Karnataka High Court
Muttappa S/O Kallappa Kumbar vs The State Of Karnataka And Ors on 5 June, 2024
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CRL.A No.3557 of 2013
C/W CRL.A No.3567 of 2013
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO.3557 OF 2013
C/W
CRIMINAL APPEAL NO.3567 OF 2013
IN CRL.A NO.3557 OF 2013
BETWEEN:
MUTTAPPA
S/O KALLAPPA KUMBAR,
AGE: 28 YEARS, OCC: AGRICULTURE,
R/O. ARASHANAGI VILLAGE,
Digitally signed by
BASALINGAPPA TQ. BASAVAJA-BAGEWADI,
SHIVARAJ
DHUTTARGAON DISTRICT: BIJAPUR.
Location: HIGH
COURT OF
KARNATAKA ...APPELLANT
(BY SRI. R.S. LAGALI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REP. BY THE PSI,
NIDAGUNDI PS.
2. SUBHASH
S/O TULAJU LAMANI,
AGE: 48 YEARS,
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CRL.A No.3557 of 2013
C/W CRL.A No.3567 of 2013
OCC. AGRICULTURE,
R/O GANI TANDA,
TQ. B.BAGEWADI,
DISTRICT: BIJAPUR.
3. VITHAL
S/O TULAJU LAMANI
AGE: 57 YEARS,
OCC. AGRICULTURE,
R/O GANI TANDA,
TQ. B.BAGEWADI,
DISTRICT: BIJAPUR.
4. ANNAPPA
S/O SUBHASH LAMANI
AGE: 23 YEARS,
OCC. AGRICULTURE,
R/O GANI TANDA,
TQ. B.BAGEWADI
DISTRICT: BIJAPUR.
5. GURAPPA
S/O HANAMAPPA KUMBAR
AGE: 56 YEARS,
OCC. AGRICULUTRE,
R/O ARASHANAGI VILLAGE,
TQ. BASAVANA-BAGEWADI,
DISTRICT: BIJAPUR.
6. SHIVAPPA
S/O GURAPPA KUMBAR
AGE: 42 YEARS,
OCC: AGRICULTURE,
R/O ARASHANAGI VILLAGE,
TQ. BASAVANA BAGEWADI,
DISTRICT: BIJAPUR.
7. YALLAPPA
S/O GURAPPA KUMBAR
AGE: 23 YEARS,
OCC: AGRICULUTRE,
R/O ARASHANAGI VILLAGE,
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CRL.A No.3557 of 2013
C/W CRL.A No.3567 of 2013
TQ. BASAVANA-BAGEWADI,
DISTRICT: BIJAPUR.
8. MALLAPPA
S/O GURAPPA KUMBAR
AGE: 22 YEARS,
OCC: AGRICULUTRE,
R/O ARASHANAGI VILLAGE,
TQ. BASAVANA-BAGEWADI,
DISTRICT: BIJAPUR.
9. SMT. MAHADEVI
W/O NARASAPPA KUMBAR
AGE: 52 YEARS,
OCC: AGRICULUTRE,
R/O ARASHANAGI VILLAGE,
TQ. BASAVANA-BAGEWADI,
DISTRICT: BIJAPUR.
10. SMT. SHANTAWWA
W/O GURAPPA KUMBAR
AGE: 50 YEARS,
OCC. AGRICULUTRE,
R/O ARASHANAGI VILLAGE,
TQ. BASAVANA-BAGEWADI,
DISTRICT: BIJAPUR.
...RESPONDENTS
(BY SRI. SIDDALING P.PATIL, ADDL. S.P.P., FOR R1;
SRI. SHIVANAND V. PATTANASHETTI, ADVT. FOR R2 TO R4,
R6 AND R9;
NOTICE TO R5, R7, R8, R10 ARE SERVED)
THIS CRL.A. IS FILED UNDER SECTION 372 OF CR.P.C,
PRAYING TO ADMIT THIS APPEAL, CALL FOR THE RECORDS
FROM THE COURT BELOW AND SET ASIDE THE JUDGMENT OF
ACQUITTAL IN RESPECT OF OFFENCES U/S.307 IPC PASSED BY
I ADDL. SENIOR JUDGE BIJAPUR IN SESSIONS CASE
NO.149/2011 DATED 21.03.2013 AND COURT THE RSP. NO.2-
10 IN THE INTEREST OF JUSTICE.
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CRL.A No.3557 of 2013
C/W CRL.A No.3567 of 2013
IN CRL.A NO.3567 OF 2013
BETWEEN:
1. SUBHASH
S/O TULAJU LAMANI
AGE: 48 YEARS,
OCC. AGRICULTURE,
2. VITHAL
S/O TULAJU LAMANI
AGE: 57 YEARS,
OCC. AGRICULTURE,
3. ANNAPPA @ ANAND
S/O SUBHASH LAMANI
AGE: 23 YEARS,
OCC. AGRICULTURE,
ALL ARE R/O GANI TANDA,
TQ. B.BAGEWADI,
DISTRICT: BIJAPUR.
