Gajendra @ Swamy Vs the State of Karnataka

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NC: 2026:KHC:3400 CRL.RP No. 533 of 2018

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21^ST DAY OF JANUARY, 2026 BEFORE

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THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY CRIMINAL REVISION PETITION NO. 533 OF 2018

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BETWEEN:

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GAJENDRA @ SWAMY S/O HULIYAPPA @ HUCHAPPA OCC: AGRICULTURIST R/O BANJENAHALLI VILLAGE KADUR TALUK, CHIKKAMAGALURU DISTRICT - 577 548.

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ASHOKA S/O HULIYAPPA @ HUCHAPPA OCC: AGRICULTURIST R/O BANJENAHALLI VILLAGE KADUR TALUK, CHIKKAMAGALURU DISTRICT - 577 548.

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Digitally signed by NANDINI M S Location: HIGH COURT OF KARNATAKA

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KUMARA S/O HULIYAPPA @ HUCHAPPA OCC: AGRICULTURIST R/O BANJENAHALLI VILLAGE KADUR TALUK, CHIKKAMAGALURU DISTRICT - 577 548.

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(BY SRI P.B. UMESH, ADV., FOR SRI R.B. DESHPANDE, ADV.)

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…PETITIONERS

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AND:

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THE STATE OF KARNATAKA BY KADUR POLICE STATION, CHIKKAMAGALURU DISTRICT - 577 548 (REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDINGS BENGALURU - 560 001)

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…RESPONDENT

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(BY SRI CHANNAPPA ERAPPA, HCGP)

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NC: 2026:KHC:3400 CRL.RP No. 533 of 2018

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HC-KAR

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THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED 30.06.2016 PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC, KADUR IN C.C.NO.501/2012, CONFIRMED BY THE JUDGMENT AND ORDER DATED 09.04.2018 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, CHIKKAMAGALURU IN CRL.A.NO.121/2016 (CONVICTED FOR THE OFFENCE P/U/S 504,323,326,354,506 R/W 34 OF IPC) AND ACQUIT THE PETITIONERS OF THE CHARGES LEVELED AGAINST THEM.

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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 S VISHWAJITH SHETTY

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ORAL ORDER

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Accused no.1 to 3 are before this Court in this revision petition filed under Section 397 r/w Section 401 of Cr.P,C, with a prayer to set aside the judgment and order of conviction and sentence passed in C.C.No.501 of 2012 by the Court of Prl. Civil Judge & JMFC, Kadur dated 30.06.2016 and the judgment and order dated 09.04.2018 passed by the Court of Prl. District & Sessions Judge, Chikkamagaluru in Criminal Appeal No.121 of 2016.

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Heard the learned counsel appearing for the parties.

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It is the case of the prosecution that on 06.01.2012 at about 12 noon within the jurisdiction of Kadur Police Station, Chikmagaluru when PW2 to PW4 were fencing their property

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HC-KAR

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using stone pillars, petitioners herein picked up quarrel with them and thereafter allegedly assaulted them and caused injuries. It is also alleged that accused no.2 pulled the saree of PW4 and tried to outrage her modesty. When CW3 pacified the accused, they allegedly left the place after threatening the victims with dire consequences to their life. It is under these circumstances, FIR was registered against the petitioners in Crime No.7 of 2012 by Kadur Police Station, based on the first information received from PW1. After completing investigation, charge sheet was filed against the petitioners for offences punishable under Sections 504, 323, 326, 354, 506 read with 34 of IPC and they were tried for the aforesaid offences in C.C. No.501 of 2012. Since the petitioners had claimed to be tried before the Trial Court, the prosecution in order to prove its case had examined 13 charge sheet witnesses as PW1 to PW13 and got marked 22 documents as Ex.P1 to Ex.P22. The weapons used by the petitioners to assault the victims were produced as MO1 and MO2 and the blood stained clothes of the victims were produced as MO3. On behalf of the defence, no oral or documentary evidence was placed on record. The Trial Court after recording the statement of the accused as provided under

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NC: 2026:KHC:3400 CRL.RP No. 533 of 2018

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Section 313 of Cr.P.C. and after hearing the arguments addressed on both sides the trial Court vide judgment and order of sentence dated 30.06.2016 had convicted and sentenced the petitioners for offences punishable under Sections 504, 323, 326, 354, 506 R/W Section 34 of IPC. The said judgment and order of conviction and sentence passed in C.C.No.501 of 2012 was confirmed by the Court of Principal District & Sessions Judge, Chikkamagaluru in Criminal Appeal No.121 of 2016 vide judgment and order dated 09.04.2018. It is under these circumstances the petitioners are before this Court.

