[Cites 9, Cited by 0]
Karnataka High Court
Yeshwant vs The State Of Karnataka on 18 March, 2026
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CRL.A No. 200253 of 2022
HC-KAR
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 18TH DAY OF MARCH, 2026
BEFORE
THE HON'BLE MR. JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 200253 OF 2022
(374(Cr.PC)/415(BNSS))
BETWEEN:
YESHWANT
S/O SHRIPATI BETAJEWARGI
@ MELINKERI, AGE: 35 YEARS
OCC: KDB PRIVATE CONTRACTOR
R/O TAJ SULTANPUR VILLAGE
TQ: AND DIST: KALABURAGI
(PRESENTLY SERVING SENTENCE
AT CENTRAL JAIL, KALABURAGI)
...APPELLANT
Digitally signed by
SHIVALEELA (BY SRI. NANDKISHORE BOOB, ADVOCATE)
DATTATRAYA
UDAGI
Location: HIGH AND:
COURT OF
KARNATAKA
THE STATE OF KARNATAKA
THROUGH
KALABURAGI RURAL POLICE STATION
TQ: AND DIST: KALABURAGI
REPRESENTED BY ADDL. SPP
HIGH COURT OF KARNATAKA
BENCH AT KALABURAGI-585102
...RESPONDENT
(BY SRI.GOPALKRISHNA B. YADAV, HCGP)
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CRL.A No. 200253 of 2022
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374
(2) OF CR.P.C (OLD) U/S. 415 BNSS (NEW) PRAYING TO SET
ASIDE THE JUDGMENT OF CONVICTION DATED 26.09.2022
AND SENTENCE DATED 27.09.2022 PASSED BY THE III ADDL.
DIST. AND SESSIONS JUDGE KALABURAGI IN S.C.
No.236/2019, THEREBY CONVICTING THE APPELLANT AND
SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR A
PERIOD OF TWO YEARS AND PAY FINE OF RS.10,000/- (TEN
THOUSAND RUPEES ONLY) FOR THE OFFENCES PUNISHABLE
U/SEC.353 OF INDIAN PENAL CODE. IN DEFAULT OF PAY FINE
AMOUNT, HE SHALL UNDERGO SIMPLE IMPRISONMENT FOR A
PERIOD OF SIX MONTHS. THE ACCUSED IS SENTENCED TO
UNDERGO RIGOROUS IMPRISONMENT FOR A PERIOD OF
THREE YEARS AND TO PAY FINE OF RS.10,000/- (RS.TEN
THOUSAND RUPEES ONLY) FOR THE OFFENCES PUNISHABLE
U/SEC.332 OF INDIAN PENAL CODE. IN DEFAULT TO PAY FINE
AMOUNT, HE SHALL UNDERGO SIMPLE IMPRISONMENT FOR A
PERIOD OF FIVE MONTHS. THE SUBSTANTIVE SENTENCES
SHALL RUN CONSECUTIVELY. FINE AMOUNT OF RS.20,000/-
(TWENTY THOUSAND RUPEES ONLY) SHALL BE VEST TO THE
STATE GOVERNMENT TOWARDS EXPENSES AND ETC.,
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE G BASAVARAJA
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CRL.A No. 200253 of 2022
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ORAL JUDGMENT
The appellant has preferred this appeal against the
judgment of conviction and order on sentence passed by
the III-Additional District & Sessions Judge, Kalaburagi, in
S.C.No.236/2019 dated 26.09.2022.
2. For the sake of convenience, the parties are
referred to as per their rank before the Trial Court.
