Sri. a C Devaraju @ Devarajegowda Vs State of Karnataka

SRI. A.C. DEVARAJU @ DEVARAJEGOWDA, S/O LATE A.S. CHANDRE GOWDA, AGED ABOUT 50 YEARS, RESIDING AT ALADAHALLY VILLAGE, MALLIPATNA HOBLI, ARAKALGUD TALUK, HASSAN DISTRICT-571112.

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…PETITIONER

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(BY SRI. H.N.SHASHIDHARA, SENIOR COUNSEL FOR

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SRI. H.S.SUHAS, ADVOCATE)

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AND:

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STATE OF KARNATAKA

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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BY ARAKALAGUD POLICE, ARAKALAGUD, HASSAN DISTRICT-571112, REP. BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING COMPLEX, HIGH COURT OF KARNATAKA, BENGALURU-560001.

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…RESPONDENT

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(BY SRI. M. DIVAKAR MADDUR, HCGP)

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THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 28.11.2018 ON THE FILE OF V ADDTIONAL DISTRICT AND SESSIONS JUDGE, HASSAN, IN CRL.A.NO.185/2018 AND ALSO C.C.NO.704/2014 DATED 07.08.2018 ON THE FILE OF THE CIVIL JUDGE AND JMFC, ARAKALAGUDU BY ALLOWING THIS CRL.RP.

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NC: 2026:KHC:25472 CRL.RP No. 1481 of 2018

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HC-KAR

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THIS PETITION, COMING ON FOR FINAL HEARING THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL ORDER

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Heard the learned counsel for the revision petitioner and the learned High Court Government Pleader appearing for the respondent State.

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2. This revision petition is filed against the order of conviction and sentence for the offence punishable under Section 504 of IPC and imprisonment for a period of 3 years with fine of Rs.1,000/- and default sentence of 30 days. In respect of Section 332 of IPC, imprisonment for a period of 1 year with fine of Rs.5,000/- and in default of payment of fine amount, 2 months additional sentence. In respect of Section 353 of IPC, imprisonment for a period of 3 months with fine of Rs.3,000/- and default sentence for 1 month. In respect of offence punishable under Section 506 of IPC, imprisonment for a period of 6 months with fine of Rs.1,000/- and default sentence of 2 months. Being aggrieved by the said judgment of conviction and sentence, an appeal is filed in Criminal Appeal No.185/2018 and the Appellate Court having re-appreciated the

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material available on record, confirmed the judgment of the Trial Court and dismissed the appeal. The same is challenged before this Court by filing the revision petition.

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3. The learned counsel appearing for the revision petitioner would vehemently contend that the Trial Court failed to take note of the factual aspect of the case that the revision petitioner went to the office of BESCOM and questioned the cutting of the branches of the tree of his land without giving any notice and there was no any intention to commit the offence and when there was no any intention, the invoking of Sections 332 and 353 of IPC does not arise. The learned counsel also would submit that P.W.2 has also admitted in the course of cross-examination that the panchanama was signed in the hospital and it is also admitted that along with him, P.W.4 had also signed and hence, panchanama is not proved and mahazar was not conducted as required under the law. The learned counsel would contend that the police have created the document of Ex.P.2. Similarly, P.W.7 who is a witness to the mahazar Ex.P.2, has not identified the signature, but expressed ignorance about signing of the mahazar and the timing and the date of incident is not proved and both the

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Courts have wrongly appreciated the evidence as there is no proof to establish any oblique motive on the part of the revision petitioner. Without informing the revision petitioner or his family members with regard to removing of tree branch damaging the coffee plantation resulted in spontaneous reaction on the part of the revision petitioner.

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4. The learned counsel relied upon the judgment of the Hon'ble Apex Court in the case of D.CHATTAIAH AND ANOTHER v. STATE OF ANDHRA PRADESH reported in (1979) 1 SCC 128 , wherein it is held that the charge as laid under Section 332 of IPC and the conviction of the appellant on that count, cannot be sustained. The appellants could, at the most, be held guilty under Section 323 of IPC, the injuries caused being simple.

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5. The learned counsel would contend that in the present case, the injuries are simple in nature and there is only a tenderness and in the heat of the moment, an incident was taken place and in order to invoke Section 332 of IPC, there must be a intent to prevent or deter a public servant from discharging his duty as such public servant is an essential

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HC-KAR

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ingredient and this incident was not in connection with discharging the public duty and when the complainant went to the plantation and cut and removed the branches of the tree, the same was questioned in the office. The learned counsel also contend that this Court can convert the offence to Section 323 of IPC seeing that P.W.1 has sustained simple injuries and question of invoking Sections 332 and 353 does not arise.

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6. Per contra, the learned High Court Government Pleader appearing for the respondent State would submit that P.W.1 is an injured witness and P.W.2 is an eye-witness, who deposed before the Court with regard to the incident is concerned. The learned counsel would submit that the judgment of the Apex Court (supra) relied upon by the learned counsel for the revision petitioner will not come to the aid of the revision petitioner. I n the present case, the public servant was questioned in the complainant's office regarding discharge of his official duties. The assault, which resulted in injuries, was committed with an oblique motive and hence, the question of modifying the judgment of conviction and sentence does not arise.

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HC-KAR

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7. Having heard the learned counsel for the revision petitioner and also the learned High Court Government Pleader appearing for the respondent State, the point that would arise for the consideration of this Court is:

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“Whether this Court can come to a conclusion that there was no any intention to commit an act of assault and whether the same comes within the purview of Section 353 of IPC, assault or criminal force to deter public servant from discharge of his duty and also in coming in the way of discharge of duty under Section 332 of IPC and whether it requires modification?”