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Learned counsel for the petitioners having reiterated the grounds urged in the petition submits that charge for offence punishable under Section 326 of IPC was framed only as against accused no.1 and 3. However, Courts below have convicted all the accused for the said offence. He submits that for the offence punishable under Section 354 of IPC, charge was framed only as against accused no.2, but the Courts below have convicted all the accused for the said offence. He also submits that prosecution has placed reliance

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on the evidence of PW1 and PW4 to prove its charge for offence punishable under Section 354 of IPC. However, necessary ingredients to invoke the said offence is not found in the deposition of PW1 and PW4. He submits that evidence of PW4 remains uncorroborated insofar as the offence punishable under Section 354 of IPC is concerned. He submits that incident in question had taken place in the year 2012 in the background of certain civil disputes between the parties, who are close relatives and neighbours. He therefore, prays that the order of sentence passed against the petitioners may be modified and leniency may be shown on them.

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Per contra, learned HCGP has argued in support of the impugned judgment and order of conviction and sentence and has prayed to dismiss the petition.

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The prosecution to prove its charges against the accused had examined in all 13 charge sheet witnesses. PW1, who is the relative of PW2 to PW4 is the first informant in the present case. This witness has stated that he was present at the spot of crime on the alleged date of incident and he also has spoken about the assault made by accused no.1 and 3 on

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NC: 2026:KHC:3400 CRL.RP No. 533 of 2018

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PW2 and PW3 using weapons. Though this witness has stated that the accused no.2 had pulled the saree of PW4, he has not stated that accused no.2 had pulled the saree of PW4 with an intent to outrage her modesty.

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Ex.P1 is the complaint lodged by PW1 and his signature on the complaint is marked as Ex.P1(a). During the course of further cross-examination of this witness, he has stated that he does not know to read and write and he is not aware as to what is stated in the complaint and he had signed the complaint as directed by the police. It is under these circumstances, this witness was treated as a hostile witness and cross examined by the Public Prosecutor.

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During the course of cross-examination of PW1 by the Public Prosecutor, he has stated that he does not know about the assault made by the accused on the victims and he also had not seen accused no.2 pulling the saree of PW4 and causing injuries to her by assaulting her with his hands and causing injuries. He has also stated that he is not aware of the incident in question or about the victims being shifted to the hospital for treatment.

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NC: 2026:KHC:3400 CRL.RP No. 533 of 2018

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PW2 is the son of PW3 and PW4. This witness is a injured witness, who had suffered fracture injuries as a result of assault made by accused no.3 with MO1 pickaxe. PW3 is the father of PW2 and husband of PW4. Even this witness has suffered fracture injury as a result of assault made on him by accused no.1 with MO2 - crowbar. Wound certificate of PW2 and PW3 are produced as Ex.P10 and Ex.P11. Photograph of the injured PWs.2 and 3 are also produced and marked as Ex.P5 and Ex.P7. Allegation of assaulting PW2 and PW3 is found only against accused nos.1 and 3.

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PW4 is the other injured victim in the present case,

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who is the mother of PW2 and wife of PW3. This witness has only suffered simple injuries as a result of assault made on her by accused no.2. Though, she has alleged that accused no.2 also had pulled her saree and tried to outrage her modesty, the evidence of PW4 to the said extent is not corroborated by any independent witness. PW1, who had initially stated in his examination-in-chief that accused no. 2 had pulled the saree of PW4 during the course of his cross-examination by the prosecution, after he was treated as hostile witness has stated

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that he had not seen accused no.2 pulling the saree of PW4 or assaulting her. Therefore, I am of the opinion that the prosecution had failed to make out prima-facie case as against accused no. 2 for offence punishable under Section 354 of IPC and only offence punishable under Section 323 of IPC is made out against him by the prosecution.

