Karnataka High Court
Bachigadde Sheshappa vs State Of Karnataka on 16 February, 2024
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.A No. 561 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 561 OF 2013
BETWEEN:
BACHIGADDE SHESHAPPA
AGED 56 YEARS
S/O LATE KUKKAPPA
AGRICULTURIST
MUNDADKA, CHADAVU
SAMPAJE VILLAGE
MADIKERE TALUK.
...APPELLANT
Digitally signed by
LAKSHMINARAYANA
MURTHY RAJASHRI
(BY SRI A H BHAGAVAN, ADVOCATE)
Location: HIGH
COURT OF AND:
KARNATAKA
STATE OF KARNATAKA
MADIKERE POLICE STATION
REPRESENTED BY
THE STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
BANGALORE - 560 001.
...RESPONDENT
(BY SRI B LAKSHMAN, HCGP)
THIS CRL.A. IS FILED U/S. 374(2) CR.P.C PRAYING TO
SET ASIDE THE ORDER DATED:14.3.13 PASSED BY THE
SESSIONS JUDGE, KODAGU, MADIKERI IN S.C.No.31/10 -
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CRL.A No. 561 of 2013
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
P/U/S 447, 435 AND 436 OF IPC AND ETC.,
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal is filed by the sole accused, praying to
set-aside the judgment of conviction and order on
sentence dated 14.03.2013 passed in S.C.No.31/2010 by
the District and Sessions Judge, Kodgu, Madikeri. The
appellant - accused has been convicted for the offences
under Sections 447, 435 and 436 of the Indian Penal
Code, 1860 (for short hereinafter referred to as 'IPC') and
sentenced to undergo rigorous imprisonment for a period
of five years and to pay fine of Rs.30,000/- and in default,
to undergo rigorous imprisonment for a period of one year.
The Trial Court has passed common sentence for all the
three offences considering the provision of Section 71 of
IPC.
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2. The factual matrix of the prosecution case is as
under;
PW1 - Sri.N.H.Balachandra was residing in a hut in
Sy.No.54/6 of Chadavu village, Sampaje. On 10.12.2009,
he went to Sullia with his wife and children on personal
work. Around 4.30 pm., he returned to the village. He
found that the hut and the plants grown around it were
burnt. On his scream, his neighbour Sri.Harisha came
there running and told him that in his absence, the
appellant - accused started abusing him and suddenly set
fire to the hut. There was a dispute between him and the
appellant - accused in respect of that property. On the
complaint of PW1, a case came to be registered for the
offence under Section 436 of IPC. The police after
investigation filed the charge sheet for the offences under
Sections 447, 435 and 436 of IPC. After committal of the
case, the Trial Court has framed the charge against the
appellant - accused for the offences under Sections 447,
435 and 436 of IPC.
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3. The prosecution, in order to prove the charge, has
examined PWs.1 to 16 and got marked Exs.P1 to P7 and
MOs.1 to 5. The statement of the appellant - accused
came to be recorded under Section 313 of Cr.P.C. The
Trial Court after hearing the arguments, formulated the
points for consideration and after appreciating the
evidence on record, has passed the judgment of conviction
and order on sentence which has been challenged in this
appeal.
4. Heard learned counsel for the appellant - accused
and learned High Court Government Pleader for the
respondent - State.
5. Learned counsel for the appellant - accused would
contend that there are contradictions in the evidence of
PWs.1 and 5 with regard to he residing in the shed
situated in his land. He submits that PWs.2 and 3 who are
projected as eye witnesses, on cross examination, they
are not eye witnesses to the incident. PWs.2 and 3 are
the interested witnesses as PW3 is working under PW1
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since fifteen years and PW2 is having enmity with the wife
of the appellant - accused. PW5 has stated that he was
using the said shed for drying the clothes and storing the
waste materials. He contends that the evidence on record
would not establish the offences for which the appellant -
accused is convicted. The Trial Court has erred in
convicting the appellant - accused for the said offences.
On these grounds, he prayed for allowing the appeal and
acquitting the appellant - accused.
6. Learned High Court Government Pleader argued that
the Trial Court on proper appreciation of the evidence on
record, has rightly convicted the appellant - accused. He
has supported the reasons assigned by the Trial Court. He
further argued that the evidence of PWs.1 to 3 is sufficient
to convict the appellant - accused for the offences levelled
against him. Upon these grounds, he sought for dismissal
of the appeal.
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7. On the grounds made out and considering the
arguments advanced, the following point arises for my
consideration;
"Whether the Trial Court has erred in convicting
the appellant - accused for the offences under
Sections 447, 435 and 436 of IPC?