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8. Having heard the respective learned counsel and also on perusal of the material on record, it is clear that the incident was taken place on 24.06.2014 at about 09.15 a.m. when the complainant, who was working in the electricity department was assigning duty to his subordinates and at that time, the accused had visited the office of the complainant and picked up a quarrel with him by questioning him that why he had cut down the branches of the trees in his land and he had abused him in a filthy language and he had also assaulted him

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on his shoulder, chest and other parts of the body by hand thereby preventing him from discharging his official duty and accordingly, a complaint came to the registered. Having considered the factual aspects of the case, it is very clear that a quarrel was taken place in the office of the complainant and only question was made with regard to discharge of public duty having cut down the branches of the trees in the land of the accused and the same was taken place previously and the same is not in connection with discharge of public duty or prevented in discharge of public duty. The act was already done and the same was questioned on 24.06.2014 in the office of the complainant. No doubt, the complainant is a public servant, who had sustained injuries and to that effect, the wound certificate Ex.P.8 is also produced before the Trial Court and there were injuries of tenderness simple in nature. The incident was taken place in the office of the complainant in respect of the act already done by the government officials. But nothing is placed on record for having given any notice before cutting and removing the branches of the trees and being enraged by the damages caused to the coffee plantation of the accused, the incident was taken place. The Hon'ble Apex Court

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in its judgment in the case of D.Chattaiah referred (supra) discussed the factual aspects of the case in paragraph No.9 and also with regard to the charges on which the accused were tried in paragraph Nos.3, 4 and 5 and made an observation in paragraph No.5 that the charge as framed, was under the second part of Section 332 of IPC, of which “the intent to prevent or deter public servant from discharging his duties as such public servant” is an essential ingredient.

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9. In the case on hand, already the act was done and the same is not proved and the same was done in furtherance of discharge of public duty. But on that day, the incident was not taken place in preventing them from discharging the public duty and factual aspect clearly discloses that act was already done and cut down the branches of the tree, which has resulted in damage to the coffee plantation and the same was questioned in the office of the complainant. Hence, as observed by the Apex Court in paragraph No.11 in the case of D.Chattaiah (supra), the charge as laid under Section 332 of IPC and the conviction of the appellant on that count, cannot be sustained. In the case on hand also, considering the factual aspects, at the most, the accused can be held guilty under

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Section 323 of IPC. Similar observation is made in the judgment that injuries caused is simple and when such being the case, when the act was already done and the same was questioned on the next day in the office, it amounts to invoking of Section 323 of IPC and not Sections 332 and 353 of IPC in preventing public duty or deterring the public duty. No doubt, Section 353 of IPC is assault or using of criminal force and if it is in discharge of public duty. But here no doubt, the incident was taken place in the office and scuffle was taken place in the office subsequent to the removal of branches in connection with discharge of public duty, but not at the time of the incident. When such being the case, the judgment of the Apex Court in the case of D.Chattaiah (supra), is aptly applicable to the case on hand to invoke Section 323 of IPC instead of Sections 332 and 353 of IPC.

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10. Having considered the revision petitioner came in the way of discharge of public duty and made galata subsequently after the discharge of their duties, it is appropriate to modify the sentence imposing the fine of Rs.50,000/- on the petitioner for the assault made against the government official in the office instead of sentencing him to

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undergo simple imprisonment for a period of 1 year and the same is also harsh and not commensurate with the ingredients of the offence under Section 332 and 353 of IPC. This Court modified the sentence for Section 323 of IPC instead of Sections 332 and 353 of IPC and hence, it requires interference of this Court and the judgment of the Trial Court is not sustainable in the eye of law with regard to the legality and its correctness for the offences punishable Sections 332 and 353 of IPC and no weapon was used at the time of the scuffle and it is only exchange of words and also use of criminal force by hand and not by any weapon during the scuffle. The incident was taken place without any intention of assault and the same was taken place in the heat of conversation between the complainant and the accused. The incident was taken place in the year 2014 and already more than a decade has been elapsed and the petitioner also underwent an agony for more than a decade and hence, it is appropriate to modify the conviction and sentence and hence, I answer the point partly in the affirmative.

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11. In view of the discussions made above, I pass the

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following:

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NC: 2026:KHC:25472 CRL.RP No. 1481 of 2018

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HC-KAR

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ORDER

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(i) The criminal revision petition is allowed.

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(ii) The judgment of conviction and sentence for the offences punishable under Sections 332 and 353 of IPC and other offences are set aside and the same is modified for the offence punishable under Section 323 of IPC.

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(iii) The revision petitioner is convicted for the offence under Section 323 of IPC and sentenced to pay the fine of Rs.50,000/- within two weeks from today before the Trial Court.

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(iv) If any fine amount is deposited before the Trial Court, the Registry is directed to pay the amount of Rs.40,000/- to P.W.1, who is an injured, on proper identification and rest of the amount of Rs.10,000/- shall vest with the State.

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(v) If the fine amount deposited is less than the fine imposed by this Court, to pay the balance amount within two weeks.

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Sd/(H.P.SANDESH) JUDGE

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MD

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List No.: 1 Sl No.: 39

Sri. a C Devaraju @ Devarajegowda v. State of Karnataka

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Sri. a C Devaraju @ Devarajegowda v. State of Karnataka

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