4. GURAPPA
S/O HANAMAPPA KUMBAR
AGE: 56 YEARS,
OCC. AGRICULUTRE,
5. SHIVAPPA
S/O GURAPPA KUMBAR
AGE: 44 YEARS,
OCC: AGRICULTURE,
6. YALLAPPA
S/O GURAPPA KUMBAR
AGE: 23 YEARS,
OCC: AGRICULUTRE,
7. MALLAPPA
S/O GURAPPA KUMBAR
AGE: 22 YEARS,
OCC: AGRICULUTRE,
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CRL.A No.3557 of 2013
C/W CRL.A No.3567 of 2013
8. SMT. MAHADEVI
W/O NARASAPPA KUMBAR
AGE: 52 YEARS,
OCC: AGRICULUTRE,
9. SMT. SHANTAWWA
W/O GURAPPA KUMBAR
AGE: 50 YEARS,
OCC. AGRICULUTRE,
ALL ARE R/O ARASHANAGI VILLAGE,
TQ. BASAVANA-BAGEWADI,
DISTRICT: BIJAPUR.
...APPELLANTS
(BY SRI.SHIVANAND V. PATTANASHETTI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
R/BY ADDL. S.P.P.,
CIRCUIT BENCH GULBARGA.
(THROUGH NIDAGUNDI, P.S)
....RESPONDENT
(BY SRI. SIDDALING P.PATIL, ADDL. SPP)
THIS CRL.A. IS FILED UNDER SECTION 374(2) OF
CR.P.C, PRAYING TO ADMIT THIS APPEAL, CALL FOR THE
RECORDS FROM THE COURT BELOW AND SET ASIDE THE
JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED
21.03.2013 PASSED BY THE I ADDITIONAL SESSIONS JUDGE,
BIJAPUR, IN S.C. NO.149/2011 AND ACQUIT THE
APPELLANTS/ACCUSED NO.1 TO 9 IN THE INTEREST OF
JUSTICE AND EQUITY.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS
DAY RAJESH RAI K J., DELIVERED THE FOLLOWING:
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CRL.A No.3557 of 2013
C/W CRL.A No.3567 of 2013
JUDGMENT
These two appeals are directed against the judgment
of conviction and order of sentence passed by the I
Additional Sessions Judge, Bijapur in S.C.No.149/2011
dated 21.03.2013, wherein the learned Sessions Judge
convicted the accused for the offences punishable under
Sections 143, 147, 148, 447, 341, 323, 324 and 325 r/w
Section 149 of IPC and sentenced them to undergo simple
imprisonment for a period of two months and to pay a fine
of Rs.500/- each, in default, to suffer simple imprisonment
for a period of ten days for the offence punishable under
Section 143 of IPC, they sentenced to undergo simple
imprisonment for a period of six months and to pay a fine
of Rs.1000/- each, in default, to suffer simple
imprisonment for a period of fifteen days for the offence
punishable under Section 147 of IPC, further they
sentenced to undergo simple imprisonment for a period of
six months and to pay a fine of 1000/- each, in default, to
suffer simple imprisonment for a period of fifteen days for
the offence punishable under Section 148 of IPC, further
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they sentenced to undergo simple imprisonment for a
period of one month and to pay a fine of Rs.500/- each, in
default, to suffer simple imprisonment for a period of ten
days for the offence punishable under Section 447 of IPC,
they also sentenced to undergo simple imprisonment for a
period of two months and to pay a fine of Rs.500/- each,
in default, to suffer simple imprisonment for a period of
ten days for the offence punishable under Section 341 of
IPC, further sentenced them to undergo simple
imprisonment for a period of six months and to pay a fine
of Rs.500/- each, in default, to suffer simple imprisonment
for a period of ten days for the offence punishable under
Section 323 of IPC, further they sentenced to undergo
simple imprisonment for a period of six months and to pay
a fine of Rs.1000/- each, in default, to suffer simple
imprisonment for a period of fifteen days for the offence
punishable under Section 324 of IPC and they sentenced
to undergo simple imprisonment for a period of one year
and to pay a fine of Rs.1000/- each, in default, to suffer
simple imprisonment for a period of one month for the
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offence punishable under Section 325 of IPC. It is also
directed that the sentences passed against the accused
shall run concurrently. However, the accused i.e.,
appellants in Crl.A.No.3567/2013 and respondent Nos.2 to
10 in Crl.A.No.3557/2013 were acquitted for the offence
punishable under Section 307 of IPC.
