Karnataka High Court
Sri R Basavaraj S/O Ramu vs The State Of Karnataka on 20 August, 2013
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 20TH DAY OF AUGUST, 2013
:BEFORE:
THE HON'BLE MR.JUSTICE B.V.PINTO
CRIMINAL APPEAL NO.819/2006
BETWEEN:
1. R.BASAVARAJ,
S/O.RAMU,
AGED ABOUT 23 YEARS,
RESIDING AT NO.565,
7TH MAIN ROAD, 4TH CROSS,
VIJAYANAGAR, BANGALORE.
2. MURULIRAO @ MURALI,
S/O.VITTAL RAO,
AGED ABOUT 28 YEARS.
RESIDING AT. NO.1060,
7TH MAIN ROAD,
VIJAYANAGAR, BANGALORE. ....APPELLANTS
(BY SRI. DINESH KUMAR K. RAO, ADV.,FOR SRI. R.B.
DESHPANDE, ADV.,FOR A1 AND SRI.G.DEVARAJ, ADV.,
FOR A2)
AND:
THE STATE OF KARNATAKA ... RESPONDENT
(BY SRI.SATISH.R.GIRJI, HCGP)
THIS CRIMINAL APPEAL IS FILED U/S.374(2)
CR.P.C. AGAINST THE JUDGMENT DT. 29.3.06 PASSED
2
BY THE XXXIII ADDL. C.C. & S.J., & SPL. JUDGE
(NDPS) , B'LORE, IN S.C.NO.301/02 - CONVICTING THE
APPELLANT/ACCUSED NO.1 FOR THE OFFENCES
P/U/SS.448 AND 307 OF IPC AND CONVICTING THE
APPELLANT/ACCUSED NO.2 FOR THE OFFENCE
P/U/SS.448, 307 R/W SEC.114 OF IPC AND
SENTENCING THE APPELLANT/ACCUSED NO.1 TO
UNDERGO S.I. FOR 3 YEARS AND TO PAY A FINE OF
RS.10,000/- AND I.D, OF PAYMENT OF FINE SHALL
UNDERGO IMPRISONMENT FOR 3 MONTHS. THE
ACCUSED NO.2 IS SENTENCED TO UNDERGO S.I. FOR
1 YEAR AND TO PAY A FINE OF RS.5000/- AND I.D, TO
UNDERGO IMPRISONMENT FOR 2 MONTHS. THE
APPELLANTS/ACCUSED PRAYS THAT THE ABOVE
ORDER MAY BE SET ASIDE.
THIS CRIMINAL APPEAL COMING ON FOR
DICTATING JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal is filed challenging the Judgment dated 29.03.2006 passed by the 33rd Additional City Civil and Sessions Judge, Bangalore in SC No.301/2002 convicting the appellant No.1 for the offences under Section 448 and 307 of IPC and appellant No.2 for the offences under Section 448, 307 r/w Section 114 of IPC and sentencing appellant No.1 to undergo simple imprisonment for a period of three years and to pay fine of `10,000/- in default of payment of fine to undergo 3 imprisonment for three months and sentencing appellant No.2 to undergo simple imprisonment for one year and to pay fine of `5,000/- in default to undergo imprisonment for two months.
2. It is the case of the prosecution that, on 03.11.2000 at about 9.15 a.m, in the house bearing No.459/H in the first floor at 9 'D' main road at Vijayanagar, Bangalore city in connection with marriage of one Neetu not being performed with the accused No.1, both accused criminally trespassed into the house and thereafter accused No.2 waited near the door and accused No.1 assaulted the complainant by means of knife on her stomach and caused severe bleeding injuries and if by that act, the complainant were to die, the accused would have been guilty of murder, thereby, accused No.1 is alleged to have committed the offences under Section 448 and 307 of IPC.
3. It is the further case of the prosecution that, at the above said place date and time, accused No.2 was 4 present at the front door of the house and has abetted the commission of the offences by accused No.1, thereby, accused No.2 is alleged to have committed the offences under Section 448, 307 r/w Section 114 of IPC.
