Suresh S/O Nagappa @ Guddi Nagappa vs The State Of Karnataka
2023 Latest Caselaw 1059 Kant

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           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 19TH DAY OF JANUARY, 2023

                       BEFORE

    THE HON'BLE MR. JUSTICE V. SRISHANANDA

         CRIMINAL APPEAL No.200031/2016
BETWEEN:

SURESH S/O NAGAPPA @
GUDDI NAGAPPA
AGE: 23 YEARS, OCC: LABOURER
R/O H.NO.T-7/205, KPC COLONY
SHAKTINAGAR, RAICHUR
                                           ... APPELLANT
(BY SRI SHIVANAND V. PATTANASHETTI, ADVOCATE)

AND:

THE STATE OF KARNATAKA
REPRESENTED BY ADDL. SPP
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
(THROUGH CPI SHAKTI NAGAR P.S.
DIST. RAICHUR)
                                         ... RESPONDENT
(BY SRI GURURAJ V. HASILKAR, HCGP)

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION AND ORDER OF SENTENCE DATED 17.02.2016
PASSED BY II-ADDL. DISTRICT & SESSIONS JUDGE, AT
RAICHUR    IN   S.C.NO.14/2015     AND    ACQUIT   THE
APPELLANT/ACCUSED.

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

Heard Sri Shivanand V. Pattanashetti, learned

counsel for the appellant and Sri Gururaj V. Hasilkar,

learned High Court Government Pleader for the

respondent-State.

2. The present appeal is directed against the

judgment of conviction and order of sentence passed

in Sessions Case No.14/2015 dated 17.02.2016 on the

file of II-Additional District and Sessions Judge,

Raichur, whereby the accused has been convicted and

sentenced as under:

"Acting under Section 353 of IPC, the accused is hereby sentenced to undergo R.I. for a period of one year and also to pay fine of Rs.20,000/- and in default to pay the fine to undergo R.I. for a further period of three months.

Acting under Section 504 of IPC, the accused is hereby sentenced to undergo

R.I. for a period of one year and also to pay fine of Rs.5,000/- and in default to pay the fine to undergo R.I. for a further period of two months.

Acting under Section 427 of IPC, the accused is hereby sentenced to undergo R.I. for a period six months and also to pay fine of Rs.5,000/- and in default to pay the fine to undergo R.I. for a further period of two months.

All the sentences run concurrently.

It is further ordered, out of total compensation of Rs.30,000/-, Rs.20,000/- has been allotted as a compensation to the P.W.4 as contemplated u/sec. 357 of Cr.P.C., the rest of the amount of Rs.10,000/- shall be deposit to the state exchequer."

3. Facts in brief for disposal of the present

appeal are as under:

The appellant has been chargesheeted for the

offences punishable under Sections 354, 504, 506,

307, 427 of IPC. According to the chargesheet

papers, the prosecution case is that Prabhulingayya

Hiremath, the Police Sub-Inspector of Shaktinagar

Police Station lodged complaint with Station House

Officer on 06.08.2014 alleging that when he was in

police station at about 6.10 p.m., his staff members

bearing CPC Nos.400 and 466 sent a wireless

message to the effect that a person is standing in

front of Type-VII area complex and he is abusing the

general public and also creating fear in the mind of

the public and he has become uncontrollable and

sought for further police intervention.

Upon such wireless intimation, the complainant

along with other police men went in a Government

Jeep to the place and reached the said place around

6.20 p.m. By then, the said person had picked up

quarrel with the police personnel and others.

Therefore, in order to maintain peace and tranquility,

the said person was taken to the custody and he was

brought to the police station and reached police

station around 6.30 p.m., but the said person

continued the quarrel with the complainant and

abused him in filthy language and took out the plastic

chair and assaulted on the PSI and tried to strangulate

him. At that juncture, the other sub staff who were

present in the police station, rescued the Police Sub-

Inspector from the clutches of the said person. On

further enquiry, the said person revealed his name as

Suresh S/o Nagappa.

4. On the basis of the said complaint, the

Station House Officer registered a case in Crime

No.94/2014 and conducted detailed investigation and

filed chargesheet against the appellant as referred to

supra.

5. The presence of the accused was secured

before the Sessions Court and necessary charges were

framed.

6. Since the accused person did not plead

guilty, the trial was held.

7. In order to bring home the guilt of the

accused, in all, 09 witnesses were examined on behalf

of the prosecution as PWs.1 to 9 and 12 documentary

evidence were relied upon by the prosecution which

were exhibited and marked as Exs.P1 to P12. Red

colour plastic chair was marked on behalf of the

prosecution as M.O.1.

