Partly allowed

Bhujang Babu Chougale, v. State of Karnataka

Karnataka HC27 Feb 2019CRL.RP/2137/2011

Case brief

AI extract

What is this about?

The High Court in revision challenged the conviction and sentence for offences under the IPC involving an assault with a sword during a procession. While upholding the conviction, the Court reduced the imprisonment term and enhanced the fine, ordering compensation to the injured party.

What did the court decide?

Imprisonment reduced to six months; fine enhanced to Rs.20,000; Rs.15,000 awarded to injured complainant as compensation.

Bhujang Babu Chougale, Vs State of Karnataka — Criminal Trial and Appeal | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 27^TH DAY OF FEBRUARY, 2019

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BEFORE

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THE HON’BLE MR. JUSTICE H.P. SANDESH CRIMINAL REVISION PETITION NO.2137/2011

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BETWEEN:

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BHUJANG BABU CHOUGALE, AGE: 27 YEARS, OCC: AGRICULTURE, R/O VIJAY GALLI, MACHE, TAL & DIST: BELGAUM.

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…PETITIONER

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(BY SRI.S.B.DEYANNAVAR, ADVOCATE)

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AND:

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STATE OF KARNATAKA, THROUGH BRPS, BELGAUM, R/B SPP CIRCUIT BENCH DHARWAD.

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…RESPONDENT

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(BY SRI.A.R.RODRIGUES, AGA)

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THIS REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C. SEEKING TO SET ASIDE THE ORDER PASSED BY THE BOTH THE COURTS BELOW AND DIRECT THE JUDGEMENT AND ORDER PASSED BY THE II-ADDL. I/C IVADDL. DIST. & SESSIONS JUDGE, BELGAUM, IN CRL.A.NO.156/2007 AS "ANNEXURE-B", CONSEQUENTLY THE CONVICTION AND SENTENCE PASSED BY THE JMFC II-COURT, BELGAUM, IN C.C.NO.1058/2006 ORDER DATED 13.07.2007 AS "ANNEXURE-A" BE SET ASIDE AND THE REVISION PETITIONER BE ACQUITTED FOR THE OFFENCES P/U/S 323, 324, 427, 504, 506 R/W 149 OF IPC.

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THIS REVISION PETITION COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This revision petition is filed under Section 397 of Cr.P.C. challenging the judgment of conviction passed in C.C.No.1058/2006 dated 13.07.2007 on the file of the JMFC-II Court, Belagavi convicting the accused No.1 for the offences punishable under Sections 143, 148, 323, 326, 324, 427, 504, 506 read with Section 149 of IPC and also challenging the judgment of confirming the judgment of conviction passed against this revision petitioner in Crl.Apl.No.156/2007 and the sentence imposed by the Court below in respect of this revision petitioner for two years and also a fine of Rs.5,000/- in respect of offence punishable under Section 326 of IPC and also convicting this revision petitioner for the offence under Section 143 of IPC and imposing a fie of Rs.500/- and also for the offence under Section 148 of IPC sentenced to undergo simple imprisonment of four months and to pay a fine of

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Rs.500/- and for the offence under Section 323 of IPC to pay a fine of Rs.500/- and for the offence under Section 427 of IPC imposing a fine of Rs.500/- and for the offence under Section 504 of IPC a fine of Rs.500/- and also for the offence under Section 506 to pay a fine of Rs.500/- and in the appeal, the first appellate Court allowed the appeal in part insofar as to the accused Nos.2 to 6 imposed fine.

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The factual matrix of the case is that one Tavanappa Bharamanna Majgaonkar of Mache village filed a complaint alleging that on 3.5.2006 at about 11.00 p.m. when the complainant was in his house along with his family members, at that time, Shivaji Jayanthi procession was moving in front of his house, so the complainant was standing in front of his house and the petitioner was also present in the said procession and after seeing the complainant, the present petitioner abused him in filthy and vulgar

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languages and tried to assault the complainant with sword, when the complainant raises his hand, the blow fell on his little finger of the right hand and the complainant sustained bleeding injuries. The other allegation is that the other accused persons assaulted the other persons. Thereafter, the complainant filed a complaint before the Police and after the investigation, the police filed charge sheet. The Court below after recording the evidence of PW1 to 12 and documents at Exs.P1 to P7 and also the material objects MOs 1 to 6, convicted this petitioner and also other accused persons. Being aggrieved by the judgment of the conviction, Crl.A. No.156/2007 is filed and the first appellate Court insofar as to this petitioner is concerned confirmed the judgment of conviction and sentence.