3. The brief facts leading to filing of this appeal
are that, the Circle Inspector of Police, M.B.Nagar Circle,
Kalaburagi, has submitted the charge-sheet against the
accused for the offences punishable under Sections 353,
332, 333, 307 of IPC and Section 3 of Prevention of
Damage to Public Property Act, 1984. It is alleged by the
prosecution that on 14.12.2017 at 11:00 p.m. CW.1
received a wireless message that an unknown person was
transporting arms in a white car on Humnabad-Kalaburagi
Highway illegally. On the basis of the said information, he
informed the same to CW.4, for which he deputed to
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CW.14 and CW.15 at Kinni border and deputed to CW.1
and CW.11 at Tavargera cross, CWs.1, 4, 5, 6, 8, 10, 12
and 13 were on patrolling duty near Humnabad-Kalaburagi
road by putting barricades on the road. At that time, a
white car bearing No.KA-34/N-1658 driven with a high
speed by the accused and crossed Kinni border without
adhering to signals given by CW.14 and CW.15 and also
damaged barricades and same was informed by CW.14
and CW.15 to CW.4, who were waiting at Tavargera cross.
CW.1 and others alerted at Tavargera cross to check all
the vehicles. The accused came with a high speed and did
not stop vehicle inspite of giving signals and damaged
barricades. In turn, barricades dashed to CW.6 and CW.7
and sustained injuries on the left thigh of CW.6 and fell on
the ground and accused tried to run away, but CW.1 gave
warning to the accused to stop the vehicle. Despite giving
warning, accused tried to escape towards Tavargera
village by turning his vehicle. By that time, CW.1, without
any option, fired from his service pistol in air. But, the
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accused without stopping the car, proceeded further.
Then, CW.1 again shot his service pistol towards tyre of
the car. Thereafter, car was stopped by the side of the
road. Accused came out by holding talwar. At that time,
CWs.1, 4 to 13 told that accused involved in a murder
case of Grameena Police Station and asked him to
surrender, but accused tried to run away from the place.
When CW.7 tried to catch, accused with an intention to
escape from police, assaulted him with talwar on his right
arm and right knee and caused bleeding injuries. When
CWs.1, 4 and 5 tried to caught hold the accused, he tried
to assault them with talwar and looking to the act of the
accused, CW.5 to save the life of himself and other police
officials, fired through his service pistol on the left leg of
the accused. Due to the said impact, accused fell on
ground and then also tried to escape from the police and
again tried to assault CW.5. CW.5 fired his service pistol
once again on right leg of the accused and caused injuries.
Due to the injuries, fell on the ground and CWs.1, 4 to 13
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arrested the accused. On physical check up of the vehicle,
they found a country made pistol and three live bullets
and thereby the accused committed the alleged offences.
After filing the charge-sheet, cognizance was taken for the
alleged commission of offences and case was registered in
C.C.No.6546/2018. Thereafter, case was committed to the
Court of Sessions and it was registered in
S.C.No.236/2019.
4. On hearing, the Trial Court has framed the
charges against the accused for the alleged commission of
offences. The same was read over and explained to the
accused. Having understood the same, accused pleaded
not guilty and claimed to be tried.
5. To prove the guilt of the accused, prosecution
has examined in all 15 witnesses as PWs.1 to 15 and got
marked 21 documents as Exs.P1 to P21 and 26 material
objects marked as MOs.1 to 26. On closure of prosecution
side evidence, statement under Section 313 of Cr.P.C. was
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recorded. The accused has totally denied the evidence of
prosecution. However, he did not choose to lead any
defence evidence on his behalf.
6. Having heard the arguments on both sides, the
Trial Court has acquitted the accused for the offence
punishable under Sections 333 and 307 of IPC and Section
3 of Prevention of Damage to Public Property Act, 1984.
However, Trial Court has convicted the accused for the
offence punishable under Sections 353 and 332 of IPC and
accused is sentenced to undergo rigorous imprisonment
for a period of 2 years and to pay a fine of Rs.10,000/-.
For the offence punishable under Section 353 of IPC.
Further, accused is sentenced to undergo rigorous
imprisonment for a period of 3 years and to pay a fine of
Rs.10,000/- for the offence punishable under Section 332
of IPC, with default sentence. Being aggrieved by the
judgment of conviction and order on sentence, the
appellant has preferred this appeal.