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Insofar as accused nos.1 and 3 are concerned, the assault and the injury suffered by PW2 and PW3 is proved by prosecution by producing photographs of the injured as Ex.P5 and Ex.P7, their wound certificates as Ex.P10 and Ex.P11, their X-ray reports as Ex.P17 and Ex.P19, their scanning report as Ex.P18. In addition to the same, the doctors, who had treated PW2 and PW3 have been examined by the prosecution as PW8 and PW10. The said witnesses have clearly spoken about the history given about the assault and also the injury sustained by PW2 and PW3.

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It is also relevant to note here that in respect of the alleged incident in question there was a counter complaint given on behalf of the petitioners herein in which a 'B' report has been filed by the police, after investigation. The said 'B'

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NC: 2026:KHC:3400 CRL.RP No. 533 of 2018

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report has attained finality. By filing a counter complaint in respect of alleged incident in question, virtually the petitioners have admitted the incident in question. Insofar as the injuries suffered by PW2 and PW3 are concerned, the prosecution has clearly proved the same as stated herein above.

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A perusal of the charges that were framed against the accused in the present case on 04.09.2012 would go to show that:

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(i) Charge for the offence punishable under Section 504 of IPC was framed against all three accused.

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(ii) The charge for the offence punishable under Section 326 of IPC was framed only against accused Nos.1 and 3.

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(iii) The charge for the offence punishable under Section 323 and 354 of IPC was framed only against accused No.2 and the charge for the offence punishable under Section 506 of IPC was framed against all the three accused.

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However, the Trial Court has convicted accused Nos.1 to 3 for all the charge sheeted offences which in my

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NC: 2026:KHC:3400 CRL.RP No. 533 of 2018

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considered opinion was erroneous, having regard to the charges framed against the accused and also the material evidence available on record.

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Since no charge was framed against accused No.2 for the offence punishable under Section 326 of IPC, and the evidence of injured victims would clearly go to show that it was only accused Nos.1 and 3 who had assaulted PWs.2 and 3 with weapons and had caused grievous injuries to them, I am of the opinion that the Trial Court was not justified in convicting the petitioner No.2/accused No.2 for the offence punishable under Section 326 of IPC.

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Similarly, the Trial Court was also not justified in convicting the accused No.1 and 3 for the offences punishable under Sections 323 and 354 of IPC, since no charges were framed against them for said offences and none of the witnesses have stated about said Appellate Court committing offence punishable under Section 323 and 354 of IPC.

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In so far as the judgment and order of conviction and sentence passed against accused Nos.1 and 3 for the

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NC: 2026:KHC:3400 CRL.RP No. 533 of 2018

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offences punishable under Sections 504 and 506 of IPC is concerned, it needs no interference.

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The oral and documentary evidence on record would go to show that there was certain civil dispute between the parties and incident in question had taken place in the said background. Considering the fact that the incident in question is of the year 2012 and thirteen years have been passed thereafter and also taking into consideration that accused are married men, having family, I am of the opinion that ends of justice would be served, in the event the sentence imposed on accused nos.1 and 3 for the offence punishable under Section 326 of IPC is modified

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19. Accordingly, the following:

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ORDER

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This criminal revision petition is partly allowed. The judgment and order of conviction and sentence passed against the petitioners / accused nos.1 to 3 for the offences punishable under Sections 504 and 506 read with Section 34 of IPC is confirmed.

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Accused Nos.1 and 3 are acquitted of the offence punishable under

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NC: 2026:KHC:3400 CRL.RP No. 533 of 2018

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Section 323 of IPC and the judgment and order of conviction and sentence passed against accused No.2 for the offence punishable under Section 323 of IPC is confirmed.

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Accused No.2 is acquitted of the offence punishable under Section 326 of IPC and the judgment and order of conviction passed against accused Nos.1 and 3 for the offence punishable under Section 326 of IPC is confirmed. However, the order of sentence imposed by the Courts below, for the offence punishable under Section 326 of IPC is modified and accused nos.1 and 3 are sentenced to undergo S.I. for a period of 06 months and pay fine of Rs.10,000/- each and in default to undergo S.I. for a period of one month.

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Accused Nos.1 to 3 are acquitted of the offence punishable under Section 354 of IPC.

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Sd/(S VISHWAJITH SHETTY) JUDGE

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NMS/HJ

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List No.: 1 Sl No.: 76

Gajendra @ Swamy v. the State of Karnataka

Case brief

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Gajendra @ Swamy v. the State of Karnataka

Case brief

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