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Being aggrieved by the judgment of

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conviction and confirmation, the present revision petition is filed contending that the judgment of

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conviction is one sided and both the Courts below have not considered the fact that there is case and counter case and did not take into consideration that there was long standing civil dispute between the parties. The other contention is that the police did not cite any other witnesses those who were present along with the procession and recorded the statements of the interested witnesses even though the incident was taken place when the Shivaji Jayanthi was taken place and also did not take note of the fact that PW1 has sustained injuries to his little finger and also failed to take note of the fact that PW3 and 4 having a criminal back ground and given much importance to the case of the prosecution and the very entire approach of the Court below is erroneous.

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The counsel for the petitioner in his

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arguments reiterating the grounds urged in the petition contended that there are no any independent witnesses

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even though it is the case of the prosecution that the incident was taken place when the procession was going on in front of the house of the complainant and also failed to take note of the fact that nature of the injuries sustained by the complainant is only to the little ring finger and the punishment awarded by the Courts below is very harsh, in spite of the material on record discloses that the injury is only to the little ring finger and there are no other injuries to PW1 and the punishment awarded against the petitioner is harsh and the Courts below failed to take note of the contradictions elicited in the cross-examination of PW1, hence, prayed this Court to set-aside the order of conviction passed by the Courts below.

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Per contra, the learned AGA appearing on

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behalf of the respondent-State in his arguments contends that the Courts below considered the evidence of PW1 who is injured and also considered the evidence

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of other injured persons i.e. PW1, 4 and 10 and PW7, 8 and 5 are the eye-witnesses to the incident and the IO who conducted the investigation is examined as PW12 and also considered the evidence of all the witnesses and nothing is elicited from the mouth of the prosecution to disbelieve the case of the prosecution. Hence, there are no grounds to interfere with the judgment of conviction passed by both the Courts below and prayed this Court to dismiss the revision petition.

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Having heard the arguments of the revision petitioner’s counsel and also learned AGA, this Court has to examine whether this Court can exercise the revisional jurisdiction in coming to the conclusion that both the Courts below have committed an error in appreciating the evidence and said finding is perverse in nature and requires interference by this Court.

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The main contention of the revision

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petitioner’s counsel is that the prosecution is relied upon only interested witnesses who have been examined before the trial Court and none of the independent witnesses have supported the case of the prosecution and the injuries sustained by PW1 is also cut lacerated wound over the lateral aspect of right ring finger 2cms x 0.5cms with suspected fracture of underlying gone with bleeding present.

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PW1 who is the injured in his evidence

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reiterated that this petitioner assaulted him with sword when he questioned him about the abuse made against him when this petitioner abused him saying “Bosudi Magane, Horage Ba, Allenu Nintu nodati”, at that time, he assaulted the complainant with sword on his head and when he tried to ward off the said blow by putting his hand across and at that time, he sustained injuries to his right ring finger and sustained fracture. In the

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cross-examination, it is elicited that since last 25-30

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years, there is dispute between them in respect of boundary of the land and the suggestion was made that many cases of assault have been registered against them and the said suggestion was denied and further suggestion was made that when the procession was going on in front of his house, he himself and his son attacked this petitioner with sickle and others assaulted him with tile pieces and the said suggestion was also denied and further suggestion was made that he was running inside the house, he fell down and sustained injuries and the said suggestion was also denied.

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PW2 and 3 are the panch witnesses and their evidence is not material with regard to the incident is concerned. PW4 is the son of PW1 and he also reiterated the evidence of PW1 and in the crossexamination, suggestion was made that he himself and Anil CW5 attacked this petitioner when he was alone in

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the procession and the said suggestion was denied and the other defence was taken in the cross-examination that PW1 was assaulted the petitioner with sickle and at that time, PW1 sustained injuries to his right ring finger and the said suggestion was denied.