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7. Learned counsel for the appellant-accused
would submit that, the impugned judgment of conviction
passed by the Trial Court is contrary to law and facts. The
Trial Court has not properly appreciated the evidence and
has erroneously convicted the appellant. The Trial Court
has ignored the fact that due to earlier enmity, the
complainant has initiated a false case against the
appellant.
8. It is further submitted that, the accused has
already undergone judicial custody more than 3 years.
However, the Trial Court has observed in the operative
portion that accused is in judicial custody under body
warrant. Hence, he is not entitled to the benefit of set off
as required under Section 428 of Cr.P.C., which is not
sustainable under law. The Trial Court has not properly
appreciated the evidence on record in proper perspective
and prays to allow this appeal and for modification of
sentence passed by the Trial Court.
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9. Per contra, the learned High Court Government
Pleader would submit that the Trial Court has properly
appreciated the evidence on record and passed the
impugned judgment in accordance with law and facts.
Absolutely there are no materials to interfere with
impugned judgment of conviction and order on sentence
passed by the Trial Court and sought for dismissal of this
appeal.
10. Having heard the arguments on both sides and
on careful examination of the materials on record, the
following points would arise for consideration:
(i) Whether the Trial Court is justified in
convicting the accused for the offence
punishable under Sections 353 and 332 of
IPC?
(ii) Whether the Trial Court is justified in not
giving benefit under Section 428 of
Cr.P.C.?
(iii) What order?
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11. My answer to the above points are as under:
Point No.1 : In the Affirmative.
Point No.2 : In the Negative.
Point No.3 : As per final order.
Regarding Point No.1:
12. The Trial Court has acquitted the accused for
the commission of offence under Section 333 and 307 of
IPC and Section 3 of Prevention of Damage to Public
Property Act, 1984. However, the Trial Court has convicted
the accused for the offence punishable under Sections 353
and 332 of IPC.
13. PW.1-Sangappa Hullur, Dy.S.P., has deposed as
to the alleged incident. PW.2-Chandrashekhar Tigdi, CPI,
has also deposed as to the alleged incident. PW3-
Basavaraj, Electrician has also deposed as to the mahazar
conducted by the police as per Exs.P3 and P4, and also
deposed as to the seized articles.
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14. PW.4-Kushanna, Head Constable, has deposed
in evidence that -
"2) On 14.12.2017, at 11pm PW-2 deputed me
and CW-11 to check the vehicles on Kalaburagi
Humnabad Highway at Tawaregere cross as he
received an information that a car was proceeding on
the said road along with illegal harms. On the
aforesaid deputation we went Tawaregere cross and
started checking the vehicles by putting, barricades
in zigzag manner. When we were on duty at
Tawaregere cross, at about 12 mid night our CPI, PSI
and DSP and other sub staff were also on the said
road to check the vehicles. When we were checking
the vehicles, our CPI received an information that
one white car crossed kinny border Without stopping
the vehicle despite giving signal by damaging
barricade. We alerted Tawaregere cross, at about
5.15am one white car came, we closed barricades on
the road, the driver of the vehicle hit to the
barricade, one of our staff CW-6 sustained injury to
his thigh, CW-1 gave warning to the driver of the
said car. The driver of the car took the said vehicle
towards Tawaregere, CW-1 fired his service pistol on
the air and gave again warning to the driver of the
vehicle. However, he proceeded further, CW-1 fired
on the left rear tyre. The vehicle proceeded left side
on the vacant place. The driver of the vehicle
alighted. On seeing, we found the said person was
Yashwant who is accused in various cases and roudy
sheeter. When I tried to catch hold the accused, he
was holding talwar and gave blow from the said
talwar towards my neck, I manage to escape but, I
sustained injury to my right shoulder. Further the
accused gave another blow on my right leg and he
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started running. PW-2 gave warning to accused not
to escape but still he was trying to escape, PW-2
fired from his service pistol on the left ankle of the
accused. Inspite of repeated warnings by our higher
officials the accused trying to cause harm to us and
also trying to us escape from us. Hence to save our
lives and also to apprehend the accused PW-2 fired
through his service pistol If I did not escape from the
blow given by accused with talwar I could have
received injury to my neck. The accused fell on the
ground. We all held the accused and on tharrough
inspection of the vehicle, we found a pistol and
magazine with three live bullets. My higher officials
secured tango vehicle and sent the accused to
hospital for treatment. My higher officials took myself
and CW-6 to United hospital for treatment. The
aforesaid car had no registration number. The said
car was Mahindra XUV-500.
