Karnataka High Court
Shivalingappa S/O Hanumantappa ... vs The State Of Karnataka on 30 May, 2023
Bench: Anil B Byabkj
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CRL.RP No. 100197 of 2015
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 30TH DAY OF MAY, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO. 100197 OF 2015
BETWEEN:
1. SHIVALINGAPPA S/O HANUMANTAPPA HAKKALADAVAR
AGE :MAJOR, OCC : AGRICULTURE,
R/O : KIRAWADI, TQ : HANGAL,
DIST: HAVERI.
2. NAGAPPA S/O HANUMANTAPPA HAKKALADAVAR
AGE :MAJOR, OCC : AGRICULTURE,
R/O : KIRAWADI, TQ : HANGAL,
Digitally DIST: HAVERI.
signed by J
MAMATHA
J
MAMATHA Date: 3. FAKKIRAPPA S/O HANUMANTAPPA HAKKALADAVAR
2023.06.01
10:34:15 AGE :MAJOR, OCC : AGRICULTURE,
+0530
R/O : KIRAWADI, TQ : HANGAL,
DIST: HAVERI.
4. BASAVARAJ S/O HANUMANTAPPA HAKKALADAVAR
AGE :MAJOR, OCC : AGRICULTURE,
R/O : KIRAWADI, TQ : HANGAL,
DIST: HAVERI.
5. RAMAPPA S/O HANUMANTAPPA HAKKALADAVAR
AGE :MAJOR, OCC : AGRICULTURE,
R/O : KIRAWADI, TQ : HANGAL,
DIST: HAVERI.
...PETITIONERS
(BY SHRI VEERESH S. GADADDAD AND
S.P. KHANDIBAGUR, ADVOCATES)
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CRL.RP No. 100197 of 2015
AND:
THE STATE OF KARNATAKA
SUB URBAN POLICE STATION,DHARWAD
R/BY THE ADDL.SPP HIGH COURT BENCH,
DHARWAD.
...RESPONDENT
(BY SHRI PRAVEEN K. UPPAR, HCGP)
***
THIS CRIMINAL REVISION PETITION IS FILED U/S 397(I)
OF CR.P.C. SEEKING TO SET ASIDE THE JUDGEMENT OF
CONFIRMINF THE JUDGEMENT PASSED BY THE TRIAL COURT
IN CRI. APPEAL NO.37/2008 DTD:10/07/2015 PASSED BY IIND
ADDL. DIST. & SESSIONS JUDGE, HAVERI SITTING AT
RANEBENNUR. OFFENCE U/S 143, 147, 148, 323, 324, 504,
AND 326, R/W SEC. 149 IPC HAMSABHAVI. P.S.
CRIM.NO.44/04, AND TO SET ASIDE THE JUDGMENT AND
ORDER OF CONVICTION PASSED BY THE CIVIL JUDGE (JR.DN)
AND JMFC COURT, HIREKERUR IN CC.NO.497/2004 DTD:
24-05-2008 BY ACQUITTING THE PETITIONERS FOR THE
CHARGES LEVELED AGAINST THEM BY SETTING THEM AT
LIBERTY.
THIS REVISION PETITION COMING ON FOR FINAL
HEARING AND THE SAME HAVING BEEN HEARD AND
RESERVED FOR ORDER ON 20.03.2023, THIS DAY, THE
COURT, MADE THE FOLLOWING:
ORDER
Revision petitioners/accused feeling aggrieved by judgment
of first appellate Court on the file of II Addl. District and
Sessions Judge, Haveri sitting at Ranebennur in Crl.A.37/2008,
dated 10.07.2015, preferred this Revision Petition.
CRL.RP No. 100197 of 2015
2. Parties to Revision Petitions are referred with their ranks
assigned before Trial Court for the sake of convenience of
discussion.
3. The factual matrix leading to the case of prosecution can
be stated in nutshell to the effect that on 1.6.2004 at 8.30 a.m.
at Purakondikoppa village in a common land belonging to them,
all accused formed themselves into unlawful assembly being
armed with deadly weapons, picked up quarrel with complainant
and CWs. 6 to 9. Accused assaulted complainant and CWs. 6 to
9 by means of whip and Shovel stalk and also with hands,
thereby caused injuries to them. It is further alleged that
accused have abused CWs.1 and 6 in filthy language, so as to
insult them and such insult likely to cause them to break public
peace or to commit offence. On these allegations made in the
complaint, investigation was carried out and charge sheet came
to be filed.
4. Accused was secured before the trial Court through
process of law. The Trial Court on being prima facie satisfied
framed the charge against accused for the offences alleged
against them. All accused pleaded not guilty and claimed to be
tried.
CRL.RP No. 100197 of 2015
5. The prosecution to prove accusation leveled against
accused relied on the evidence of PWs.1 to 12 and documents
at Ex.Ps.1 to 8, so also got identified M.O.1 and 2. On closure of
prosecution evidence, statement of accused under Section 313
of Cr.P.C. was recorded. Accused have denied all incriminating
material evidence appearing against them and claimed false
case is filed. The trial Court after having heard arguments of
both sides and on appreciation of evidence on record convicted
the accused for the aforesaid offences and imposed sentence as
per order of sentence.