8. On conclusion of recording of the

prosecution evidence, the accused statement as

contemplated under Section 313 of Cr.P.C., was

recorded wherein the accused denied all the

incriminatory materials on record.

9. Thereafter, on behalf of the accused,

Chandrakanth and Mahesh were examined as DWs.1

and 2 who deposed that the accused is innocent and

he has been wrongly detained in the police station and

a false case has been foisted.

10. On conclusion of recording of evidence of

either side, the learned Judge heard the parties in

detail and passed the judgment of conviction and

sentenced the accused as referred to supra.

11. In the very same judgment, in respect of

the offences under Sections 506 and 307 of IPC, the

accused has been acquitted.

12. The State has not preferred any appeal

challenging the acquittal of the accused/appellant for

the offences punishable under Sections 506 and 307

of IPC and therefore, the same has become final.

13. Being aggrieved by the said judgment of

conviction and order of sentence, the appellant has

preferred the above appeal on the following grounds:

x "That, the judgment of conviction and order of sentence passed by the learned judge is contrary to the facts of the case, evidence on record & against the settled principles of law.

x That, the Learned Sessions Judge has committed a serious error in convicting the appellant without properly appreciating the evidence in its right prospective manner.

x That, as per the versions of some of the prosecution witnesses CC TV Camera installed in all the four rooms in the police station, if really the accused made an assault or made threaten to life, it shall be recorded in the CC TV Camera. So, prosecution utterly failed to produce the CC TV Camera to prove their case.

Hence, trial court ought to have given benefit to the appellant and acquitted him.

x That, trial court convicted the appellant only on the say of interested witnesses like PW 3/CW-5, PW-4/CW-1, PW-5/CW- 7, PW-7/CW-11, PW-8/CW-15 and PW-

9/CW-12. So, trial court while appreciating their evidence ought to have taken great care to evaluate their evidence and acquitted the appellant.

x That, PW-1 & PW-2 turned hostile to the spot Mahazar dated: 07-08-2014, so trial court ought to have given benefit of doubt to the appellant.

x That, appellant led two independent defence evidence on behalf of him to disprove the prosecution case but trial Court wrongly appreciated their evidence.

x That, prosecution failed to give any explanation regarding the non examinations of material witnesses.

x That, trial court failed to follow the basic principles of law regarding the proving of prosecution case. It is settled law that, the prosecution must prove their case independently without depending upon the weakness or lacuna on the part of the defence.

x That, trial court ought to have come to conclusion that, I.O. as conducted the tainted investigation.

x That, without admitting the prosecution case, the order of sentence imposed on the appellant is too higher side and exorbitant.

x That, court below not properly put the incriminating circumstances to the appellant while recording 313 statements.

x That, court below ought to have given a benefit of doubt to the appellant.

x That, it is respectfully submitted that, the learned Sessions Judge has not at all appreciated the case of the appellant in the light to human probabilities and the same has vitiated the findings. The reasons assigned by court in convicting the appellant is illegal and incorrect. The same has resulted in miscarriage of justice to the appellant.

x That, the appellant seeks leave of this Hon'ble Court to urge the other grounds at the time of final hearing."

14. Reiterating the above grounds, Sri

Shivanand V. Pattanashetti, learned counsel for the

appellant vehemently contended that it is the

highhandedness of the Police Sub-Inspector of

Shaktinagar Police Station who has been examined

has PW.4 which has resulted in the ugly incident

wherein the innocent appellant has been unnecessarily

detained in the police station and also he has been

falsely implicated in the case and sought for allowing

the appeal in toto.

15. Alternatively, he contended that though the

appellant pressed into service for grant of probation

as the accused is a first time offender, the learned

Sessions Judge without assigning any reason

whatsoever negated the prayer for grant of probation

which has resulted in miscarriage of justice and

sought for allowing the appeal to that extent.

16. Per contra, learned High Court Government

Pleader vehemently contended that the case of the

prosecution has been established not only by the oral

evidence of PW.4, but also, by other police personnel

who did not nurture any enmity or animosity against

the appellant.

17. The wound certificate issued by the doctor

who examined PW.4 clearly shows that PW.4 has

sustained injuries and the said doctor is examined as

PW.6 and there is sufficient corroboration in seizure of

the plastic chair and marking the same as M.O.1

before the Court and therefore, the case of the

prosecution has been proved beyond all reasonable

doubt and sought for dismissal of the appeal.

18. Insofar as the alternate submission is

concerned, he contended that the accused has

assaulted PW.4 in the police station and therefore,

such people does not deserve benefit of probation and

sought for dismissal of the appeal in toto.

19. In view of the rival contentions of the

parties, the following points would arise for

consideration:

1) Whether the finding recorded by the learned Sessions Judge that the accused is guilty of the offences punishable under Sections 353, 504 and 427 of IPC is suffering from legal infirmity or perversity and thus, calls for interference?

