Adappa Hanamantappa Taralabenci vs State Of Karnataka
2022 Latest Caselaw 7627 Kant

                                       -1-




                                               CRL.A No. 2559 of 2012


                      IN THE HIGH COURT OF KARNATAKA,
                               DHARWAD BENCH

                     DATED THIS THE 30TH DAY OF MAY, 2022

                                    BEFORE

                    THE HON'BLE MR JUSTICE V.SRISHANANDA

                     CRIMINAL APPEAL NO.2559 OF 2012 (C)

             BETWEEN:

                ADAPPA HANAMANTAPPA TARALABENCI,
                AGE: 55 YEARS, OCC: TRAINING TEACHER,
                R/O. SADALAGA, TQ: CHIKKODI,
                DIST: BELGAUM.

                                                         ...APPELLANT
             (BY SRI NELENDRA D GUNDE, ADV.)

             AND:

                STATE OF KARNATAKA,
                BY SADALAGA POLICE STATION,
                CHIKKODI, BELGAUM,
                REPTED. BY THE STATE PUBLIC PROSECTUOR,
                HIGH COURT BUILDING,
                DHARWAD-580009.

                                                        ...RESPONDENT
             (BY SRI RAMESH CHIGARI, HCGP)
MANJANNA
E                 THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.
             SEEKING TO SET ASIDE THE JUDGEMENT OF CONVICTION AND
             SENTENCE DATED 19.01.2012, PASSED BY THE SPECIAL III-
Digitally
signed by    ADDL.SESSIONS JUDGE, BELGAUM, IN SPL.CASE NO.69/2011,
MANJANNA E   THEREBY CONVICTING THE APPELLANTS UNDER SECTION 324
             OF IPC, AND SENTENCING HIM TO SUFFER SIMPLE
             IMPRISONMENT FOR THREE MONTHS AND TO PAY FINE A
             RS.5,000/- WITH A DEFAULT CLAUSE.
                             -2-




                                        CRL.A No. 2559 of 2012




     THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                       JUDGMENT

Heard learned counsel Sri Neelendra D.Gunde

appearing for the appellant and learned High Court

Government Pleader appearing for respondent-State.

2. This appeal is filed by the appellant-accused

who has been convicted for the offence punishable under

Section 324 of the Indian Penal Code ("IPC" for short) by

judgment dated 19.01.2012 by the learned Special (III

Additional Sessions) Judge, Belagavi ("the trial Court" for

short) in Spl.Case No.69/2011 and sentenced to undergo

simple imprisonment for the period of 3 months and to

pay fine of Rs.5,000/- with default sentence.

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

Upon a complaint lodged by one Sri Vinod Dhanpal

Kamble, Sadalga Police registered a case in Crime

No.58/2011 for the offence punishable under Sections 326

CRL.A No. 2559 of 2012

& 504 of IPC and Section 3(1)(X) 2(V) of the Schedule

Castes & The Schedule Tribe (Prevention of Atrocities) Act,

1989 ("SC/ST Act" for short) on 29.04.2011.

4. Gist of the complaint averment reveals that;

the complainant is a ITI Student in a Government ITI

College. On 29.04.2011 at about 4.00 p.m. he had been

to the college for attending practical classes and when he

was learning in the college computer, the accused came

there and abused him in filthy language by taking out his

caste name in public view and also assaulted him with iron

rod and caused injuries.

5. Based on the said complaint, the police after

registering the case, investigated the matter in detail and

filed charge sheet for the offence punishable under

Section 324 and 504 of IPC read with Section 3(1)(x) of

SC/ST Act.

6. The presence of the accused was secured

before the Special Court and charges were framed.

Accused pleaded not guilty and therefore, trial was held.

CRL.A No. 2559 of 2012

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

the prosecution in all examined 16 witnesses as PWs.1 to

PW.16 and prosecution relied on 28 documents which are

exhibited and marked as Exs.P.1 to P.28 besides being

marking two material objects namely iron rod and

bloodstained T-shirt as MOs.1 & 2.

8. Defence also marked portion of the statement

of CW.1, CW.7, CW.8 and CW.9.

9. On conclusion of the prosecution evidence, the

accused statement as contemplated under Section 313 of

Cr.P.C. was recorded, wherein the accused has denied all

the incriminatory circumstances that were put to him.

10. However, accused did not choose to file any

written submission as is contemplated under Section

313(5) of Cr.P.C nor led any defence evidence.

11. Thereafter, learned trial judge heard the parties

and by judgment dated 19.01.2012, acquitted the accused

for the offence punishable under Section 504 of IPC read

with Section 3(1)(x) of SC/ST Act and convicted the

CRL.A No. 2559 of 2012

accused for the offence punishable under Section 324 of

IPC and sentenced him as referred to supra.