6. Revision petitioners-accused have challenged the said
judgment of conviction and order of sentence before First
Appellate Court in Crl.A.No.37/2008. The First Appellate Court
by judgment dated 10.07.2015 has dismissed the appeal and
confirmed judgment of conviction and order of sentence.
7. Revision petitioners feeling aggrieved by concurrent
finding of both courts below have preferred this Revision
Petition contenting that both courts below have not properly
appreciated the evidence on record. The evidence of PWs. 4 to 8
cannot be relied, since they are interested witnesses and no any
independent witnesses have been examined. There is dispute
CRL.RP No. 100197 of 2015
between accused and complainant and as a result, complainant
has filed false complaint against accused. The evidence of PW.9
with reference to wound certificates-Exs.P.4 to 6 stand contrary
to oral evidence of PWs.5, 7 and 8 respectively. Approach and
appreciation of evidence by both the courts below are contrary
to law and evidence on record. Therefore, prayed for allowing
Revision Petition and to set aside judgments of both the courts
below. Consequently to acquit accused from charges leveled
against them.
8. Learned HCGP on notice, has appeared for respondent-
State.
9. Heard the arguments of both sides.
10. On careful perusal of oral and documentary evidence
placed on record by the prosecution, it would go to show that
incident in question has taken place on 1.6.2004 at 8.30 a.m. in
Purakondikoppa village wherein all the accused formed
themselves into unlawful assembly being armed with deadly
weapons, picked up quarrel with complainant and CWs.6 to 9,
further by means of whip and Shovel stalk and by hand
assaulted them thereby caused injuries to CWs.6 to 9. It is
further the case of prosecution that all the accused have abused
CRL.RP No. 100197 of 2015
complainant and CWs.6 to 9 in filthy language, so as to insult
them and such insult may likely to cause them to break public
peace or to commit any other offence. The prosecution mainly
relied on the oral evidence of PWs. 4 to 9 and wound certificate
of PWs.5, 7 and 8 as per Exs.P.4, 5 and 6 respectively.
11. PW.4 is brother of complainant and he has deposed to the
effect that while complainant and his father were harvesting
crop in their land, all the accused committed criminal trespass.
Accused No.1 by means of Shovel stalk assaulted on right
shoulder, accused No.2 kicked on him over his ribs, accused
No.3 by hand assaulted over his right ear, accused No.4 fisted
on his right side chest, so also accused No.5 assaulted
complainant by means of hands. PW.5 is father of complainant
and he deposed to the effect that accused on entering land
started assaulting his son. When he questioned as to why they
are assaulting is son, accused No.1 by means of Shovel stalk
assaulted on left shoulder. PW.6 daughter of PW.5 deposed to
the effect that accused No.1 by means of Shovel stalk assaulted
on the left shoulder due to which he suffered fracture injuries.
All the accused by means of club assaulted on her and her sister
Renuka. Accused Nos. 1 and 2 have pulled Renuka due to which
she sustained injuries. PW.7 is complainant, who filed complaint
CRL.RP No. 100197 of 2015
as per Ex.P.3 spoken about all the accused actively participated
in assaulting him and CWs.6 to 9 by means of weapons in their
possession and also by hands. PW.7 further deposed to the
effect that his father has suffered fracture injuries due to
assault by means of Shovel stalk on his left shoulder. PW.8 is
another daughter of PW.5, she has partly turned hostile to the
case of prosecution, however during the course of cross
examination by learned public Prosecutor, she has admitted to
all the suggestion put to her as per the case of prosecution.
12. On going through the above referred oral evidence of
injured eye witnesses, it would go to show that they have
spoken about injuries sustained by them due to assault of
accused. It is true that their evidence is not with every
mathematical accuracy as alleged in the complaint with regard
to inflicting of injuries by means of weapons as stated in the
complaint. The minor discrepancies in their evidence regarding
inflicting of injuries by means of weapons as alleged in the
complaint Ex.P.3 cannot be itself valid ground to discredit their
evidence in its entirety.
13. The prosecution has examined PW.9 Dr.Satish Pujar,
who has examined injured PWs.5, 7 and 8 and issued wound
CRL.RP No. 100197 of 2015
certificates as per Exs.P.4, 5 and 6 respectively. On perusal of
oral evidence of PW.9 and wound certificates, it would go to
show that father of complainant PW.5-Durgappa suffered
dislocation of left shoulder joint and the said injury is opinioned
to be grievous in nature. The wound certificate of complainant
Ex.P.5 would speak about having sustained three abrasions
measuring 2x1/2 c.m. below right side chest. PW.8-Renuka
suffered three abrasions as noted in the wound certificate-
Ex.P.6. There is nothing worth material that has been brought
on record during the cross examination of PWs.5, 7 and 8 that
injuries found on them as per wound certificates at Ex.P.4 to 6
has no nexus with the incident alleged in the complaint-Ex.P.3.