4. The prosecution in order to prove the case has examined in all 16 witnesses and got marked Exs.P1 to P29 and produced MOs.1 to 5. The defence of the accused was one of total denial. However, he has produced Exs.D1 to D3 being the photographs. The learned Sessions Judge after considering the evidence on record has convicted and sentenced appellant Nos.1 and 2 as aforestated. The convicted accused have filed this appeal.
5. Heard Sri.Dinesh Kumar, learned Counsel appearing for appellant No.1 and Sri.Devaraj, learned Counsel appearing for appellant No.2 and Sri. Satish.R.Girji, learned HCGP appearing for the State.
6. At the outset, Sri.Devaraj, learned Counsel for the appellants submits that, he is not seriously pressing 5 the order of conviction in view of the evidence of PW.11 and also the evidence of doctors-PWs.13 and 14. He has submitted that his endeavor is only to reduce the sentence in view of the special circumstances appearing in this case namely that both accused Nos.1 and 2 are young persons and of tender age at the time when they committed the said offences and that there was neither any criminal antecedents against them nor that they have indulged themselves in any other offences subsequent to the registration of the present case.
7. Sri.Satish.R.Girji, learned HCGP on the other hand submits that, the order of conviction as well the order of sentence is in accordance with law and based on the evidence on record. Therefore, he submits that the order of conviction and sentence may be confirmed by dismissing this appeal.
8. Inspite of the submission made by the learned Counsel for the appellants, I have carefully gone through the entire evidence of the prosecution witnesses. PW.11- 6 Gayathri is the injured person. She has categorically stated that, on 03.11.2000 at about 9.00 a.m. when she was in the house, accused No.1 came inside the house. At that time, she was in the kitchen. Accused No.1 immediately started assaulting her and she tried to escape. Accused No.1 assaulted on her stomach four to five times and has caused injuries on three to four places on her body. Thereafter, accused ran out of the house and put bolt from outside and went away. At that time, when accused No.1 was assaulting her, accused No.2 was standing at the door of the house and was instigating accused No.1 asking accused No.1 to finish and come fast. PW.11 has also stated that, accused had informed her about a month prior to the said incident that he would marry her daughter Kumari.Neetu and it was informed to accused No.1 that, since her daughter was too small, it was not possible to marry her daughter with accused No.1 and her daughter was studying in I PUC during that period. Thereafter, accused No.1 had approached her through some other persons also with a 7 proposal to marry her daughter. PW.11 has further stated in her evidence that, she has given complaint as per Ex.P15 and took treatment in the Tejas Nursing Home, where she was admitted and the police had come to the hospital and recorded her statement. The clothes worn by her was blood stained and they are marked as MOs.1 and 2. She has also identified the accused in the Court.
9. PW.1-Shivanandaiah, PW.2-Annapoornamma, PW.3-Smt.Latha and PW.4-Gayathri who are neighbours have not supported the case of the prosecution insofar as the incident as such is concerned. However, they have stated that they have found PW.11 injured on the date of the incident.
10. PW.13-Dr.Kiran has stated that, on 03.11.2000, when he was working as a Medical Officer, he has examined, PW.11 who had sustained the following injuries:
i) Wedge shaped stab injury 3 cms x 1 cm on left side abdomen 4 cms away from the 8 umbilicus at 1.0 clock position. The stab injury has cut the mesentery and intestine;
ii) Stab wound wedge shaped stabbed wound 2 cms x 1 cm over left side abdomen 4 cms away from injury No.1. It has cut the intestines;
iii) wedge shaped stabbed wound 3 cms x 1 cm over right nipple;
iv) Wedge shaped stabbed wound over left mid-axially line 18 cms from axiall;
v) Stabbed wound 2 cms x 1 cm over left forearm in the inner aspect and existed at back of the forearm (wedge shaped);
vi) Wedge shaped stabbed wound 2 cms x 1 cm over left forearm on the back in its lower part and existed in the middle of the back;
He has opined that the above injuries are grievous in nature and can be caused when assaulted by knife. He has issued wound certificate as per Ex.P21. He has also identified the weapon-MO.3 which was produced before him by the police for seeking his opinion. 9
11. PW.14-Dr.Smt.Manjula Devi has also deposed before the Court stating that PW.11 was brought to Tejas Nursing Home on 3.11.2000 at about 10.00 a.m. and that the Statement of PW.11 was recorded in her presence and that the said statement is identified by her as Ex.P15 wherein she has signed the said statement.
