Kareppa S/O Yalagurdappa ... vs State Through Deputy ...
2023 Latest Caselaw 1525 Kant

       IN THE HIGH COURT OF KARNATAKA
              KALABURAGI BENCH

   DATED THIS THE 23RD DAY OF FEBRUARY, 2023

                      PRESENT

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

                        AND

THE HON'BLE MR. JUSTICE T.G. SHIVASHANKARE GOWDA

        CRIMINAL APPEAL NO.3623/2013

BETWEEN:

KAREPPA S/O YALAGURDAPPA
KARABHIMAPPANAVAR,
AGE 42 YEARS, OCC AGRICULTURE,
R/O AMARGOL NOW AT MADARI VILLAGE,
TQ. MUDDIBIHAL,
DIST. BIJAPUR-586101.            ... APPELLANT

(BY SRI HARSHAVARDHAN R.MALIPATIL, ADVOCATE)

AND:

STATE THROUGH DEPUTY SUPERINTENDENT OF
POLICE,
BASAVAN BAGEWADI SUB-DIVISION.   ... RESPONDENT

(BY SRI PRAKASH YELI, ADDL. SPP)

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C., PRAYING TO ALLOW THIS APPEAL BY
SETTING ASIDE THE JUDGMENT DATED 31.10.2013 IN
SPECIAL CASE NO.17 OF 2012 ON THE FILE OF IIND ADDL.
                                                                CRL.A.3623/2013
                                      2



 SESSIONS JUDGE AT              BIJAPUR,          AND     CONSEQUENTLY
 ACQUIT THE ACCUSED.

      THIS APPEAL HAVING BEEN HEARD THROUGH
 PHYSICAL HEARING / VIDEO CONFERENCE AND RESERVED
 FOR JUDGMENT ON 12.01.2023, COMING ON FOR
 PRONOUNCEMENT      OF    JUDGMENT    THIS   DAY,
 T.G.SHIVASHANKARE GOWDA, J., DELIVERED THE
 FOLLOWING:

                              JUDGMENT

This appeal by the accused against the judgment

of conviction and order of sentence dated 31.10.2013 in

Special Case No.17/2012 on the file of the II Additional

Sessions Judge, Bijapur ('the Trial Court' for brevity).

2. The parties shall be referred to as per their

status before the trial court for the sake of

convenience.

3. Briefly stated the facts are that, the accused

and his son-in-law Lagamanna as well as the victim of

this case viz., PW-2/Shanthappa are the fellow

residents of Madari Village, Muddebihal Taluk of Bijapur

District. On 04.06.2012 at about 9.30 p.m., the CRL.A.3623/2013

accused and his son-in-law Lagamanna were

quarrelling with each other in the village. PW-2 being

a person known to them intervened and pacified the

quarrel and returned back to his house. The accused

got enraged for such intervention, went to house of

PW2 about 10.15 p.m., armed with an axe, abused and

insulted him taking his caste name. The accused was

advised, pacified and sent back by PW-2. While going

away, the accused threatened that he will not spare

him. Thereafter at about 10.30 p.m., PW-2 was

sleeping in the land of one Gaddeppa Sangappa Tigali

guarding herd of sheep. The accused came there armed

with axe and sickle with an intention to commit his

murder, took out a quarrel, abused him in filthy

language, inflicted injuries on his back and left hand,

causing him grievous hurt and made attempt to commit

his murder. PW-2 informed this to his father-in-law

PW-5/Laxman, who set the law into motion by filing the

complaint. The accused was arrested and subjected to CRL.A.3623/2013

judicial custody. PW-13/Vithal Jagali, Dy.S.P. has

investigated and charge-sheeted the accused.

4. The accused stood for trial for the offences

under Sections 3(1)(x) and 3(2)(v) of the Scheduled

Castes and the Scheduled Tribes (Prevention of

Atrocities) Act, 1989 ('the Act of 1989' for brevity) and

Section 307 of IPC.