2) Whether the sentence is excessive?

3) What order?

20. In the case on hand, the entire case of the

prosecution hinges on the oral evidence of PW.4 and

other sub-staff. PW.4 is the Police Sub-Inspector of

Shaktinagar Police Station and he has deposed in line

with the complaint averments with graphic details as

to how the incident has taken place. The sub-staff also

supported the case of the prosecution by deposing in

line with the examination-in-chief of PW.4

21. In their detailed cross-examination, except

suggesting that the police have filed false case against

the accused, no other material is elicited so as to

disbelieve the case of the prosecution. The

documentary evidence filed on behalf of the

prosecution shows that the accused is a known

criminal and Exs.P8, P9 and P11 substantiate the

same.

22. On 06.08.2014 when the accused was

creating raucous near Type-VII area complex of

Shaktinagar, the police personnel bearing CRP

Nos.400 and 466 intimated the act of the accused to

the Police Sub-Inspector over wireless and

immediately, PW.4 along with sub-staff reached the

spot and noticed the misbehavior of the accused and

therefore, for further investigation, he was brought to

the police station.

23. In the police station also, the accused

further misbehaved with PW.4 and assaulted him with

M.O.1/plastic chair and also tried to strangulate. This

quarrel was pacified by the intervention of the other

sub-staff.

24. In the absence of any previous enmity or

animosity between PW.4 and the accused, why would

PW.4 venture to file a false complaint against the

accused is a question that remains unanswered.

25. No doubt, the accused has examined two

witnesses as referred to supra. DW.1 deposed that he

is a resident of Shaktinagar for 12 years. All of a

sudden on 06.08.2014, PC Mallikarjuna took him to

Shaktinagar Police Station at about 3.30 p.m., or 4.00

p.m. and police brought the accused at 5.30 p.m. It

is further deposed by him that one of the police

constables abused the accused in filthy language and

at that juncture, the accused assaulted himself on the

chest region and banged his head to the wall. Being

afraid of such conduct of the accused, the police have

filed a false case against him.

26. In his cross-examination on behalf of the

prosecution, it is elicited that he has studied upto 2 nd

PUC and the accused has studied upto 10th standard.

It is further contended that when the police took him

up, he was at Ayyappaswamy Temple. He further

answered that he does not know the reason why the

accused was picked up and was brought to the police

station. He also deposed that he does not know what

happened after 8.00 p.m., in the police station. He

further answered that he is not aware of the other

criminal acts committed by the accused. He further

answered that he is a friend of the accused. He

admits that the accused has brought him to the Court

and there was no witness summons served on him.

27. DW.2 also spoke in line with the

examination-in-chief of DW.1.

28. In his cross-examination also, he admits

that he is not aware of the criminal antecedents of the

accused.

29. It is pertinent to note that in the accused

statement itself the accused did not explain as to why

he has been brought to the police station. However, to

question No.20, he has answered as under:

"£À£Àß CPÀÌ£À UÀAqÀ wÃjPÉÆArzÀÝgÄÀ . CPÀ̤UÉ ªÀÄUÀ EzÁÝ£.É °Ã¸ï ¸À®ÄªÁV £Á£ÀÄ ªÀÄ®è¥Àà £ÀªÀÄä ªÀiÁªÀ¤UÉ PÉýzÉ.

CªÀgÀÄ PÉÆqÀ°®è. £ÀAvÀgÀ CPI ¸ÁºÉçjUÉ PÉýzÉ. CªÀgÀÄ ¸ÉÖõÀ£° À è wêÀiÁð£À ªÀiÁrPÉƽî JAzÀÄ ºÉýzÀgÀÄ. £ÀAvÀgÀ £ÁªÀÅ ±ÀQÛ £ÀUg À À oÁuÉUÉ ºÉÆÃVzÉݪÀÅ. C°è ¥ÀAZÁ¬ÄÛ £Àq¬ É ÄvÀÄ. £ÁªÀÅ £Á®ÄÌ JPÀgÉ d«ÄãÀÄ PÉýzɪÀÅ. ¸ÀjAiÀiÁV wêÀiÁð£À DUÀ°®è.

PSI MAzÉÃlÄ ºÉÆqÉzÀÄ oÁuÉAiÀÄ°è PÀÆj¹ ¸ÀļÀÄî PÉøÀÄ ºÁQzÁÝ£.É CªÁZÀå ±À§Ý¢AzÀ ¨ÉʬÄÝzÁÝ£É."

30. In order to substantiate the said

explanation, the accused has examined DWs.1 and 2.

But, they did not depose in line with the explanation

offered by the accused for question No.20.

