Karnataka High Court
K Prasanna vs State Of Karnataka on 19 September, 2022
Crl.A.No.224/2016
C/w Crl.A.No.1131/2015
Crl.A.No.223/2016
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF SEPTEMBER 2022
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR. JUSTICE S.RACHAIAH
CRIMINAL APPEAL No.224/2016
C/w
CRIMINAL APPEAL No.1131/2015
CRIMINAL APPEAL No.223/2016
Crl. A.No.224/2016:
BETWEEN:
STATE BY MADDUR POLICE
MANDYA REP. BY SPP HIGH COURT
BANGALORE - 571 428 ...APPELLANT
(BY SRI VINAYAKA V S, HCGP)
AND:
1. K PRASANNA
S/O KRISHNEGOWDA
AGED ABOUT 33 YEARS
R/AT NEELAKANTANAHALLI VILLAGE
MADDUR TALUK - 571 428
2. KRISHNEGOWDA
S/O LATE KARIGOWDA
AGED ABOUT 62 YEARS
R/AT NEELAKANTANAHALLI VILLAGE
MADDUR TALUK - 571 428
3. H.S.SATHISHA
S/O L.SHIVALINGEGOWDA
AGED ABOUT 39 YEARS
Crl.A.No.224/2016
C/w Crl.A.No.1131/2015
Crl.A.No.223/2016
2
R/AT HAGALAHALLI VILLAGE
MADDUR TALUK - 571 428
4. N.R.MAHESHA
S/O RAMANNA
AGED ABOUT 48 YEARS
R/AT NEELAKANTANAHALLI VILLAGE
MADDUR TALUK - 571 428 ...RESPONDENTS
(BY SRI VIKYATH B FOR
SRI S.SHANKARAPPA, ADVOCATES FOR R1 & R2;
SRI H.B.CHANDRASHEKAR, ADVOCATE FOR R3 AND R4)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)
AND (3) OF CR.P.C PRAYING TO GRANT LEAVE AND SET ASIDE
THE JUDGMENT AND ORDER OF ACQUITTAL DATED 24.08.2015
PASSED BY THE PRINCIPAL SESSIONS JUDGE, MANDYA IN
S.C.NO.148/2012 AGAINST ACCUSED NOS.1 TO 4.
Crl.A.No.1131/2015:
BETWEEN:
K PRASANNA
S/O KRISHNE GOWDA
AGED ABOUT 34 YEARS
R/AT NEELAKANATANAHALLI VILAGE
MADDUR TALUK
MANDYA DISTRICT - 571428 ...APPELLANT
(BY SRI VIKYATH B FOR SRI S.SHANKARAPPA, ADVOCATES)
AND:
STATE OF KARNATAKA
BY MADDUR P S
MANDYA DISTRICT - 571428
REP. BY SPP HIGH COURT COMPLEX
BANGALORE - 560 001 ...RESPONDENT
(BY SRI VINAYAKA V S, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION DATED 24.08.2015 PASSED BY THE PRINCIPAL
Crl.A.No.224/2016
C/w Crl.A.No.1131/2015
Crl.A.No.223/2016
3
SESSIONS JUDGE, MANDYA IN S.C.NO.148/2012 - CONVICTING
THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTION 326 OF IPC. THE ACCUSED IS SENTENCED TO UNDERGO
RIGOROUS IMPRISONMENT FOR 1 YEAR AND PAY FINE OF
RS.10,000/-, IN DEFAULT TO PAY FINE, HE SHALL UNDERGO R.I.
FOR ANOTHER 3 MONTHS FOR THE OFFENCE PUNISHABLE UNDER
SECTION 326 OF IPC. THE SENTENCE IN DEFAULT OF PAYMENT OF
FINE AS ORDERED ABOVE, SHALL RUN AFTER COMPLETION OF
THE TERM OF SENTENCE OF ONE YEAR RIGOROUS
IMPRISONMENT.
Crl.A.No.223/2016:
BETWEEN:
STATE BY MADDUR POLICE
REP. BY SPP
HIGH COURT OF KARNATAKA
BENGALURU-571 428 ...APPELLANT
(BY SRI VINAYAK.V.S., HCGP)
AND:
K PRASANNA
S/O KRISHNEGOWDA
AGED ABOUT 33 YEARS,
R/AT NEELAKANTANAHALLI VILLAGE
MADDUR TALUK-571428 ...RESPONDENT
(BY SRI VIKYATH B FOR SRI S.SHANKARAPPA, ADVOCATES)
THIS CRIMINAL APPEAL IS UNDER SECTION 377 CR.P.C
PRAYING TO MODIFY THE JUDGMENT AND ORDER DATED
24.08.2015 PASSED BY THE PRINCIPAL SESSIONS JUDGE,
MANDYA IN S.C.NO.148/2012 IN SO FAR AS IT RELATES TO
IMPOSING INADEQUATE SENTENCE FOR THE OFFENCE
PUNISHABLE UNDER SECTION 326 OF IPC ETC.