5. The prosecution relied on the evidence of PWs-

1 to 14, Exs.P1 to P19 and M.Os.1 to 3. The Trial Court

by impugned judgment convicted the accused for the

offences under Section 326 of IPC and Sections 3(2)(v)

& 3(1)(x) of the Act of 1989. He was sentenced to

undergo simple imprisonment for six months for the

offence under Section 3(1)(x) of the Act of 1989 and

Rigorous Imprisonment for life and to pay fine of

Rs.10,000/- for the offence under Section 326 of IPC

read with Section 3(2)(v) of the Act of 1989 and in CRL.A.3623/2013

default of payment of fine, simple imprisonment for six

months with both the sentences to run concurrently.

6. Aggrieved by the judgment of conviction and

order of sentence, the accused is before this court.

7. It is the contention of the accused that there

was no proper appreciation of the narration made by

PW-2; complaint was filed by PW-5 though PW-2 was in

good state of mind and health. PW-2 is lone witness,

his evidence is inconsistent and contrary to the

statement made before the Police. Before the Police,

PW-2 stated that the weapon used was axe whereas,

the weapon of offence was sickle. These inconsistencies

are not considered by the Trial Court. Except PW-2,

PW-5, PW-7 and PW-13, the rest of the witnesses have

not supported the prosecution. Inspite of it, the Trial

Court has committed an error in relying on the

evidence of these unreliable witnesses.

                                                   CRL.A.3623/2013




     8.   We    have    heard             the   arguments      of

Sri.Harshavardhan R.Malipatil, learned counsel for the

accused and Sri.Prakash Yeli, Addl.SPP, for the

complainant.

9. It has been argued by the learned counsel for

the accused that in the quarrel between accused and

his father-in-law PW-2 interfered as an unwanted

guest. PW-2 voluntarily interfered, assaulted the

accused and there was no occasion for the accused to

abuse PW-2 or taking the name of his caste. The

unknown incident in the midnight near the sheep herd

was converted into an incident of attempt to commit

murder in the background of quarrel. There are no

eyewitnesses to the incident, medical evidence did

point out whether there was any danger to the life of

PW-2 in order to convict him for life sentence. There is

inconsistency in the evidence of PW-2, PW-5 and PW-7

regarding accused insulting PW-2 by using the name of CRL.A.3623/2013

his caste. There are omissions, commissions and

contradictions, which have to benefit the accused and

sought for extension of benefit of doubt and acquittal of

the accused.

10. On the contrary, learned Addl.SPP has

contended that PW-2/Shanthappa is the victim for the

reason of his intervention to pacify the quarrel. The

accused got enraged went near the house of PW2,

abused and insulted him taking the name of his caste.

At 10.35 p.m., he had gone to PW-2, who was sleeping

near the herd of sheep, made an attempt to commit his

murder using sickle. Fortunately, PW-2 escaped from

the assault, but sustained grievous hurt on his forearm.

Sufficient evidence is placed to explain the ingredients

of the offences. Merely because some of the witnesses

have turned hostile will not affect the prosecution case,

PW-2 has supported the prosecution corroborated by

the Medical evidence and Investigating Officer/PW-13.

CRL.A.3623/2013

The Trial Court has rightly convicted the accused and

awarded correct sentence and supported the impugned

judgment.

11. We have given our anxious consideration to

the arguments addressed on both sides and perused

the materials on record.

12. The prosecution relied upon the direct

evidence from PW-2. Soon after the incident, PW-2

informed it to PW-5, who set the law into motion and

PW-7/Mahantawwa, wife of PW-2, who witnessed

accused insulting PW-2. In view of this, let us examine

the evidence of the prosecution.

