Adiveppa Vs the State of Karnataka

THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C. PRAYING TO ALLOW THIS CRIMINAL APPEAL BY SETTING ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 20.03.2015 PASSED BY THE ADDL. DIST. & SESSIONS JUDGE, GADAG, IN S.C.NO.59/2012 FOR THE OFFENCES P/U/S 323, 324, 307, 354, 504, 506, 447, 427 R/W 149 OF IPC AND ACQUIT THE APPELLANT OF THE OFFENCES

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HC-KAR

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P/U/S 323, 324, 307, 354, 504, 506, 447, 427 R/W 149 OF IPC, IN THE INTEREST OF JUSTICE AND EQUITY.

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IN CRL.A NO.100087/2015 BETWEEN:

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ADIVEPPA S/O NINGAPPA KATTENNAVAR, AGE: 37 YEARS, OCC: AGRICULTURE.

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BHIMAVVA W/O NINGAPPA KATTENNAVAR AGE: MAJOR, OCC: AGRICULTURE,

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NEELAVVA W/O SOMAPPA KATTENNAVAR AGE: MAJOR, OCC: AGRICULTURE,

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MANJAVVA W/O SHIVANANDAPPA KATTENNAVAR AGE: MAJOR, OCC: AGRICULTURE, ALL ARE R/O OF MENASIGI, TQ: RON, DIST: GADAG.

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…APPELLANTS

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(BY SRI. K.L. PATIL ,ADVOCATE)

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AND:

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THE STATE OF KARNATAKA THROUGH RON PS REP. BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA, DHARWAD.

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…RESPONDENT

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(BY SRI. JAIRAM SIDDI, HCGP)

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THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C. PRAYING TO ALLOW THIS CRIMINAL APPEAL BY SETTING ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 20.03.2015 PASSED BY THE ADDL. DIST. & SESSIONS JUDGE, GADAG, IN S.C.NO.59/2012 FOR THE OFFENCES P/U/S 323, 324, 307, 354, 504, 506, 447, 427 R/W 149 OF IPC, AND ACQUIT THE APPELLANT OF THE OFFENCES P/U/S 323, 324 307, 354, 504, 506, 447, 427 R/W 149 OF IPC, IN THE INTEREST OF JUSTICE AND EQUITY.

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THESE APPEALS, COMING ON FOR FURTHER ARGUMENTS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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HC-KAR

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA)

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Heard Sri.K.L.Patil, learned counsel for appellants

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and Sri.Jayaram Siddi, learned counsel for respondents.

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Accused Nos.2 to 7 in S.C.No.59 of 2012 are the

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appellants, challenging the conviction order passed against them.

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The operative portion of the impugned order and sentence reads as under:

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ORDER:

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“Accused No.1 not found guilty for the offences U/s 323, 324, 307, 354, 504, 307, 506, 447, 427 R/W Sec. 149 of IPC. A 1 is acquitted U/s 235(1) Cr.PC. Bail bond of the accused No.1 stands cancelled. Accused No.1 is set at liberty.

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Accused No.2 to 7 are found guilty for the offences U/s 323, 324, 307, 354, 504, 307, 506, 447, 427 R/W Sec. 149 of IPC. A 2 to 7 are convicted U/s 235(2) Cr.P.C.

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For hearing on sentence,”

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ORDER

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“Accused No. 2 to 7 are convicted and sentenced to undergo 6 months Sl for the offence punishable U/s 324 of IPC.

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Said Accused No. 2 to 7 are convicted and sentenced to undergo 2 months SI for the offence punishable U/s 323 of IPC.

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Said Accused No. 2 to 7 are convicted and sentenced to undergo 6 months SI for the offence punishable U/s 354 of IPC.

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HC-KAR

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Said Accused No. 2 to 7 are convicted and sentenced to undergo 6 months SI for the offence punishable U/s 427 of IPC.

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Said Accused No. 2 to 7 are convicted and sentenced to undergo 3 months SI for the offence punishable U/s 447 of IPC.