2. The factual matrix of the prosecution case is as
follows:
There was a civil dispute pending between the
accused and complainant-Muttappa Kallappa Kumbar, who
got examined as PW.2, in respect of land bearing
Sy.No.61/3 of Gani Village and PW.2 obtained a
prohibitory order of injunction against the accused by the
Civil Court. Such being the scenario, on 15.02.2011 at
about 6:00 p.m., all the accused persons unlawfully
trespassed into the said land and engaged in cutting the
jowar crop grown in the land. By witnessing the same,
PW.2 and his brothers rushed to the said spot and
requested the accused not to cut the crops since there was
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an injunction order in exist. Later, when the complainant
and his brothers were working in neighboring land bearing
Sy.No.61/2, all the accused persons trespassed into the
said land armed with deadly weapons, took up a quarrel
with the complainant and assaulted him and his brothers
with an axe and an iron rod and caused bleeding injuries
to PWs.2 to 6 and also some of the accused threw chilly
powder into the eyes of the complainant and his brothers.
Thereafter, the injured persons were shifted to hospital for
treatment. PW.2 lodged the complaint before Nidagundi
Police and the same has been registered in Crime
No.20/2011 for the offences punishable under Sections
143, 147, 148, 447, 341, 323, 324, 325, 504 and 307 r/w
Section 149 of IPC. Thereafter, the respondent-Police
arrested the accused and completed the investigation and
laid the charge sheet against the accused for the offences
stated supra before the Committal Court.
3. Post committal of the case before the Sessions
Court, the prosecution in totally examined 13 witnesses as
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PWs.1 to 13 so also got marked 11 documents as Exs.P1
to P11 and identified 5 material objects as MOs.1 to 5.
4. After completion of the prosecution evidence,
the learned Sessions Judge read over the incriminating
evidence of the material witnesses to the accused as
contemplated under the provisions of Section 313 of
Cr.P.C. Though the accused denied the same, they neither
chose to examine any witnesses on their behalf nor got
marked any documents.
5. Post assessment of oral and documentary
evidence placed before the learned Sessions Judge, the
learned Sessions Judge convicted the accused for the
aforementioned offences and sentenced them as stated
supra. Being aggrieved by the said judgment, the accused
filed Crl.A.No.3567/2013 to set-aside the judgment of
conviction and the order of sentence passed by the trial
Court so also the complainant-PW.2 has filed
Crl.A.No.3557/2013 under Section 372 of Cr.P.C praying
to set-aside the portion of the judgment in which the
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accused acquitted for the offence punishable under Section
307 of IPC and to convict them for the said offence.
6. We have heard the learned counsel
Sri.Shivanand V Pattanashetti for the appellants/accused
in Crl.A.No.3567/2013 for respondent Nos.2 to 4, 6 and 9
in Crl.A.No.3557/2013 so also learned counsel Sri R.S.
Lagali for the victim/complainant in Crl.A.No.3557/2013
and the learned Additional SPP Sri.Siddaling P Patil for the
respective respondent/State in both the appeals.
7. It is the primary contention of the learned
counsel for the appellants/accused in Crl.A.No.3567/2013
that the learned Sessions Judge has erred while passing
the impugned judgment by convicting the accused for the
offences punishable under Sections 143, 147, 148, 447,
341, 323, 324, 325 r/w Section 149 of IPC without there
being any cogent evidence or materials placed by the
prosecution. The material independent witnesses i.e.,
PWs.1, 8 and 11 have not supported the prosecution
case. PW.9-Doctor, who treated the injured i.e., PW.3,
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has stated that, one Doctor Shanakaragouda issued the
wound certificate and the same bears his signature,
however, the said Doctor has not been examined. He
would further contend that the evidence of other injured
eyewitnesses i.e., PWs.2 to 6 suffers from major
contradictions and omissions. As such, the same cannot
be relied upon for convicting the accused. He also
contends that in order to prove the charge under Section
325 of IPC, the prosecution has to place sufficient
materials to show that the grievous hurt was caused by
dangerous weapons or means. Since the learned Sessions
Judge opined that the offence punishable under Section
307 of IPC has not been proved, the conviction for the
offence punishable under Section 325 of IPC also not
sustainable. According to the learned counsel, since the
learned Sessions Judge came to the conclusion that there
was a civil dispute pending between the parties, the
Sessions Judge wrongly convicted the accused and
sentenced them for the offences they have charged.