13. PW-1/Sheriffsab Nadaf is the panch witness to

Ex.P1 and seizure of material objects in M.Os.1 to 3/

axe, sickle and footwear. His testimony shows, seizure

of M.Os.1 to 3 under Ex.P1/mahazar at the place of

incident and taking of photograph at Ex.P2 between

10.00 to 11.00 a.m. The cross-examination of PW-1 CRL.A.3623/2013

demonstrates that he knew nothing about the contents

of Ex.P1 as well as M.Os.1 to 3. He was not aware

where the mahazar was drawn, in what connection,

M.Os.1 to 3 were seized. PW-1 though speaks about

the presence of PW-9, we found no whisper from PW-9

about mahazar and seizure.

14. PW-2/Shanthappa Madar is the star witness to

the case. His evidence shows that one year ago

(examined on 5.7.2013) at about 9.00 p.m., there was

a quarrel between PW-3/Kanakappa and accused. He

had intervened, pacified and advised them. In that

incident, he and accused both assaulted each other,

accused abused him by taking the name of his caste.

At about 10.00 p.m. when he was sleeping near the

sheep herd, accused came and assaulted on his left

forearm by means of sickle/M.O.2 and M.O.1/axe. He

has suffered injury on his back and left hand. He

returned home, went to Police Station, from there he CRL.A.3623/2013

was taken to hospital. PW-9/Bailappa, PW-

3/Kanakappa and PW-4/Siddappa have witnessed the

accused insulting him in the name of his caste and it is

they, who pacified the quarrel between him and

accused at the first instance.

15. PW-3/Kanakappa and PW-6/Basappa Madar

are the eye witnesses for the quarrel at first instance.

Before the court, on oath, they turned hostile, did not

support the prosecution and denied their previous

statement as per Exs.P3 and P4. They denied the

aspect of accused insulting PW-2 taking the name of

his caste. PW-6/Basappa, PW-8/Shantawwa, PW-

10/Yamanappa and PW-11/Mukkappa Madara are the

other eyewitnesses to the incident of first instance.

Before the court on oath they did not stand in support

of the prosecution. They denied their previous

statements as per Exs.P6, Ex.P7, Ex.P9 and Ex.P11

respectively. Among these witnesses, PW-

CRL.A.3623/2013

11/Mukkappa Madara speaks little about the quarrel

between the accused and PW-2 in front of the latter's

house.

16. PW-5/Laxmana Madara is the father-in-law of

PW-2, who is the complainant. His testimony shows

that 1½ years ago (examined on 31.07.2013) between

10.00 and 10.30 p.m., there was a quarrel between the

accused and PW-3/Kanakappa, PW-2 intervened and

pacified them. The accused objecting his intervention

assaulted PW-2 by means of chappal. The accused

followed him to his house and abused him in foul

language using the name of his caste and returned

back. Thereafter PW-2 went to sleep near the sheep

herd in the land of one Gaddeppa Sangappa Tigali.

There also the accused followed PW-2, assaulted him

by means of sickle and inflicted injury on his left hand.

When PW-2 was awaken, the accused escaped from the

spot. Since PW-2 informed him about the incident, he CRL.A.3623/2013

took him to the hospital and later filed a complaint to

the Police as per Ex.P5.

17. PW-7/Mahantawwa is the wife of PW-2. Her

testimony shows that 1½ years ago (examined on

31.07.2013) at about 9.00 p.m., there was a quarrel

between the accused and PW-3/Kanakapa near her

house. PW-2 went to pacify them, accused abused him

by taking the name of his caste and assaulted him by

means of chappal, she brought PW-2 to her house.

Thereafter, accused came to her house and shouted

against PW-2. When she informed about PW2 going to

sleep near sheep herd, accused went near sheep herd,

inflicted injuries on the left forearm of PW-2 by means

of sickle. At about 10.00 p.m. PW-2 returned home,

informed about the said incident and thereafter they

took him to the hospital in a jeep and complaint was

filed to Police by PW-5. According to her, PW-9 and

PW-11 have witnessed the accused insulting her CRL.A.3623/2013

husband and assaulting him by means of chappal at the

first instance, which they did not support her.