3) I was admitted in United hospital for
about 7 days. On the same day CW-24 came to
hospital and recorded my statement and seized my
cloths which were stained with blood by drawing
Panchanama in the presence of panchas. I now see
one pair police uniform which were seized from me
by CW-24 which are already marked as M.O 21.
While seizing cloths, photographs were also taken,
now I see Ex.P.8 06 photographs and I am seeing
the two photographs along with panchas and CW-24.
I now see photographs of car and the place where
the incident took place, which were already
collectively marked as Ex P4.
15. PW.5-Basavaraj, PC No.185, has deposed in his
evidence that -
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"2) On 14.12.2017, at about 11pm, our PSI
deputed myself and CW-14 to Kinny border on the
premise that some unknown vehicle was transporting
illegal harms on Humnabad highway. Myself and CW-
14 went to Kinny border to check the vehicles as per
the directions. At about 4.30am on 15.12.2017, we
were checking all the vehicles, a white colour car
came in high speed, despite our signals it did not
stop, hit the side of barricade and proceeded further.
CW-14 immediately informed the same to our higher
officials. I have given statement before I.O."
16. PW.6-Hussain Basha, Head Constable, has
deposed in his evidence that -
"2) On 14.12.2017, at 11pm PW-2, myself and
CW-13 went to Tawaregere cross on the basis of the
information received by PW-2 that some unknown
vehicle was transporting illegal weapons on
Humnabad and Kalaburagi highway. By that time
PW-4 and 11 were already present there and
checking the vehicles which were moving on the
highway. CW-1 and PW-1 also came to the spot
along with CW-1, CW-8 and 9 were present. We all
were on duty on the said night.
3) At about 4.30am our higher officials
received wireless information from Kinny border that
one white unknown car crossed Kinny border by
damaging barricade despite giving signal to stop the
vehicle. At about 5.50am a white car came from
Humnabad side, we gave signal to stop the vehicle.
Despite our signal the driver of the said vehicle did
not stop but dashed to barricade which caused injury
to Kupendra on his right thigh. CW-1 gave strict
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warning to stop the vehicle but, he did not stop the
same, CW-1 fired his service pistol on air. The driver
of the vehicle took towards Tavaragera, when did not
stop the vehicle CW-1 fired on the left rear tyre from
his service pistol, due to the same the vehicle dashed
to road side board and proceeded towards left side.
We all surrounded the vehicle, the driver of the
vehicle alighted along with talwar, when PW-4 tried
to apprehend him, the driver of the car gave blow
with talwar, PW-4 tried to manage to escape from
the said blow and the talwar hit on his right
shoulder, PW-4 received bleeding injury. On seeing
the driver of the vehicle we noticed the said person
was Yashwant (Accused herein) who was accused in
various cases and also rowdy sheeter. The accused
gave one more blow with talwar which caused injury
to right leg of PW-4. CW-1 and PW-2 gave strict
warning to surrender. Inspite of that the accused
trying to cause harm to us and trying to escape, PW-
2 fired from his pistol on his left ankle with one
round, the accused further tried to assault the police
officials, PW-2 again fired one more round on the left
ankle, the accused fell on the ground we all held him.
On detail inspection of the vehicle we noticed one
pistol and magazine loaded with three live bullets in
dash board. Our higher officials sent the accused to
Govt. hospital for treatment and CW-6 and PW-4 to
United hospital.