12. Being aggrieved by the same, the accused has

preferred this appeal. In the appeal memorandum, the

following grounds have been raised.

"6. That the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge is contrary to law, facts and evidence on record and as such, the same is liable tobe set aside.

7. It is submitted that the entire case of the prosecution is based on the testimony of the interested witnesses. In the absence of corroboration to the evidence of the interested witnesses, the learned Sessions Judge ought to have disbelieved the case of the prosecution in toto and ought to have acquitted the accused.

8. It is submitted that the particular evidence is contrary to the medical evidence as to the material particulars and as such, the evidence of witnesses is able to be discharged and Accused is entitled for an order of acquittal.

9. It is submitted that even if the evidence of the witnesses were to be accepted by the learned Sessions Judge for the purpose of recording the impugned judgment and order of conviction and sentence, there are number of material discrepancies which goes to the very root of the case, making the evidence of the witnesses to be discarded in toto Under these circumstances, the

CRL.A No. 2559 of 2012

learned Sessions Judge ought to have disbelieved the case of the prosecution and ought to have acquitted the Accused.

10. It is submitted that the learned Sessions Judge accepting the case of the Accused in part acquitted the Accused for the offences punishable under Sections 3 (1)( x) of SC & ST Act, and 504 of IPC on the same allegations under those Sections as having not proved, has committed a grave error in convicting the Accused for other offences. The learned Sessions Judge ought to have disbelieved the entire case of the prosecution and ought to have acquitted the Accused.

11. It is submitted that when the learned Sessions Judge disbelieves the case of the prosecution with regard to injuries on PSs 1, as it could be seen from the available material that the complainant himself had assaulted the appellant and in order to safeguard himself has used this complaint as weapon on the appellant, the learned Sessions Judge ought to have disbelieved the case of the prosecution in toto. The learned Sessions Judge ought to have held that the prosecution story is full of concoctions and manipulations and ought to have disbelieved the entire case of the prosecution and ought to have acquitted the Accused.

12. It is submitted that though the learned Sessions Judge records a finding that there is no evidence or materials with regard to the injuries sustained by the complainant as the alleged MO-1 which deemed to have been used by the Accused was produced by the complainant himself at the later stage of investigation, as the same would create doubt on the prosecution version, and the

CRL.A No. 2559 of 2012

learned trial Judge has committed an error in convicting and sentencing the Accused under Section 324 of IPC.

13. The majority of the prosecution witnesses are all related and interested witnesses and their evidence was not credit worthy. In that view of the matter, acceptance of their evidence and convicting the Appellant is not proper.

14. The Trial Court has failed to notice that there were several improvements in the case of the prosecution from stage to stage so as to implicate the Appellant as he was a strict officer and was supervising on the other colleagues of the said Govt. I.T.I.

15. Further it is submitted that, it ought to have been seen by the learned Sessions Judge that the evidence of the eye witnesses - PW.1, 2, 5, 9 to 11 was unnatural, artificial besides being not trustworthy. Accepting the evidence of such eye witnesses and convicting the Appellants is not proper.

16. It is submitted that the evidence of the eye witnesses is further not corroborated with medical evidence and other circumstantial evidence and as such, the evidence of the eye witnesses was not acceptable.

17. The learned Sessions Judge ought to have noticed that all the eye witnesses examined by the prosecution were related, interested and inimical witnesses. Their evidence was full of contradictions and concoctions thereby rendering their entire evidence unacceptable.

CRL.A No. 2559 of 2012

18. It is submitted that the case of the prosecution with regard to the motive was not established by the prosecution. In that view of the matter, the case of the prosecution was not worthy of acceptance.

19. It is submitted that the learned Sessions Judge has disbelieved that part of the evidence which clearly discloses the fact that the complainant has assaulted the appellant and the appellant got injured and to that effect injury certificate was also produced by the prosecution, but however the learned trial judge has failed to appreciate the legal aspect that the prosecution has to explain the injury on the body of the accused, has committed a grave error in accepting the case of the prosecution only against the Accused on the same set of evidence. In that view of the matter, the conviction of the Appellants is liable to be set aside.

20. The reasons assigned by the learned Sessions Judge, while passing the impugned judgment of conviction and order of sentence are erroneous and as such, he has slipped into an error resulting in substantial miscarriage of justice to the case of the Appellant.

21. Having regard to the facts and circumstances and the evidence un record, the Court below ought to have come to the conclusion that the defence was probable and acceptable and that the Accused was innocent.

22. The entire approach of the Trial Judge while convicting the Appellant is erroneous and as such he has reached a wrong conclusion.

CRL.A No. 2559 of 2012

23. The appreciation of the evidence of the prosecution witness by the Trial Judge is not in its proper perspective and as such, the learned Judge has reached a wrong conclusion and convicted the Appellants.