18. PW-12/Thimmappa is the Head Constable,

who was the SHO at Muddebihal Police Station. His

testimony shows that on 05.06.2012 at 1.00 a.m., he

received Ex.P5 complaint of PW-5, registered Ex.P12

FIR and informed it to PW-13.

19. PW-14/Dr.Jagadish Biaradar is the medical

officer of CHC Hospital, Muddebihal. His testimony

shows that on 05.06.2012 about 1.15 a.m., he has

examined PW-2, who came with a history of assault at

10.30 p.m. on 04.06.2012. On examination, he has

noticed the following injuries:

(i) Deep cut lacerated wound present over left forearm, dorsal aspect, measuring 6.5 cm x 2 cm x bone deep, Reddish tendons avulsed, patient unable to flex forearm;

CRL.A.3623/2013

In this regard, he has registered MLC as per Ex.P17. Is

of the opinion that if assault by means of axe or sickle

said injury was possible. He did not speak about the

nature of injury, age of injury and he has not examined

the material objects at M.Os.1 and 2.

20. PW-15/Dr.Mohammed Tahir is the Medical

officer, Bijapur. His testimony shows that on 5.6.2012

at 7.30 a.m., PW-2 was brought to his clinic with a

history of assault on 4.6.2012 at 11.30 p.m. On

examination, he has noticed 2 x 8 cms bleeding injury

on the left forearm with laceration, contusion and pain

on the left forearm. X-ray confirmed the fracture of

radius and ulna on the left forearm. According to him,

the injuries were aged 8 to 10 hours prior to

examination and they were serious in nature. In this

regard, he has issued Ex.P4/injury certificate and is of

the opinion that, if assault by means of sickle or axe,

said injury was possible.

CRL.A.3623/2013

21. This is the weight of the prosecution evidence

in order to bring home the guilt of the accused.

22. Now, the following points arise for our

consideration:

(i) Whether the prosecution is able to explain the intentional insult or intimidation by the accused against PW-2 in the name of his caste?

(ii) Whether the accused has voluntarily caused grievous hurt on the left forearm of PW-2 by means of dangerous weapon sickle ?

     (iii)   Whether      the    quantum        of    punishment
             awarded       by         the     trial     court      is
             proportionate       to     the    gravity      of   the
             offences?

Reg: Point No.(i):

23. In order to explain the offence under Section

3(1)(x) of the Act of 1989, the prosecution is required

to demonstrate that the accused intentionally insulted CRL.A.3623/2013

or intimidated to humiliate a member of a Scheduled

Caste in the place within public view. There is no

dispute that the accused belongs to Kuruba community

and PW-2 belongs to Scheduled Caste community.

PWs-3, 4, 6, 8 to 11, who are the independent eye-

witnesses, have turned hostile. The only evidence

available is PW-2/Shanthappa, the victim, PW-

5/Laxman, the father-in-law and PW-7/Mahantawwa,

the wife of PW-2. We have referred the evidence of

these three witnesses.

24. In Ex.P5/complaint, it is specifically referred

quarrel between the accused and his son-in-law

Lagamanna, PW-2 has interfered, pacified the quarrel

and returned home. PW-2 while taking food in his

house, the accused came with an axe, abused PW-2 in

the name of his caste and insulted him. The accused

was pacified and sent back. The accused followed PW-

2 to the sheep herd and assaulted on his left hand wrist CRL.A.3623/2013

with axe. In support of these allegations, we do not

find any supporting evidence either from PWs-2 and 5

or PW-7. There is a material contradiction between

them as to the alleged incident. Contrary to the

averments made in the complaint on oath, PWs-2, 5

and 7 say that the quarrel was between the accused

and PW-3/Kanakappa. In fact, there was no such

quarrel at any point of time. These witnesses never

referred to the quarrel between the accused and

Lagamanna.