31. The learned Trial Judge has taken into

account all these aspects of the matter and found that

the prosecution has failed to establish the ingredients

to attract the offences under Sections 506 and 307 of

IPC, but convicted the accused for the offences

punishable under Sections 353, 504 and 427 of IPC.

32. The very fact that the accused has been

acquitted from the very same material for the offences

punishable under Sections 506 and 307 of IPC shows

that there is sufficient application of mind by the

learned Sessions Judge while passing the impugned

judgment.

33. Further, the material on record clearly

shows that the accused has created a scene in the

Police Station and he was behaving in a raucous

manner within the Police Station as is found from the

evidence of DWs.1 and 2 itself. Therefore, the

incident as is complained of in the Police Station has

occurred on the date of the incident.

34. All these aspects of the matter has been

rightly appreciated by the learned Trial Judge while

convicting the appellant for the aforesaid offences.

35. Even after re-appreciation of the material

on record, this Court does not find any patent factual

defect nor any legal infirmity or perversity in reaching

out the said finding. Therefore, point No.(1) is

answered in negative.

36. It is found from the impugned judgment

that accused has sought for grant of probation under

Section 4 of the Probation of Offenders Act. However,

the learned judge while passing the order of sentence

has held as under:

"Nodoubt, the accused is aged 23 years as on today. But on that ground alone, he cannot entitled for any lenient view in the hands of the Court. The offence committed against the Government Servant that too in the Police Station, in my opinion, if the Court left the accused without punishment, as rightly contended by the prosecution, it is a wrong message to the society. The accused is not entitled for any benefit of P.O.Act muchless I declined to grant any benefit on P.O. Act, because, the accused committed an offence against the Government servant in the Police Station. As per evidence available on record, he is. already convicted by the Court of Law. Therefore, it is a it case to convict the accused as per law by considering his age pattern."

37. As could be seen from the above, there is

no proper reason forthcoming as to why probation is

not granted. The only reason that has been assigned

by the learned trial judge to refuse the grant of

probation is that the accused has assaulted the Police

Sub-Inspector in the police station itself and

therefore, granting probation would send a wrong

message to the society.

38. It is settled principle of law that role to be

played by the courts at the time of passing an order of

conviction is altogether different from the role to be

played by the Courts while passing the appropriate

sentence in a given case including the grant of

probation as per the object of Section 4 of the

Probation of Offenders Act.

39. Unfortunately, the learned trial Court has

missed out this solemn object while refusing the

prayer for grant of probation.

40. Admittedly, accused is a first time offender

and mere pendency of two more cases in the FIR

stage would not have come in the way of accused

being denied grant of probation.

41. Under such circumstances, since accused is

a first time offender, this Court is of the considered

opinion that accused is entitled for grant of probation

by referring to the provisions of Section 4 of the

Probation of Offenders Act.

42. Sri Gururaj V.Hasilkar, learned High Court

Government Pleader, however, submits that report

from the Probation Officer is necessary. Since, the

incident has occurred in the year 2014. At this point of

time, remanding the matter and obtaining the report

from the probation officer, would only result in futile

exercise. Further there is no complaint that accused

has misbehaved with the general public or police

thereafter.

43. Accordingly, instead of sending him to the

imprisonment for the aforesaid offences at once, if he

is directed to execute a bond in a sum of Rs.25,000/-

with two sureties for the likesum to the satisfaction of

the trial Magistrate for a period of two years for his

good behavior and directed to pay fine of Rs.50,000/-

for the offences under sections 353, 427 as ordered

by the trial Court and out of the fine amount a sum of

Rs.40,000/- is ordered to be paid to P.W.4 as

compensation would meet the ends of justice.

44. Accordingly, point No.2 is answered partly

in affirmative.

45. In view of finding of this Court on point

Nos.1 and 2 as above, the following order is passed:

ORDER

Criminal Appeal is allowed in part.

While maintaining the conviction of accused for

the offences punishable under Sections 353, 427 of

IPC accused is granted benefit of probation and

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

with one surety for the likesum to the satisfaction of

the trial Court for his good behavior which shall be in

force for a period of 2 years from the date of

execution of bond and directed to pay fine amount in

a sum of Rs.50,000/- inclusive of the fine amount for

the offences under Sections 353 and 427 of IPC. Out

of the fine amount a sum of Rs.40,000/- is ordered to

be paid to P.W.4 under due identification under

Section 357 of Cr.P.C., and remaining Rs.10,000/- is

to be appropriated towards the defraying expenses of

the State.

Time is granted to execute bond and to pay fine

till 10.02.2023.

Office is directed to return the trial Court records

with a copy of this judgment forthwith.

Sd/-

JUDGE

NB*/VNR