24. The learned Trial Judge ought to have raised proper probable and inferences on the basis of the material available on record and the inferences that are drawn by the learned Trial Judge are not proper.

25. Viewed from any angle, the impugned judgment of conviction and order of sentence passed by the learned Trial Judge is bad in law and hence, the same is liable to be set aside.

13. Reiterating the above grounds, learned counsel

Sri Neelendra D.Gunde appearing for the appellant

vehemently contended that, framing of charges and

material evidence on record clearly indicate that it is the

complainant who has pushed the accused at the first

instance and accused as a self defence assaulted the

complainant and therefore, the trial Court ought not have

been convicted the appellant for the aforesaid offence and

thus sought for allowing the appeal.

14. He pointed out that the material evidence on

record is hardly sufficient and there is a total improvement

- 10 -

CRL.A No. 2559 of 2012

in the case of the prosecution from the complaint

averments and the same has not been properly

appreciated by the learned trial Court while passing the

impugned judgment and sought for allowing the appeal.

15. Alternatively, learned counsel Sri Neelendra

D.Gunde appearing for the appellant submitted that in the

event of this Court maintaining the conviction and non

consideration of grant of probation by the trial Court and

directly sentencing the accused for a period of 3 months

for the offence punishable under Section 324 of IPC has

resulted in miscarriage of justice and thus sought for

suitable orders to be passed.

16. Per-contra learned High Court Government

Pleader supports the impugned judgment stating that, if

all the contentions raised on behalf of the appellant is

accepted, he should have accepted the incident and his

presence and thereafter words should have pleaded about

the self defence and the appellant having denied the very

incident itself, the question of considering the self defence

- 11 -

CRL.A No. 2559 of 2012

would not come into picture and the same cannot be

countenanced in law and thus sought for dismissal of the

appeal. He pointed out that the complainant has

specifically deposed about the incident and the injuries

found on the body of the complainant is corroborated by

the oral testimony of PW.14-doctor by name Dr.Prakash

Irappa Wali coupled with wound certificate issued by him

vide Ex.P.13. He also pointed out that the material

evidence on record was sufficient enough to attract the

offence under Section 324 of IPC and the very fact that

the learned trial Court has acquitted the accused for the

offence punishable under Section 504 of IPC read with

Section 310 of SC/ST Act. There is clear application of

mind on the part of the learned trial Court while

appreciating the facts of the case and thus, sought for

dismissal of the appeal.

17. Insofar as alternative plea is concerned,

learned High Court Government Pleader submits that, if

this Court for the first time intends to grant probation,

- 12 -

CRL.A No. 2559 of 2012

then report of the probation officer is necessary and

therefore, sought for dismissal of the appeal in toto.

18. In view of the rival contentions of the parties

the following points that would arise for consideration is.

i. Whether the prosecution is successful in establishing the offence under section 324 of IPC as against the appellant herein?

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

iii. Whether the sentence is excessive?

19. Regarding Point Nos.1 & 2 :- In the case on

hand, the complainant supported the case of the

prosecution in toto, so also the other prosecution

witnesses namely PW.2, PW.5, PW.6, PW.10 and PW.11.

PW.14 is the doctor who issued Ex.P.12 and P.13. PW.12

is the wound certificate in respect of accused and PW.13 is

the wound certificate in respect of the complainant.

20. The complainant has reiterated the averments

made in the complaint and he has withstood the searching

cross-examination on behalf of the accused and it has

- 13 -

CRL.A No. 2559 of 2012

been found from the material evidence on record that the

complainant was very much present in the Government

ITI College on 29.04.2011 at about 4.00 p.m. in the

computer lab and he was working in the computer. At that

juncture, alleged altercation has taken place. It is the

defence of the accused that it is the complainant who is

the aggressive party who pushed the accused at the first

instance and fell-down. In this regard, learned counsel for

the appellant Sri Neelendra D.Gunde invited the attention

of this Court to the charge framed against the appellant

herein. On perusal of the charge framed against the

appellant it is no doubt from the charge itself that the

complainant has pushed the accused. However, the

accused himself has denied about the said aspect of the

matter while recording the accused statement.

21. It is well settled principles of law that if accused

wants to take the plea of self defence, he must first admit

the incident and thereafter plead for the self defence.

Whereas, in the case on hand, the accused has denied the

- 14 -

CRL.A No. 2559 of 2012

incident itself, plea of self defence would gets no

insignificance. When such plea of self defence is taken out

from the record, there is admittedly an altercation that

has taken place and accused was also injured in the very

same incident and there is no counter complaint lodged by

the accused herein against the complainant which exposes

the guilty nature of the accused in the incident. Why

accused did not choose to file a complaint against the

complainant if the complainant is the aggressive party is

also a question that remains un-answered. Under such

circumstances, the trial Court placing reliance on the

injured witnesses namely the complainant which

supported by the medical evidence also corroborated by

other circumstantial witnesses, this Court does not find

any incriminatory materials whatsoever in the findings

recorded by the trial Court that the accused is guilty of the

offence punishable under Section 324 of IPC.