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8. Per contra, the learned counsel in
Crl.A.No.3557/2013 would contend that the learned
Sessions Judge has committed a serious error by
convicting the accused for the lesser offence and
acquitting them for the offence punishable under Section
307 of IPC. According to learned counsel, when the trial
Court holds that the prosecution has proved beyond all
reasonable doubt that the incident is said to have occurred
on 15.02.2011 and the accused have assaulted the injured
by forming an unlawful assembly with deadly weapons and
committed the bleeding injuries to PWs.2 to 6 in spite of
that, acquitting the accused for the offence punishable
under Section 307 of IPC is not justifiable. The learned
Sessions Judge also failed to appreciate the evidence that
the accused had clear intention to commit the murder of
PW.2 and others, thereby, they assaulted PW.2 on his
head and chin with deadly weapon like axe. To that effect,
the prosecution placed the wound certificates, i.e., Exs.P5
and 9 to 11 issued by the Doctors-PWs.9 and 13. Those
documents were not considered by the learned Sessions
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Judge while passing the impugned judgment. Accordingly,
he prays to allow the appeal by convicting the accused for
the offence punishable under Section 307 of IPC.
9. Having heard the learned counsel for the parties
so also having perused the records made available before
us, the points that would arise for our consideration are:
1. "Whether the judgment and order
challenged under these appeals suffers
from any perversity or illegality?"
2. "Whether the trial Court/Sessions
Judge is justified in convicting the
appellants only for the offences
punishable under Sections 143, 147,
148, 447, 341, 323, 324 and 325 r/w
Section 149 of IPC by acquitting for the
offence punishable under Section 307
of IPC?"
10. This Court being the Appellate Court, in order
to, re-appreciate the entire material on record, it is
relevant to consider the entire prosecution witnesses and
the documents relied upon. The cursory glance of the
evidence of the witnesses available on record are as
under:
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i. PW.1-Tippanna Siddappa Tubaki, the
eyewitness to the incident, turned hostile
to the prosecution case.
ii. PW.2-Muttappa Kallappa Kumbar, the
complainant and injured, who lodged the
complaint as per Ex.P2.
iii. PW.3-Vithal Kallappa Kumbar, PW.4-
Nagappa Kallappa Kumbar and PW.6- are
the brothers of the complainant and
injured witnesses.
iv. PW.5-Basappa Gurubasappa Kumbar, the
witness for the spot mahazar as per
Ex.P3.
v. PW.7-Shrishail Kallappa Kumbar, the one
more brother of PW.1, is the eyewitness
to the incident.
vi. PW.8-Vithal Ningappa Managuli, who is
the owner of the neighboring land, came
to the spot after the incident, however, he
partly turned hostile to the prosecution
case.
vii. PW.9-Dr.Sunil Kallur, who examined PW.3
and issued wound certificate as per Ex.P5.
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viii. PW.10-Dundappa Jatteppa Managuli, co-
pancha to the spot mahazar Ex.P3.
ix. PW.11-Tippanna Jatteppa Tubaki, the
circumstantial witness, who turned hostile
to the prosecution case.
x. PW.12-S.Y. Maradi, the then PSI of
respondent-Police investigated the case
and laid the charge sheet against the
accused.
xi. PW.13-Dr. Krishnareddy, who had
examined PWs.2, 4 and 6 and issued
wound certificates as per Exs.P9, 11 and
10 respectively.