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Said Accused No. 2 to 7 are convicted and sentenced to undergo 6 months SI for the offence punishable U/s 504 of IPC.

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Said Accused No. 2 to 7 are convicted and sentenced to undergo 6 months SI for the offence punishable U/s 506 of IPC.

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Said Accused No. 2 to 7 are convicted and sentenced to undergo 3 years Sl for the offence punishable U/s 307 of IPC and pay fine of Rs. 1,000/-each. In default of payment of fine the said accused No.2 to 7 shall undergo SI for 3 months.

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All the sentences runs concurrently.”

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Facts in the nutshell, which are utmost necessary for disposal of the present appeal are as under:

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4.1 Appellants, along with Ningappa (Accused No.1) who

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is no more, have been charge sheeted for the offences punishable under Section 323, 324, 307, 354, 427, 504, 506 read with Section 34 Indian Penal Code (hereinafter referred to as “the IPC”), based on the complaint lodged by Smt.Bhimavva Ningappa Kattennavar.

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4.2 In respect of the civil dispute, a partition suit between the complainant and the accused, in respect of land

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adjacent to Holeyaur road, an altercation took place on 25.09.2011 at about 10.00 a.m. At that time, when the complainant, her husband, and her brother-in-law, and sisters-in-law were present at the place of incident, all the accused persons came there and started harvesting the standing crop. At that juncture, when the same was resisted by the complainant party, the accused persons said to have assaulted them with a sickle.

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4.3 As a result, complainant party sustained injuries and were shifted to hospital. After registering a criminal case, thorough investigation, the police initially charge sheeted three persons, who are accused No.1,2 and 4 as per the FIR. Subsequently, four other persons were impleaded as additional accused by filing an application under Section 319 of the Code of Criminal Procedure (hereinafter referred to as “the Cr.P.C.” for short).

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Learned Trial Magistrate committed matter to the Sessions Court in view of the Investigating Agency invoking Section 307 of the IPC in the charge sheet.

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On committal, learned Principal District Judge secured the presence of the accused persons and framed the

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charges for the aforesaid offences. Appellants, including the first accused, pleaded not guilty and therefore trial was held.

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In order to bring home the guilt of the accused persons, the prosecution examined, in all, 14 witnesses as PW1 to PW14 and placed on record 14 documents, which were exhibited and marked as Ex.P1 to Ex.P14, comprising the complainant, cloth seizure panchnama, ROR extract, spot mahazar, wound certificates, signatures of the Doctor on the wound certificates, statements of PW-11 and PW-12 before the Investigating Officer, copy of the FIR and RFSL report. The prosecution also placed on record eight material objects, namely sickle, stick, half shirt, white dothar, yellow saree, half shirt, green shirt and white shirt as MO-1 to MO-8.

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On conclusion of recording of evidence, learned Trial Judge recorded the statements of the accused as contemplated under Section 313 of the Cr.P.C. Appellants herein denied the incriminating circumstances found against them in the prosecution evidence. They did not choose to lead any defense evidence.

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Thereafter, learned Trial Judge heard the arguments of the parties in detail and, on cumulative consideration of the

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material on record, convicted the accused as aforesaid by recording a categorical findings in paragraph No.28 and 29 as

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under:

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“28. The learned counsel for the accused vehemently argued and strongly contended before me that the accused and complainant are belongs to the same family and there is a land dispute in between accused and the complainant and the entire case was registered against the accused persons due to the political pressure and one of the injured witnesses ie. C.W.1 husband is the gram panchayat member and much is argued before the court that alleged injured persons and complainant purposely went to the Nargund hospital though the PHC of Shirol and Holealur and Konnur are nearer than the Nargund and further argued before me that the C.W.1 husband is the gram panchayat member and at that time the Nargund MLA was representing for BJP party and in order to create the documents the injured persons went to Nargund though they have not sustained the injures. In this regard the witnesses was cross examined, one of the witness i.e. P.W.8 Neelavva Kattennavar clarified the above said quarry of counsel for accused stated that:

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£ÀªÀÄä d«ÄÃ£ÀÄ ºÉÆ¼ÉD®Æj¤AzÀ MAzÀÄ Q.«Ä. DUÀÄvÀÛzÉ C¯Éè ¸ÀPÁðj D¸ÀàvÉæ EzÉ. ºÉÆ¼ÉD®Æj£À°è DA§Ä¯É£ïì E®èzÀ PÁgÀt £ÀgÀUÀÄAzÀ DA§Ä¯É£ïì vÀj¹zÉªÀÅ.