22. Further, as could be seen from the impugned

judgment, learned trial Court has recorded an order of

- 15 -

CRL.A No. 2559 of 2012

acquittal in respect of offence under Section 3(1)(x) of

SC/ST Act.

23. The State has not preferred any appeal against

the said finding of the learned trial Court so also the trial

Court acquitted the accused for the offence punishable

under Section 504 of IPC.

24. The recording of acquittal in respect of the

charge under Section 504 of IPC read with Section 3(1)(x)

of SC/ST Act against the appellant herein is concerned,

this Court is of the considered opinion that the trial Court

after critically examining the material evidence on record

has formed a definite opinion that because of the

aggressive nature of the accused, the complainant

suffered injuries as is found in Ex.P.13 and therefore, this

Court is of the considered opinion that even after re-

appreciation of material evidence on record, that the

appellant is guilty of the offence punishable under Section

324 of IPC which has been rightly appreciated by the

learned trial Court in the impugned judgment.

- 16 -

CRL.A No. 2559 of 2012

Accordingly, in view of the forgoing discussion, point No.1

is answered in the affirmative and point No.2 in the

negative.

25. Regarding Point No.3 :- It is pertinent to

note that grant of probation was urged by the appellant

herein before the trial Court itself. However, there is no

proper reason forthcoming in the impugned judgment with

regard to non grant of probation. A passing remark was

made by the learned trial Court that "such lenient view

cannot be taken against the appellant".

26. It is well settled principles of law that the role

that is to be played by the trial Court while recording an

order of conviction is altogether different from the role to

be played by the trial Court while sentencing the accused.

27. In this regard, this Court gainfully places its

reliance on the decision rendered in the case of

Ramgopal vs. State of Madhya Pradesh, reported in

2021 Supreme Court Cases (OnLine) 834, wherein it

was held that the higher courts namely High court and the

- 17 -

CRL.A No. 2559 of 2012

Supreme Court will have power under Section 482 of

Cr.P.C and under Article 142 of the Constitution of India,

are having wider scope than quashing further proceedings

in a given case.

28. Applying the legal principles of law enunciated

in the aforesaid decision to the case on hand, it is crystal

clear that the trial Court failed has to discharge its

obligation while sentencing the accused and not properly

considering the plea of grant of probation.

29. Admittedly, the accused-appellant is a first time

offender. Therefore, the trial Court is duty bound to

consider the plea of grant of probation. The trial Court has

failed to do so. This Court being the First Appellate Court

can very well accord the same benefit if the appellant is

entitled to.

30. No doubt, learned High Court Government

Pleader contended that, if this Court feels to grant

probation, report from the probation officer is necessary.

Admittedly, the incident has taken place in the year 2011.

- 18 -

CRL.A No. 2559 of 2012

There are no complaints against the accused herein for all

these years. Only for the purpose of obtaining the report

from the probation officer, if the matter is now remanded

to the trial Court, no useful purpose would be served and

it would only result in futile exercise. Directing the

appellant to execute a bond in a sum of Rs.25,000/- for

his good behavior which shall be in force for a period of 2

years and directing the appellant to pay a fine of

Rs.20,000/- instead of Rs.5,000/- as ordered by the trial

Court for the offence punishable under Section 324 of IPC

and out of the fine amount a sum of Rs.15,000/- is

ordered to be paid as compensation to the PW.1 ends of

justice to be met. Accordingly point No.3 is answered and

the following order is passed.

ORDER

The Criminal Appeal is allowed in part.

While maintaining the conviction of the accused for the offence punishable under Section 324 of IPC, the order of sentence passed by the Trial Court against the appellant to undergo imprisonment for a period of 3

- 19 -

CRL.A No. 2559 of 2012

months is hereby set aside instead the appellant-accused is hereby directed to execute a bond in a sum of Rs.25,000/- for his good behavior, which shall be in force for a period of 2 years along with one surety for the likesum and also to pay a fine of Rs.20,000/- instead of Rs.5,000/- as ordered by the trial Court.

Out of the fine amount a sum of Rs.15,000/- shall be paid as compensation to PW.1 under due identification.

ime is granted for the appellant to deposit the balance fine amount of Rs.15,000/- and to execute the bond till 30.06.2022.

If the fine amount is deposited, it is needless to emphasise that the appellant would be entitled for the benefit under Section 12 of P.O.Act.

Office is directed to return the trial Court records along with copy of this order.

Sd/-

JUDGE

EM