4) I gave statement before CW-24 on 15.12
2017. 1 can identify the accused, vehicle, revolver,
magazine with live bullets and barricade. Witness
states the said vehicle was Mahindra XUV-500 but it
had no number plate."
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17. PW.7-Kupendra, Head Constable, has deposed
in his evidence that -
"2) On 14.12.2017, at 11pm CW-1, myself,
CW-8 to 10 went to Tawaregere cross on the basis of
the information received by CW-1 that some
unknown vehicle was transporting illegal weapons on
Humnabad and Kalaburagi highway. Similarly, CW-
14 and PW-5 were deputed at Kinny border to check
the vehicles. PW-1, 4, 6 also came to Tawaregere
cross on the basis of the said information. We were
checking the vehicles which were moving on the
highway
3) At about 4.30am, our higher officials
received wireless information from Kinny border that
one white unknown car crossed Kinny border by
damaging barricade despite giving signal to stop the
vehicle. At about 5.50am a white car came from
Humnabad side, we gave signal to stop the vehicle.
Despite our signal the driver of the said vehicle did
not stop but dashed to barricade which caused injury
to my left thigh. CW-1 gave strict warning to stop
the vehicle but, the driver of the car did not stop the
same, CW-1 fired his service pistol on air. The driver
of the vehicle took towards Tavaragera, when did not
stop the vehicle CW-1 fired on the left rear tyre from
his service pistol, due to the same the vehicle dashed
to road side board and proceeded towards left side.
We all surrounded the vehicle, the driver of the
vehicle alighted along with talwar, when PW-4 tried
to apprehend him, the driver of the car gave blow
with talwar, PW-4 managed to escape from the said
blow and the talwar hit on his right shoulder, PW-4
received bleeding injury. On seeing the driver of the
vehicle we noticed the said person was Yashwant
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(Accused herein) who was accused in various cases
and also rowdy sheeter. The accused gave one more
blow with talwar which caused injury to right leg of
PW-4. CW-1 and PW-2 gave strict warning to
surrender. Inspite of that the accused trying to cause
harm to us and trying to escape, PW-2 fired from his
pistol on his left ankle with one round, the accused
further tried to assault the police officials, PW-2
again fired one more round on the left ankle, the
accused fell on the ground we all held him. On detail
inspection of the vehicle we noticed one pistol and
magazine loaded with three live bullets in dash board
of the car. Our higher officials sent the accused to
Govt. hospital for treatment. PW-4 and myself were
sent to United hospital.
4) I gave statement before CW-24 on
15.12.2017. I can identify the accused, vehicle,
revolver, magazine with live bullets and barricade.
Witness states the said vehicle was Mahindra XUV-
500, but it had no number plate. The witness has
identified the accused who is present before the
court.
5) On the same day, CW-24, visited United
hospital and recorded my statement. CW-24 also
seized my pant with the help of two panchas by
drawing seizure Panchanama. I now see the blue
colour tore pant and the same is marked as M.O 24.
I was admitted in the hospital for about three days."
18. PW.8-Dr. Ravi, Specialist, GIMS, Kalaburagi,
has deposed in his evidence as to the examination of
accused and issuance of wound certificate as per Ex.P11.
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19. PW.11- and PW.15 have deposed as to their
respective investigation.
20. PW.10-Dr. Sudeendra Deshmuk, has deposed
as to the examination of the injured - Kupendra, who
came with the history of assault and he has examined
Kupendra and Kushanna and found the injuries as per
Ex.P13 and Ex.P14.
21. PW.12-Jagadev Moti is the Assistant Executive
Engineer, PWD, has deposed as to the sketch prepared as
per Ex.P16.
22. PW.13-Dr. Raghavendra B.G., Senior Scientific
Officer, RFSL, has deposed as to the reports submitted by
him as per Exs.P17 and P18.
23. PW.14-Dr.M.Kiran Kumar, has deposed as to
the report Exs.P19 and P20.