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The said evidence clearly shows that due to the non availability of the ambulance the injured persons were brought to the Nargund Hospital. Therefore, the say of the accused that purposely the injured persons came to the Nargund hospital for creating false document is not acceptable one. Further I am of the opinion that mere saying

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that relations are not good and there is a civil dispute in between the parties, it does not mean that no such incident took place on the date of incident. In the present case the complainant and other injured present witnesses have clearly stated the acts and over acts of each accused on them and more particularly the injuries sustained by them and further the learned counsel for the accused vehemently argued and strongly contended before me that all the alleged injured witnesses are the members of one and the same family and interested witnesses and they have falsely implicated the accused to deprive co-parcenary right of the accused persons from the family property. In my opinion the relations does not effect the credibility of witness. Mere relationship does not make any one interested. The evidence of interested witnesses can be acted upon if it found reliable after careful scrutiny of evidence on hand. Further the relationship is not sufficient to discard the witness unless motive spray the real culprit and falsely implicated the innocent person is shown. The close relatives and injured may naturally rush to seen on hearing the hue and cry of the injured relationship will not detract from their evidence, the relative of the injured persons if a natural witnesses is not a interested witnesses. Therefore, in my opinion that mere saying that injured witnesses are related to each other does not mean that there is no incident took place.

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29. The testimony of injured witnesses is accorded a special status in law, such a witness comes with a guarantee of his presence at the scene of the crime and is unwillingly to spare actual assailment in order to falsely implicate some one. In the present case the prosecution examined the witnesses who are injured and the eye witness and their evidence is convincing.”

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Being aggrieved by the same, the appellants have preferred the present appeal on following similar grounds in both the appeals:

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“The impugned judgment and order of conviction and sentence passed by the learned Sessions Judge, is contrary to law, facts and materials placed on record, and as such, the same is liable to be set aside.

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The said judgment and order of conviction and sentence suffers from several infirmities. Hence, the same is liable to be set aside and reversed.

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It is submitted that, the investigating officer has not investigated the case properly and there are lacunas in the investigation and investigating officer has not come out with the correct incident. In the alleged incident the accused have also suffered grievous injuries and they were shifted to Ron Government Hospital. In the Ron Government Hospital MLC was done and treatment was given to the accused. The investigating officer has arrested the accused from the hospital and he has failed to take note of the injuries suffered by the accused. Hence, the entire story of the prosecution is doubtful and concocted.

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It is submitted that, there are material contradictions in the evidences of alleged injured witness and their evidence is not corroborating with other witnesses. The trial court has failed to appreciate this aspect of the material and concluded that they are minor discrepancies. These important contradictions of the witnesses are considered the entire prosecution case would be doubtful. Hence, interference of this Hon'ble Court is warranted.

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It is submitted that, accused No 3 appellant No therein is working in KSRTC Corporation and on the alleged date of incident he was on his duty. Therefore, the presence of accused No 3 at the spot of incident cannot be believed. The complainant has falsely implicated this appellant in this case.

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It is submitted that, PW 11 one of the eye witness to the incident has turned hostile and he has admitted that he does not know about the incident and he has not witnessed the incident and has not intervened in the said quarrel and has not given any statement before the police. As such the entire story of the prosecution regarding the alleged incident is doubtful and prosecution has not put forth the factual incident. Hence, interference of this Hon'ble Court is warranted.

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It is submitted that, the prosecution has failed to prove the alleged spot of incident. The panch witnesses have turned hostile and have not supported the case of the prosecution. As such the alleged incident and the spot of incident has alleged by the prosecution is doubtful. Hence, interference of this Hon'ble Court is warranted.