8. My answer to the above point is in the affirmative,
for the following reasons;
The property in which fire broke out belongs to PW1
is not in dispute. It is the accusation of the prosecution
that the appellant - accused has set fire to the hut of PW1
and it caused damage to the hut and the plants around the
hut. Admittedly, PW1 was not present in the village at the
time of the incident and he came subsequently. As per
the prosecution case, PWs.2 and 3 are the eye witnesses
to the incident. As per the averments of the complaint -
Ex.P1, when PW1 came back to the village, he saw the
damage to his hut and the plants by fire and when he
screamed, his neighbour Sri.Harisha - PW2 came running
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and told him that in his absence, the appellant - accused
came suddenly and by abusing, set fire to the hut and it
caused burning of the hut and plants around the hut. It is
also stated in Ex.P1, that there was a dispute between
PW1 and the appellant - accused with regard to the said
property. As per the averments of Ex.P1, PW2 -
N.R.Harisha, PW3 - S.H.Ramaiah have seen the incident.
9. PW2 has deposed that on 10.12.2009, at about 4.15
pm, when he was in the house, the appellant - accused
came to his house and told that he has set-fire to the hut
and garden land of PW1 - N.H.Balachandra and asked him
to go and tell the same to PW1 - Sri.N.H.Balachandra.
PW2, thereafter went to the garden land and saw the
damages to the hut and plants in the garden land and he
has informed the same to PW1 - Sri.N.H.Balachandra. As
per the averments of the complaint - Ex.P1, PW2 has seen
the appellant - accused setting fire to the hut and plants
of PW1, but as per the chief examination of PW2, he has
not seen the appellant - accused setting fire to the hut
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and the plants in the garden, but it is the appellant -
accused who told him that he has set fire. Therefore, PW2
is not an eye witness to the incident, in which it is alleged
that the appellant - accused has set fire to the hut and the
garden land. PW2 in the cross examination has admitted
that Smt.Somakka, wife of the appellant - accused is his
cousin sister and she has filed a suit against him in
O.S.No.66/2009 in respect of one acre of land and it is
Sy.No.54/1 and he has given the evidence in that suit.
The said aspect itself goes to show that there was an
enmity between the appellant's wife and PW2. As there is
enmity between PW2 and wife of the appellant - accused,
the said testimony regarding the appellant - accused
making extra judicial confession that he has set-fire to the
hut of PW1, cannot be believed.
10. PW3 is another eye witness to the prosecution case.
In the chief examination, PW3 has stated that when he
was on the way, he has seen the appellant - accused
setting fire in the garden land of PW1. He further deposed
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that on that day, he talked with the appellant - accused
who told him that he has set fire to the hut of PW1 and
asked him to go and tell the same to PW1. PW3 in the
cross examination has admitted that he has not seen the
appellant - accused setting fire. The said aspect itself
goes to show that he is not an eye witness to the incident.
More so, he has admitted that he is working in the garden
land of PW1 since fifteen years. The said PW3, as he is
working under PW1, is an interested witness and
therefore, his testimony regarding the appellant - accused
making extra judicial confession that he has set fire cannot
be believed. As per PW3, at the time of the incident, the
wife of the driver - PW5 and his children were present in
the said hut and they have not sustained any injury.
PW5 - driver has not stated that his wife and
children were present in the shed at the time of the
incident. Even the Investigating Officer has not examined
the wife and children of PW5 - driver.
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11. PW1 in his cross examination has stated that the
appellant - accused has not filed any suit claiming the land
purchased by him. The appellant - accused has not made
any objection when he purchased the property. The
appellant - accused has not made any quarrel with him in
respect of the land purchased by him prior to the incident.
Therefore, the said aspect is sufficient to show that there
was no dispute between PW1 and the appellant - accused
with regard to the land purchased by PW1.
12. Considering all these above aspects, the evidence on
record is not sufficient to hold that the appellant - accused
has entered the land of PW1 and set fire to his hut and
plants grown in the garden land. The Trial Court has erred
in convicting the appellant - accused for the offences
under Sections 447, 435 and 436 of IPC. In the result, the
following;
ORDER
The appeal is allowed. The judgment of conviction
and order on sentence dated 14.03.2013 passed in
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S.C.No.31/2010 by the District and Sessions Judge,
Kodagu, Madikeri, is set-aside. The appellant - accused is
acquitted of the offences under Sections 447, 435 and 436
of IPC.
Sd/-
JUDGE
GH