24. On careful examination of the entire evidence
on record, I do not find any material to discard the
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evidence of material prosecution witnesses. The Trial Court
has properly appreciated the evidence on record and
convicted the accused for the commission of offence under
Sections 353 and 332 of IPC. Hence, I answer point No.1
in the affirmative.
Regarding Point No.2:
25. With regard to sentence passed by the Trial
Court is concerned, the Trial Court has passed the
sentence as under:
ORDER
The accused is sentenced to undergo rigorous
imprisonment for a period of two years and to pay
fine of Rs.10,000/- (Ten thousand rupees only) for
the offence punishable under Section 353 of Indian
Penal Code. In default to pay fine amount, he shall
undergo simple imprisonment for a period of Six
months.
The accused is sentenced to undergo rigorous
imprisonment for a period of three years and to pay
fine of Rs.10,000/- (Ten thousand rupees only) for
the offence punishable under Section 332 of Indian
Penal Code. In default to pay fine amount, he shall
undergo simple imprisonment for a period of Nine
months.
The substantive sentences shall run
consecutively.
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Fine amount of Rs.20,000/-(Twenty thousand
rupees only) shall be vest to the State Government
towards expenses.
Records reveal that the accused is in JC under
body warrant. Hence, he is not entitled to the benefit
of set-off as required U/Section 428 of Cr.P.C.
M.O.2 to 12, 16 to 22, 24 and 26 are being
worthless, ordered to be destroyed, M.O.13 to 15
i.e., one screen touch Samsung mobile, one
Samsung mobile and one Carbon mobile shall be
confiscated to State Government; M.O.1/23 and 25
are service pistols of PW.2 and 9 ordered to be sent
to District Armory after receiving acknowledgment
only after appeal period is over.
The order of release of the vehicle bearing Reg.
No.KA-32/N-1658 dated 17.07.2021 belongs to
accused be made absolute after expiry of appeal
period.
Furnish copy of the Judgment and order of
sentence to accused or his counsel at free of cost
forthwith."
26. The Trial Court has refused to give benefit of
set off under Section 428 of Cr.P.C. on the ground that the
accused was in judicial custody under body warrant. The
Trial Court has not assigned proper reason regarding
giving benefit of set off as required under Section 428 of
Cr.P.C.
27. Section 428 of Cr.P.C. contemplates that,
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"428. Period of detention undergone by the
accused to be set off against the sentence of
imprisonment.
- where an accused person has, on conviction, been
sentenced to imprisonment for a term , not being
imprisonment in default of payment of fine, the
period of detention, if any, undergone by him during
the investigation, inquiry or trial of the same case
and before the date of such conviction shall be set off
against the term of imprisonment imposed on him on
such conviction, and the liability of such person to
undergo imprisonment on such conviction shall be
restricted to the remainder, if any, of the term of
imprisonment imposed on him."
28. The Trial Court has committed an error in this
regard. Hence, the appellant-accused is entitled for benefit
of set off under Section 428 of Cr.P.C.
29. The Trial Court has passed substantive
sentences to run consecutively. But in this regard, the
Trial Court has not assigned any reason. Considering the
facts and circumstances of the case, it is just and proper
to modify holding that substantive sentences shall run
concurrently. Accordingly, I answer point No.2 in the
negative.
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Regarding Point No.3:
30. For the aforesaid reasons and discussions, I
proceed to pass the following:
ORDER
(i) The appeal is partly allowed.
(ii) The judgment of conviction passed by the
III-Additional District and Sessions Judge,
at Kalaburagi in S.C.No.236/2019 dated
26.09.2022 is confirmed.
(iii) The sentence passed by the Trial Court for
the offence punishable under Section 353
and 332 of IPC is also confirmed.
(iv) The sentences shall run concurrently
instead of consecutively as ordered by the
Trial Court.
(v) The Additional Registrar General is directed
to send a copy of this judgment to the
concerned jail authorities.
Sd/-
(G BASAVARAJA)
JUDGE
SDU
LIST NO.: 1 SL NO.: 43
CT:BH