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It is submitted that, PW 12 who is scribe of the complainant has turned hostile; he has stated that complainant has not called him and not asked to write the complaint. He has further admitted that he has written the complaint on say of one Kamanagouda. Therefore entire case of the prosecution is doubtful and prosecution has suppressed the important materials and has not put forth the factual incident. This aspect of the matter is not properly considered by the trial Court.

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The learned Judge, while passing the said judgment, order of conviction and sentence, has not appreciated the legal nuances involved in their proper perspective, which has resulted in substantial miscarriage of justice vis-a-vis the appellants.

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The appreciation of evidence by the trial Court, while passing the impugned judgment and order of conviction and sentence is not in its proper prospective. Hence, the same is liable to be set aside.

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It is submitted that statements of PW 1 to PW 14 has given incoherent and contradictory answers during his crossexamination. Nevertheless, the learned Sessions Judge has handpicked tits from the evidence and has conveniently under mined that part of the evidence which augments the case of the accused.

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Thus, viewed from any angle, the impugned judgment and order of conviction and sentence is even otherwise erroneous, and unsustainable in law and hence the same is liable to be set aside.”

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Sri.K.L.Patil, learned counsel for the appellants reiterating the above grounds, vehemently contented that the incident is not at all pre-planned so as to invoke Section 34 of the CPC. When a serious dispute and partition suit are pending between the parties, entry into the joint family property by the appellants could not have been treated as a criminal trespass.

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Therefore, the conviction of the appellants by impugned judgment is bad in law and he sought setting aside of the same by allowing the appeal.

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He would further contend that first accused is no more and thereafter the civil case is proceeding by bringing his

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legal representatives on record. Admittedly, accused No.3, who is appellant No.2 before this Court is a driver in KSRTC and has furnished the necessary documents to establish that he was not present at the place of incident. Therefore, his conviction is bad in law, which has not been properly appreciated by the learned Trial Judge and thus sought for allowing the appeal.

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He would also contend that unnecessarily appellant No.2 has been dragged into the proceedings, that too by filing an application under Section 319 of the Cr.P.C., itself would go to show that somehow the complainant party was interested in taking action against the accused party and by concocting a false story and thus sought for allowing the appeal.

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Alternatively, Sri.K.L.Patil, would contend that in the event this Court holding that the incident has taken place, having regard to the injuries noted in the wound certificates, it is crystal clear that none of the injured persons have suffered the grievous injuries.

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Therefore, conviction of the appellants for the offence under Section 307 of the IPC is per se incorrect and the custody period already undergone by the appellants may be treated as the period of imprisonment for the offence under Section 324 of

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the IPC by scaling down the offence from Section 307 to Section 324 of the IPC and allowing the appeal to that extent.

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Insofar as the second appellant is concerned, he emphasized, that he is entitled to a clear acquittal in view of the admission made by the investigation officer, who is examined as PW-14 regarding the veracity of the certificate issued by the higher officials of the appellant No.2 and sought for suitable order.

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Per contra , Sri.Jairam Siddi, learned High Court Government Pleader, supported the impugned order. He would further contend that mere pendency of a civil dispute for partition itself would not be sufficient enough for the appellants to take high handed action against the complainant party not only by cutting the standing crop and assaulting them with a sickle.

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In such matters, intention must be gathered from the fact that the accused chose a vital part, namely the head to assault with a sickle. Therefore, all ingredients to attract the offence under Section 307 of the IPC are made out and thus sought for dismissal of the appeal.

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Insofar as the alternate submission is concerned, Sri

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Jairam Siddi would contend that such an argument cannot be countenanced in law, as the nature of injury alone is not the decisive factor while considering the incident and the intention of the appellants has to be gathered from the totality of the circumstances and sought for disposal of the appeal.

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Insofar as second appellant is concerned, he contended that mere marking of a document is not sufficient to prove the plea of alibi in the absence of oral evidence, and thus sought for dismissal of the appeal in toto.

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Having heard the arguments of both sides, this Court has perused the material on record meticulously.