12. On a careful consideration of the evidence of the victim, doctors as well as the other witnesses, it is clear that the prosecution has proved that on the date of the incident, accused No.1 has caused injuries as mentioned above on PW.11. The finding of fact by the learned Sessions Judge that accused No.1 has infact assaulted and accused No.2 has abetted such assault has been proved by cogent and clear evidence adduced through the prosecution witnesses.
13. On a careful re-appreciation of the entire evidence, I do not find any error or illegality insofar as the finding of fact by the trial Court is concerned. However, so far as the nature of offence alleged to have 10 been committed is concerned, I find that the evidence of doctor does not indicate that life of PW.11 was in danger or that she would have succumbed to the injuries or that the injuries had endangered her life. Both doctors have not stated that in the absence of any treatment, PW.1 would have died. It is also not stated that the injuries suffered by PW.1 would have in the normal course resulted in the death. Under the circumstances, it is not made clear from the medical evidence as to how the injuries attract the definition of 'grievous hurt'. There is no fracture. It is also not brought out as to whether the act of accused comes within the definition of 'eightly' in Section 320 of IPC. There is no record to show that PW.11 was hospitalized for more than 20 days or that she was unable to follow her normal pursuits for more than 20 days. In that view of the matter, the offence alleged against the accused cannot be said to be the one under Section 307 of IPC nor under Section 326 IPC. At best the offence under Section 324 of IPC is made out. With what has been discussed above, I hold that the 11 prosecution has succeeded in bringing home the guilt for the offences under Section 448 r/w Section 324 of IPC insofar as accused No.1 is concerned and the offence under Section 324 r/w Section 114 of IPC insofar as accused No.2 is concerned.
14. So far as the sentence is concerned, it is submitted that, accused No.1 was a young person of 22 years as on the date of the incident and hence leniency may be shown and that the incident has taken place 13 years back. It is seen that accused are in the prime of their life and sending them to custody would not serve the betterment of the society. On the other hand, PW.11 requires to be compensated for the six injuries which has been caused by accused No.1. Therefore, I am of the considered opinion that, accused No.1 is liable to compensate PW.11 for the said injuries.
15. Having regard to the number and nature of injuries sustained by PW.11, a sum of `50,000/- would be an adequate compensation payable to the victim- 12 PW.11 and the said amount shall be paid by accused No.1 himself, since accused No.2 has not performed any specific overt act, but only instigated accused No.1 in the commission of offences. In the result, the following order is passed:
ORDER
i) The appeal is allowed in part.
ii) The order of conviction passed against appellant No.1 for the offences under Section 448 r/w Section 307 of IPC is altered to the one under Section 448 r/w Section 324 of IPC.
iii) The order of conviction passed against appellant No.2 for the offences under Section 307 r/w Section 114 of IPC is altered to the one under Section 324 r/w Section 114 of IPC.
iv) Accused No.1 is directed to suffer
imprisonment for the period already
undergone by him as an under trial
prisoner and to pay fine of `.50,000/-, in default of payment of fine, to suffer simple imprisonment for a period of six months.13
v) Accused No.2 is directed to suffer
imprisonment for the period already
undergone by him and to pay fine of
`.5,000/-. in default to suffer simple imprisonment for a period of six months.
vi) Out of the fine amount recovered, sum of `.50,000/- shall be paid to PW.11 as compensation under Section 357 Cr.P.C.
vii) Appellants are given six weeks time to deposit the balance amount of fine imposed on them, failing which the trial Court is directed to execute the default sentence in accordance with law.
Sd/-
JUDGE KSR