25. It is the evidence of PW-5 and PW-7 that in a

quarrel between accused and PW-3 when PW-2

interfered, accused assaulted him with chappal, but

PW-2 never says it. PW-5 says, when PW-2 was

present in the house, accused came and abused him in

the name of his caste. Contra, we find from PW-7 that

when accused came near the house of PW-2, he was

not present, in his absence, abuse took place.

CRL.A.3623/2013

Interestingly, PW-2 never says that the accused came

near his house, abused him and insulted him in the

name of his caste. PWs-5 and 7 never say the abuse

by the accused against PW-2 in the quarrel, but it was

in the house of PW-2. Same is not so as per PW-2.

This goes to demonstrate that nothing is available in

support of the prosecution that the accused had any

intention to insult PW-2 or did it.

26. As seen from the evidence, they are cordial

people known to each other and it was PW-2, who also

assaulted the accused after pacifying the quarrel for

which there was no objection by the accused. The kind

of words uttered by the accused calling the name of

caste of PW-2 is different from the mouth of PWs-2, 5

and 7, creates doubt whether such words have been

uttered, if uttered, why there is no uniformity. Hence,

contradictions or omissions are forthcoming.

Therefore, finding recorded by the trial court that the CRL.A.3623/2013

accused intentionally insulted PW-2 in the name of his

caste has not been supported by the positive evidence.

What has been mentioned in the complaint is that there

was a cordial relationship in the village, nothing is

explained why the accused had any intention to insult

PW-2 when there was no quarrel between the accused

and Lagamanna. What has been described in the

complaint has been dispelled by the very prosecution

witnesses. The evidence relied by the prosecution does

not prove the ingredients of Section 3(1)(x) and

3(2)(v) of the Act of 1989. Therefore, the finding

recorded by the trial court is perverse, on fact. As

such, there is no justification in convicting the accused

under Section 3(1)(x) of the Act of 1989.

Reg. Point No.2:

27. The charge against the accused is that he has

made an attempt to commit murder of PW-2, but the

evidence speaks differently. None of the witnesses CRL.A.3623/2013

speaks that the accused had any intention to commit

murder of PW-2. As discussed above, the accused had

any intention to insult or intimidate PW-2 in the name

of his caste. The evidence of PW-2 also speaks that

when he was sleeping near the sheep herd, the

accused came and assaulted him by means of sickle on

his left hand. There was no allegation that such an

assault was intended to commit his murder. PWs-5

and 7 are not the eye-witnesses to the alleged incident

of second instance.

28. PW-14/Dr.Jagadish Biaradar, the Medical

Officer of Government Hospital, Muddebihal, on

5.6.2012 at 1.15 a.m., examined PW-2, who was

brought to the hospital by one Basamma with a history

of assault on 4.6.2012 at 10.30 p.m. Before him,

neither the name of the assailant nor weapon is stated.

He has noted the injuries in Ex.P14. This evidence is

not supported by PW-15/Dr.Mohammed Tahir, who CRL.A.3623/2013

examined PW-2 on 5.6.2012 at 7.30 a.m. There is

inconsistency in his evidence as he asserts that PW-2

came straightaway to his hospital at Bijapur and he had

not taken any treatment before coming to him. Even

before PW-15, name of the assailant or the nature of

weapon was not disclosed.

29. On evaluation of evidence of Investigating

Officer i.e., PW-13, we can notice that there are no

eye-witnesses to the incident of second instance,

M.Os.1 and 2/sickle and axe are being carried by the

shepherds, no bloodstains at the spot were noticed

during the spot inspection, no bloodstained clothes of

PW-2 was seized, one Gaddeppa Sangappa Tigali, who

resides near sheep herd, has not been examined. We

also notice, PWs-5 and 7 make lot of improvements in

their evidence, which are denied by the Investigating

Officer that they never stated said facts before him.

CRL.A.3623/2013

Hence, PWs-5 and 7 are interested, it is not safe to rely

on their evidence.

