concerned Trial Court to proceed further in the matter in
accordance with law.
Sd/-
JUDGE
BMV*