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PW5 who is the neighbourer in his evidence he says he has witnessed the incident along with the others and in the cross-examination he admits that he heard the noise and came out from the house and his house is two houses away from the said spot and at that time, CW1, 4 and 5 were present; only he saw the incident of quarrel and he further says that he saw the fighting only and he does not know what had happened prior to that and he went to the spot and pacified the quarrel.

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PW6 is the doctor who examined the injured PW1 and he says that the injured has sustained

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fracture of underlying and X-ray was also taken of right wrist with fingers and it confirms the fracture of phalanx of right ring finger. In the cross-examination, in respect of the injuries sustained by PW1, wound certificate which is marked as Ex.P3, answer is elicited that the said injury may be caused by coming in contact with sharp edged tiles.

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PW7 is also another eye-witness who

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witnessed the incident. In his cross-examination, he admits that he was residing in the lane situated after one lane from the house of CW1 and he is having acquainted with PW1 from last 10-15 years and he was going along with CW6 and 8 and no police with the procession and police came to the spot after the incident was taken place and the incident was taken place in front of the house of PW1 and he says that all the accused abused and threatened and the suggestion was made that PW1 and his family members assaulted this

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petitioner and caused him grievous injuries and in order to save CW1 and his family members, he is deposing falsely and the said suggestion was denied.

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PW8 is also another eye-witness and in his evidence he says that the accused picked up quarrel and he was having sword and sticks and this petitioner assaulted PW1 with MO1-Sword on his right hand little finger and in the cross-examination, he admits that there is distance of over 500 feet from the house of the complainant. Except the said admission, nothing is elicited from the mouth of PW8 and further he says that he was at the distance of about 4 to 5 feet at the time of the incident; first exchange of words took place and then quarrel started and he confirms that PW1 had sustained bleeding injury to his ring finger.

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PW9 is the scribe of the complaint and he says that CW1 had sustained injury to his right hand

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and as such he was unable to write the complaint, hence, he wrote the complaint. In the crossexamination, he admits that when he reached the said spot at about 10.45 p.m., the incident was already over and police had come there.

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PW10 who is the grand-son of PW1 and he says that the accused pelted stones and damaged the Hero Honda motor cycle and they broke the light and tiles in the roof by pelting stones and at the time of going, all the accused gave life threat to CW1. In the cross-examination, it is elicited that his father was murdered in the land and he also admits that since beginning there is dispute between them. The suggestion was made that false complaint was filed and the said suggestion was denied.

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PW11 is the police witness who received the complaint and registered the case. PW12 is the

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Investigating Officer who conducted investigation and he has spoken with regard to conducting of panchanama and seizure of MOs and in the crossexamination, suggestion was made that CW5 and his brother names are shown in the rowdy list and he says that he does not know about the same and nothing is elicited in the cross-examination with regard to the investigation is concerned, except suggestion that false documents created to suit the case against the accused are prepared by him and the said suggestion also denied.

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Having considered the evidence of witnesses PW1 to 12, PW1 is the injured witness and he has explained and narrated how the incident took place and he has categorically stated that when he was standing

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in front of his, this petitioner abused him and when he questioned the same, the petitioner assaulted him with sword and when he tried to ward off the blow on his

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head, he put across his hand and at that time, he sustained injuries to his right ring finger and the doctor who has been examined as PW6 also says that on examination of PW1, he found that he has sustained injuries to his right ring finger and after X-ray it confirms that he has sustained fracture of middle phalanx of right ring finger. No doubt in the crossexamination of PW6, it is elicited that the injuries sustained by PW1 also may be caused by coming in contact with sharp edged tiles and in the crossexamination, no such suggestion was made that tiles came in contact with PW1 and only suggestion was made that when he was running inside the house fell down and sustained injuries. The very defence is contrary while cross-examining the PW1 and PW6 and revisional petitioner is only before this Court as accused No.1 and none of the other accused have filed revision petition before this Court. The judgment of conviction

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against accused Nos.2 to 6 is also confirmed by the appellate Court by reducing the sentence only to pay fine amount and it appears that they did not choose to contest the same.