30. If the evidence of PW-2 coupled with that of

PWs-14 and 15 is seen, it is very clear that the accused

voluntarily caused grievous hurt on the left forearm of

PW-2 by means of sickle, which is a dangerous

weapon.

31. We have carefully perused the reasons

recorded by the trial court. The trial court has

appreciated the evidence of the prosecution to the

extent of hurt. But nowhere we find such an assault

against PW-2 by the accused was keeping in mind PW-

2 belongs to Scheduled Caste, he was having any

intention to insult or intimidate him. The evidence

does not prove the ingredients of the offence under

Section 3(1)(x) of the Act of 1989, but it explains

simple hurt in the background of some quarrel in the

village.

CRL.A.3623/2013

32. Having regard to the fact that there are no

eye-witnesses, we do not find any reason to disbelieve

the evidence of PW-2, which inspires confidence of the

court only to the extent of assault, but allegation of

intentional insult in the name of caste cannot be

accepted for want of evidence. Hence, we are of the

considered opinion that prosecution is able to establish

only to the extent that the accused has voluntarily

caused grievous hurt on the left forearm of PW-2,

thereby the ingredients of the offence under Section

326 of IPC has been explained.

Reg. Point No.3:

33. As we notice from the impugned judgment,

the trial court has accepted that there was an

intentional insult against PW-2 by the accused in the

name of his caste. In view of the discussion made

above, we do not find any substance in the said finding

and such finding recorded by the trial court is a CRL.A.3623/2013

perverse finding on fact and therefore, it cannot be

sustained. In view of the ingredients of the offence

under Section 3(1)(x) and 3(2)(v) of the Act of 1989 is

not explained, the accused is entitled to acquittal for

the said offences.

34. Insofar as the offence under Section 326 of

IPC read with Section 3(2)(v) of the Act of 1989 is

concerned, the trial court has imposed Rigorous

Imprisonment for life and fine of Rs.10,000/-. In view

of the offence under Sections 3(1)(x) and 3(2)(v) of

the Act of 1989 being not established, the court has to

impose sentence for the offence under Section 326 of

IPC only.

35. Section 326 of IPC contemplates the sentence

as follows:

"Imprisonment for life, or with imprisonment of either description for a term which may CRL.A.3623/2013

extend to ten years, and shall also be liable to fine."

The injured was not hospitalized, he was treated as an

outpatient and it was a simple cut of left stynoid

process of ulna, it can also be possible by self-fall, as

admitted by PW-15.

36. Having regard to the gravity of injury and the

accused was in judicial custody for some time during

investigation and also for some time after conviction,

for a period of four months five days, we deem it

appropriate that it is not the case for imposition of

sentence of life imprisonment and it is a case for

reduction of sentence. We feel it appropriate to direct

the accused to undergo simple imprisonment for a

period of two years maintaining the fine imposed by

the trial court in the ends of justice. Accordingly, the

appeal deserves to be allowed in part.

CRL.A.3623/2013

37. In the result, we pass the following;

ORDER

(i) The appeal is allowed in part;

(ii) The accused is acquitted of the offences under Sections 3(1)(x) and 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989;

(iii) Conviction of the accused for the offence under Section 326 of IPC is confirmed, but sentence is reduced directing the accused to undergo simple imprisonment for a period of two years and pay a fine of Rs.10,000/-. In default of payment of fine of Rs.10,000/-, the accused shall undergo simple imprisonment of three months;

(iv)    Out of the fine amount, Rs.8,000/- shall
        be paid to PW-2 as compensation and
        Rs.2,000/-     shall     be     defrayed      as
        prosecution expenses;
                                            CRL.A.3623/2013




    (v)    The accused is entitled to set off, the
           period     he         was      in     judicial
           custody/incarceration; and

    (vi)   Accordingly,    the   impugned      judgment
           stands modified.




                                    Sd/-
                                   JUDGE




                                        Sd/-
                                       JUDGE




KNM/-