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On such perusal of the material, the following points arise for consideration:

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(i) Whether the prosecution has successfully established all ingredients to attract the offences punishable under Sections 323, 324, 307, 354, 427, 504, 506, read with Section 34 of the IPC?

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(ii) Whether the appellants have made out a case that impugned Judgment is suffering from legal infirmity or perversity and thus calls for interference?

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(iii) Whether the sentence is excessive? (iv) What order?

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Regarding Point No.1 to 3:

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These points are taken up together for consideration in order to avoid repetition of the material evidence on record.

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In the case on hand, the identity of the accused persons is not in dispute, as they are relatives of the complainant and other injured witnesses. Admittedly, there was a dispute with regard to land bearing survey No.214/1 of Menasigi village, Holealur Hobli, Ron Taluk, Gadag District.

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In continuation of the said dispute, on the fateful day, namely 25.09.2011, an altercation took place on the land. According to the complainant, the accused party trespassed into the said land and obstructed the agricultural operations being carried out by the complainant, her husband, her brother-in-law, and her sisters-in-law and started cutting standing crops.

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When the actions of the accused persons were resisted by the complainant party, the accused assaulted the complainant party with sticks and a sickle, resulting in injuries, as evidenced by the wound certificates marked at Ex.P5 to P10. The incident was pacified thereafter, and the injured persons were shifted to the hospital. The doctor who examined them on 25.09.2011 issued the wound certificates on the same day.

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According to the complainant party, they subsequently took treatment at Naragund Hospital; however, no material in support of the said treatment has been placed on record.

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Pursuant to the complaint lodged by Bheemavva (PW1), the police registered a case and issued the FIR, which is marked as Ex. P13. In the complaint at Ex. P1, Bheemavva has narrated, in graphic detail, the incident that occurred on 25.09.2011 at about 12:30 p.m.

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After registering the case, the police conducted a thorough investigation and initially filed a charge sheet against accused Nos.1, 2, and 4. However, based on the material evidence placed on record through the testimony of Bheemavva, the prosecution filed an application under Section 319 of Cr.P.C., pursuant to which four more accused persons were arraigned in the case.

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Bheemavva and the other injured witnesses have specifically deposed about the incident, practically in verbatim with the averments made in the complaint, and they have also identified the accused persons before the Court. The seizure panchanama and spot panchanama further corroborate the oral

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testimony of the complainant and the other injured witnesses, besides the wound certificate.

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These aspects are sufficient to hold that the incident, as alleged by the prosecution, took place on 25.09.2011 at around 12:30 p.m. in the land bearing Survey No. 214/1 of Menasigi Village, Holealur Hobli, Ron Taluk, Gadag District, as referred to supra.

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However, insofar as the conviction for the offence under Section 307 of the IPC is concerned, there is no material evidence on record sufficient to establish the said offence.

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It is steeled principles of law that in order to establish an offence under Section 307 of the IPC, the prosecution is required to prove all the ingredients of the offence of murder, the only distinction being that, in an offence under Section 307 of the IPC, the injured or victim survives.

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In the case on hand, there is neither evidence of preparation nor proof of intention, as deposed by the prosecution witnesses. The contents of the FIR merely disclose the existence of an unlawful assembly. Subsequently, while filing the charge sheet, the police invoked Section 34 of the IPC, giving up the offences under Section 149 of the IPC and other allied offences.

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In other words, there is no material evidence on record, either in the oral testimony of the complainant or the injured witnesses, to establish any pre-concert among the accused persons in relation to the incident.

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Further, the learned Trial Judge, upon appreciating the material evidence on record, has acquitted accused No.1, notwithstanding the fact that the complainant and the prosecution witnesses had specifically attributed a role to the said accused.

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Moreover, the State has not chosen to file any appeal against the acquittal of accused No.1, which lends credence to the defence and fortifies the defence contention that the incident occurred at the spur of the moment and was not the result of any premeditated act.

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Further, the appellant in Criminal Appeal No.100087/2015 is the third accused before the trial court and is employed as a KSRTC driver.