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On perusal of the evidence of PW4, no doubt

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he is the son of PW1 and in the cross-examination of PW1 and 4, answer elicited that they were having civil dispute from long back and other witnesses PW5, 6 and 7 who are also the other eye-witnesses to the incident and nothing is elicited from these witnesses that they are relatives and PW5 has categorically denied the said suggestion. Though the petitioner’s counsel contends that these witnesses are interested witnesses, PW7 also eye-witness to the incident. In the cross-examination, except answer elicited that he came to the spot after the completion of the incident, police came to the spot, nothing is elicited that he was not present at the time of the incident and in the cross-examination of PW8, who

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is also eye-witness, except eliciting that he was at the distance of about 4 to 5 feet at the time of the incident; first exchange of words took place and then quarrel started and the evidence of confirms that PW8 confirms the evidence of PW1 with regard to how the incident took place.

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For having considered the evidence available on record, PW1, 4, 5, 7 and 8 and out of that PW1 is the injured and other witnesses are independent witnesses except PW4 and grandson who witnessed the incident was taken place when the procession was going on in front of house of PW1. In order to come to the other conclusion, I do not find any material irregularity committed by the trial Court as well as first appellate Court in confirming the judgment of the trial Court. In order to exercise the revisional jurisdiction, there must be perverse finding by the Courts below and having taken note of the material evidence before the Court, I

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do not find any reason to exercise the revisional jurisdiction to come to other conclusion. I do not find any merit in the revision petition to set-aside the judgment of both the Courts below. The first appellate Court while appreciating the evidence has taken note of the evidence particularly the evidence of PW1, 4 and 10 and also eye-witnesses PW5, 7 and 8 and in para-15 discussed in detail and comes to the conclusion that guilt is established and the trial Court has rightly convicted the accused and further observed that the complainant has specifically deposed regarding assault made on himself and CW4 and 5. Though these witnesses were cross-examined at length, nothing has been elicited so as to impeach their evidence. Hence, I do not find any merit to set-aside the judgment of the trial Court as well the first appellate Court.

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20. Insofar as to the sentence is concerned, the

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Court below awarded maximum sentence of two years in

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respect of the offence under Section 326 of IPC and also sentenced to other offences four months and fine. In the evidence of the doctor PW6, he says that PW1 has sustained injury to his right ring finger and that is the only injury sustained by him. It is the evidence of PW1 that he put across his hand in order to ward off the blow aimed on his head and he sustained injury to his right ring finger, otherwise he would have inflicted to his head. This Court has to take note of the fact that the petitioner/accused assaulted the complainant with sword and also incident was taken place when the procession was going on in front of the house of PW1 and it is emerged in the evidence that there was civil dispute between them, he was part of procession with an intention to commit the offence with sword and same has to be taken note of it while awarding the sentence.

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The counsel for the revision petitioner contends that it is a matter of the year 2006 and instead of sentencing him to undergo imprisonment, it is appropriate to impose some more fine and to consider the same leniently. I have already pointed out that he came with sword and committed an offence and also same has to be kept in mind.

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Having taken note of the said fact into consideration, fine only does not meet the ends of justice. However, taking into note of the fact that PW1 has sustained grievous injury of fracture and revision petitioner if intends to take away his life with deadly weapons, he would have inflicted more injuries that has to be taken note of it and having considered the said aspect, it appears that the trial Court imposed the sentence of imprisonment of two years is little harsh and same can be reduced to six months by enhancing the fine amount from Rs.5,000/- to Rs.20,000/-.

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Hence, imprisonment is reduced to six months with fine of Rs.20,000/-.

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The injured PW1 was in the hospital when he has sustained fracture of right ring finger and he took treatment and spent more money for treatment, out of Rs.20,000/- an amount of Rs.15,000/- is ordered to pay to the PW1 on proper identification. I do not find any reason to enhance the fine amount in respect of other offences. For other offences, sentence imposed by the trial Court is only awarding fine amount and same may be retained and unaltered. If the revision petitioner has deposited the fine amount in terms of the judgment of the trial Court, excluding the same, has to deposit the balance amount within one month. The sentence shall run concurrently. The accused gets the benefit of Section 428 of Cr.P.C. if he was in custody during the trial.

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23. With the above modifications, the revision

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petition is partly allowed.

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Sd/JUDGE

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Sh/JTR

Bhujang Babu Chougale, v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Bhujang Babu Chougale, v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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