Looking to the time of incident and time of their examination in
Primary Health Centre, Aadur of Hangal taluk, it would go to
show that prosecution out of above referred evidence has
established nexus between injuries suffered by PW.5, 7 and 8 in
the incident that occurred in the land of complainant as found in
Ex.P.4 to 6 respectively. The mere dispute between complainant
and accused cannot be said as sufficient evidence to hold that
all accused being falsely implicated in this case. The fact that
PWs.5, 7 and 8 suffered injuries found in the wound certificates
at Ex.P.4, 5 and 6 is duly supported by oral evidence of PWs.4
CRL.RP No. 100197 of 2015
to 8 and the same has been corroborated by evidence of Doctor
PW.9, who has examined injured witnesses PWs.5, 7 and 8 and
issued wound certificates at Ex.P.4, 5 and 6 respectively.
14. The Trial Court has found all accused guilty of the offence
punishable under Section 326 of IPC R/w Section 149 of IPC and
convicted accused Nos.1 to 5 for the aforesaid offence. Question
is as to whether offence under Section 326 of IPC is attracted or
not has to be decided.
15. Oral evidence of Pws.4 to 8 would go to show that father
of complainant PW.5-Durgappa has suffered grievous injury
over the left shoulder. The doctor, who has examined PW.5 has
deposed to the effect that there is dislocation of left shoulder
joint and it is a grievous injury. The prosecution has not
produced any x-ray or radiologist report to support the finding
of PW.9 that injury on the left shoulder of PW.5 is grievous in
nature. In the absence of any x-ray or radiologist report, it
cannot be concluded that PW.5 suffered grievous injury due to
assault of accused. The injury caused to PW.5 due to assault by
means of Shovel stalk will attract offence under Section 324 of
IPC. Therefore, both the courts below were not justified in
holding that the prosecution beyond all reasonable doubt proved
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CRL.RP No. 100197 of 2015
the offence under Section 326 of IPC. Looking to the above
referred evidence on record and in the absence of any x-ray or
radiologist report, the injury suffered by PW.5 as per wound
certificate Ex.P.4 will attract only offence under Section 324 of
IPC.
16. Now coming to the adequacy sentence imposed by the
Trial Court, which is confirmed by the First Appellate Court that
accused Nos.1 to 5 have been sentenced to imprisonment as
per the order of sentence and in addition to sentence of
imprisonment fine is imposed only for the offence under Section
326 of IPC. In view of reasons stated above, it has been
observed and held that offence under Section 326 of IPC is not
attracted and the same falls within the ambit of Section 324 of
IPC. The material evidence brought on record would go to show
that accused were demanding for partition of properties and
PW.5 father of complainant was refusing for the same, accused
are non other else than cousin brothers of complainant.
Therefore, it is evident that genesis of dispute is due to property
dispute and PW.5 refusing to effect partition between the family
of complainant and accused. Therefore, looking to the nature of
evidence brought on record, genesis of dispute and injuries
found on PWs.5, 7 and 8 as per Exs.P.4 to 6, in my opinion, the
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CRL.RP No. 100197 of 2015
imposition of sentence of imprisonment appears to be too harsh
and needs to be interfered with. The imposition of sentence of
imprisonment or fine or both is at the discretion of the Court,
looking to the facts and circumstances of the case and for the
above recorded reasons, in my opinion, if accused Nos. 1 to 5
are sentence to pay fine of Rs.500/- each for the offences
punishable under Sections 143, 147, 148, 323, 504 of IPC and
in default of payment of fine amount each to undergo simple
imprisonment for 15 days. If an amount of Rs.2,000/- each for
the offence punishable under Section 324 of IPC in default of
payment of fine each to undergo simple imprisonment for one
month would meet the ends of justice. Consequently, proceed
to pass the following:
ORDER
The revision petition filed by revision petitioners is hereby
partly allowed.
The judgment of the First Appellate Court on the file of II
Addl. District and Sessions Judge, Haveri sitting at Ranebennur
in Crl.A.37/2008, dated 10.7.2015 confirming the judgment of
the Trial Court in CC.No.497/20014, dated 24.5.2008 is
modified as under:
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CRL.RP No. 100197 of 2015
Accused Nos. 1 to 5 are sentenced to pay fine of Rs.500/-
each for the offences punishable under Sections 143, 147, 148,
323, 504 of IPC and in default of payment of fine amount each
to undergo simple imprisonment for 15 days.
Accused Nos. 1 to 5 are sentenced to pay fine of
Rs.2,000/- each for the offence punishable under Section 324
of IPC and in default of payment of fine each to undergo simple
imprisonment for one month.
Registry is directed to transmit the records of the trial
court with copy of this judgment.
(Sd/-)
JUDGE
VB/-