11. On careful perusal of the above evidences, it
could be seen that there was a civil dispute pending
between PW.2 and the accused in respect of land bearing
Sy.No.61/3 wherein PW.2 obtained a prohibitory order of
injunction against the accused. In spite of that, the
accused trespassed the property of the complainant and
made an attempt to cut the jowar crop in the said disputed
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land. By careful perusal of the evidence of PWs.2 to 6,
though they have supported the case of the prosecution
and deposed about the assault made by the accused to
them, none of them have stated that the accused had such
intention to commit the murder of either PW.2 or his
brothers. Admittedly, the incident occurred at a spur of the
moment due to the grave and sudden provocation when
the complainant obstructed the accused not to enter the
disputed land. Nevertheless, on perusal of the evidence of
the injured witnesses, the incident of the accused
trespassing into the property of the complainant and
assaulting PWs.2 to 6 is proved by the prosecution by
placing the evidence of the injured witnesses, i.e., PWs.2,
3, 4 and 6. All these witnesses categorically deposed that
on the relevant date and time, the accused trespassed the
property of PW.2 and thereby assaulted them, among
them, PW.3 sustained grievous injury. The said evidence
of the above witnesses is supported by Ex.P5-wound
certificates issued by PW.9-Doctor so also Exs.P9 to 11
issued by PW.13-Doctor, who examined PWs.2, 4 and 6.
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Additionally, PW.7 one more eyewitness to the incident
also supported the case of the prosecution. PWs.5 and 10
are the panch witnesses, who supported the case of the
prosecution and deposed about the drawing of spot
mahazar by PW.12. Hence, there is no reason to
disbelieve their evidence.
12. Though the learned counsel for the accused
contends that there are major contradictions and
omissions forthcoming in the evidence of the injured
eyewitness, the same does not go to the root of the
prosecution case. Even otherwise, their evidence cannot
be discarded only for the reason that they are
relatives/partisan witnesses. Their oral evidence supports
the medical evidence, coupled with the evidence of the
Investigation Officer-PW.12.
13. In that view of the matter, we are of the
considered view that the learned Sessions Judge has
rightly convicted the accused for the offences punishable
under Sections 143, 147, 148, 447, 341, 323 and 324 of
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IPC. As far as Section 325 of IPC is concerned, as
discussed supra, the alleged offence committed by the
accused in a spur of moment on a grave and sudden
provocation falls within the ambit of Section 335 of IPC as
contemplated under Section 325 of IPC. As such, the
conviction imposed by the trial Court for the offence
punishable under Section 325 of IPC has to be modified
into Section 335 of IPC. As far as the sentence imposed by
the trial Court is concerned, the incident is of the year
2011 and ever since then, the accused are on bail and
there are no such bad antecedents forthcoming against
them after this incident, as stated by the learned Addl.
SPP. We are of the view that, instead of committing the
accused to judicial custody, after a lapse of 13 years, it is
appropriate to enhance the fine amount and modify the
sentence imposed by the trial Court for the offences they
have been convicted.
14. As discussed supra, since the prosecution failed
to establish the cogent evidence to prove that the accused
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had such intention to commit the murder of either PW.2 or
his brothers, i.e., PWs.3 to 6 and the incident was caused
due to civil dispute, we are of the view that the
prosecution failed to establish the guilt of the accused for
the offence punishable under Section 307 of IPC and
learned Sessions Judge has rightly acquitted the accused
for the said charge. Accordingly, the appeal preferred by
the victim is liable to be dismissed.
In that view of the matter, we answer the points
raised above in the negative and proceed to pass the
following:
ORDER
i. The appeal filed by the victim in
Crl.A.No.3557/2013 is dismissed.
ii. The appeal filed by the accused in
Crl.A.No.3567/2013 is allowed-in-part.
iii. The sentence imposed by the trial Court
for the offence punishable under Section
325 of IPC is modified to Section 335 of
IPC and the accused are directed to pay
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a fine of Rs.2,000/- each, in default of
payment of fine, they shall suffer simple
imprisonment for a period six months.
iv. The sentence of imprisonment for the
offences punishable under Sections 143,
147, 148 and 324 is modified and the
accused are directed to pay a fine of
Rs.2,00,000/-, in total. In default of
payment of fine, they shall undergo
simple imprisonment for a period six
months.
v. The sentence of imprisonment for the
offences punishable under Sections 447,
323 and 341 is modified and the accused
are directed to pay a fine of Rs.2,000/-
each. In default of payment of fine, they
shall undergo simple imprisonment for a
period of ten days.
vi. The accused shall deposit the fine
amount within a period of four weeks'
from the date of receipt of copy of this
order.
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vii. If the fine amount is deposited, the
learned Sessions Judge is requested to
intimate the same to PWs.2, 3, 4 and 6,
the same shall be paid to them equally.
viii. If the accused failed to deposit the fine
amount, the learned Sessions Judge is
requested to secure the presence of the
accused to commit them to prison to
serve the default sentence.
ix. The bail bonds executed by the accused
stand cancelled.
x. Registry is directed to send back the trial
Court records along with the copy of this
order, forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
HKV
CT;BN