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It is pertinent to note that the Investigation Agency collected certain documents from the higher officials concerning accused No.3; however, these documents were intentionally not marked by the prosecution. Nonetheless, in the evidence of the

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Investigating Officer, he accepted the certificate that had been collected by him. Although the same was not marked as an exhibit on the side of accused, the fact remains that the Investigating Officer, having collected the document, established that on the date of the incident, the appellant in Criminal Appeal No.100087/2015, namely Adiveppa, was on duty. Therefore, he could not have been present at the time and place of the incident. In this regard, the prosecution’s case stands weakened.

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Taking note of these aspects of the matter, it is now the task of this Court to determine whether the offence under Section 307 of the IPC is required to be sustained re-appreciating the material evidence.

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Admittedly, the wound certificates issued by the doctor, who was examined as PW-9, Dr. G. V. Maraddi, disclose that all the injured persons had sustained simple injuries, as evidenced from the wound certificates marked at Exs.P5 to P10, referred to supra. Certain suggestions were put to PW-9 during cross-examination, which were specifically denied by him.

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The learned Trial Judge, however, has observed in paragraph 27 of the impugned judgment that, although the injuries are simple in nature, the parts of the body chosen for

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assault were the head and vital parts, and therefore held that the offence under Section 307 of the IPC is made out.

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As referred to supra, the intention of the persons assaulting another must be gathered from the totality of the circumstances. If the accused party had the intention to take away the life of the complainant party, nothing prevented them from inflicting further blows to cause death, especially when ample opportunity was available. This is particularly so when the complainant party was unarmed, whereas the accused party was allegedly in possession of deadly weapons.

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Therefore, in the course of the altercation, the use of a sickle or a stick cannot be accorded undue significance, as these implements are ordinarily used for agricultural operations on a day-to-day basis.

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Hence, on re-appreciation of the material evidence this Court is of the considered opinion that the appellant in Criminal Appeal No. 100087/2015, namely Adiveppa, is entitled to a clear acquittal, and the other accused persons are entitled to the benefit of doubt insofar as the offence under Section 307 of the IPC is concerned. As such offence under Section 307 is to be scaled down to offence under Section 324 of IPC and custody

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period already undergone by appellants except Adiveppa, is to be treated an imprisonment period by enhancing fine amount and awarding suitable compensation to injured.

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Since the property bearing Survey No.214/1 of Menasigi village, Holealur Hobli, Ron Taluk, Gadag District, is a joint family property, entry into the said property even for the purpose of preventing agricultural operations would not, perse , amount to criminal trespass. Therefore, the accused persons are entitled to acquittal for the offence punishable under Section 447 of the IPC.

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In view of the foregoing discussion, Point Nos. 1 to 3 are answered partly in the affirmative.

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Regarding Point No.4: In view of the findings recorded by this Court on Point Nos. 1 to 3 above, the following order is passed:

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ORDER

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i. The appeal is Criminal Appeal No.100087/2015 is allowed.

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ii. The impugned judgment of conviction dated 20.03.2015 passed against the appellants in S.C. No.59/2012 by Additional District and Sessions Judge, Gadag, is hereby

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set aside. Appellant No.1, who is Accused No. 3 in S.C. No.59/2012, is acquitted of all the offences alleged against him.

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iii. The appeal in Criminal Appeal No.100086/2015 is allowedin-part.

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iv. While maintaining the conviction of the accused persons for the offences punishable under Sections 323, 324, 354, 504, 506, and 507 read with Section 149 of the IPC, they are acquitted of the offence punishable under Section 307 of the IPC.

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v. Accordingly, all the accused persons are acquitted of the offences punishable under Sections 307 and 447 of the IPC.

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vi. The custody period already undergone by the accused shall

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be treated as imprisonment for the remaining proved offences. The accused are directed to pay fine amount of ₹15,000/- each for the proved offences.

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vii. Out of the fine amount recovered, sum of ₹5,000/- each is to be paid as compensation to the injured persons namely PW1-Bhimavva, PW4-Hanumanta, PW5-Basappa, PW7Somappa, PW6-Hemavva and PW8-Neelavva.

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