THESE CRIMINAL APPEALS COMING ON FOR FURTHER
DICTATION THIS DAY, K.S.MUDAGAL J., DELIVERED THE
FOLLOWING:
Crl.A.No.224/2016
C/w Crl.A.No.1131/2015
Crl.A.No.223/2016
4
JUDGMENT
The State has filed Crl.A.No.224/2016 challenging acquittal of accused Nos.2 to 4 and Crl.A.No.223/2016 challenging adequacy of the sentence awarded to accused No.1 in S.C.No.148/2012 on the file of the Principal Sessions Judge, Mandya. Accused No.1 has filed Crl.A.No.1131/2015 challenging the order of conviction and sentence passed against him in the same case for the offence punishable under Section 326 of IPC.
2. For the purpose of convenience, the parties will be referred to henceforth according to their ranks before the trial Court.
3. Accused No.2 Krishnegowda is the father of accused No.1 K.Prasanna and father-in-law of accused No.3 H.S.Sathisha, accused No.4 is nephew of accused No.2. PW.1 victim is also the nephew of accused No.2.
4. The Principal Sessions Judge, Mandya tried accused Nos.1 to 4 in S.C.No.148/2012 for the charges for the offences punishable under Section 324 read with Section Crl.A.No.224/2016 C/w Crl.A.No.1131/2015 Crl.A.No.223/2016 5 34 of IPC, Section 307 read with Sections 114 and 34 of IPC and Section 326 read with Sections 114 and 34 of IPC on the basis of the charge sheet filed by Maddur Police in Crime No.27/2012 of their police station.
5. The case of the prosecution in brief is as follows:
(i) On 15.01.2012 at about 12.45 p.m., in front of Basaveshwara Temple in Neelakantanahalli village, Maddur Taluk, due to some previous ill-will accused Nos.1 to 3 assaulted PW.1 with club. By that time, accused No.4 joined them with long/chopper and handed over the same to accused No.1, instigated him to kill PW.1.
(ii) Accused No.1 assaulted PW.1 with that long/chopper on his back and attempted to assault on his head. When PW.1 warded his hand to avert the blow, the chopper hit his right hand causing grievous injuries. By that time, PWs.2 and 3 intervened and rescued him. Accused went away.
(iii) Then PW.1 was shifted to Maddur Government Hospital where PW.5 on giving first aid referred him to Maddur District Hospital.Crl.A.No.224/2016
C/w Crl.A.No.1131/2015 Crl.A.No.223/2016 6
(iv) PW.14 Assistant Sub-Inspector of Police of Maddur Police Station on receipt of MLC intimation visited Mandya District Hospital and recorded the statement of PW.1 as per Ex.P1 and submitted the same to PW.9 the Assistant Sub-Inspector of Police, Maddur Police Station.
(v) PW.9 registered first information report Ex.P10 on the basis of the complaint Ex.P1 and conducted part of the investigation. He handed over further investigation to PW.13.
(vi) PW.13 the Police Sub-Inspector of Maddur Police Station conducted further investigation and filed charge sheet against the accused for the aforesaid offences.
6. On committal of the case, the trial Court tried them for charges for the offences punishable under Section 324 read with Section 34 of IPC, Section 307 read with Sections 114 and 34 of IPC and Section 326 read with Sections 114 and 34 of IPC. In support of the case of the prosecution, PWs.1 to 14 were examined and Exs.P1 to P13 and MOs.1 to 6 were marked.
7. The trial Court on examining the accused under Section 313 of Cr.P.C. and on hearing the parties by the Crl.A.No.224/2016 C/w Crl.A.No.1131/2015 Crl.A.No.223/2016 7 impugned judgment and order acquitted accused Nos.2 to 4 of all the charges and convicted accused No.1 for the charge for the offence punishable under Section 326 of IPC. Further the trial Court sentenced accused No.1 to rigorous imprisonment of one year and fine of Rs.10,000/-. In default to pay fine to rigorous imprisonment for another three months.
8. The State challenges the order of acquittal of accused Nos.2 to 4 of all the charges and acquittal of accused No.1 of the charge for the offence punishable under Section 307 of IPC on the ground that the evidence of injured PW.1, eyewitnesses PWs.2 and 3, medical evidence, weapon used in the commission of the offence clearly show that the accused assaulted PW.1 with intention to commit his murder. It is further contended that the presence of accused Nos.2 to 4 was established by the evidence of PWs.1 to 3 beyond reasonable doubt. Therefore the trial Court was not justified in acquitting them on the basis of minor contradictions or inconsistencies. Reiterating the grounds of the appeal, learned HCGP seeks conviction of accused Nos.1 to 4 for the Crl.A.No.224/2016 C/w Crl.A.No.1131/2015 Crl.A.No.223/2016 8 offence punishable under Section 307 read with Section 34 of IPC.
9. Sri Vikyath.B. learned Counsel for accused Nos.1 and 2 and Sri H.B.Chandrashekar, learned Counsel for accused Nos.3 and 4 justify the impugned judgment and order with regard to accused Nos.2 to 4 and assail the order of conviction and sentence passed against accused No.1. They submit that PWs.2 and 3 were the interested witnesses. The evidence of PWs.4 to 6, 11 and 12 was not sufficient to hold that there was grievous hurt to PW.1 and no X-rays or X-ray report were produced. They further submit that the recovery of the alleged weapon was doubtful and FSL report was not conclusive to show that the blood allegedly found on weapons was that of PW.1. Thus they seek dismissal of the State appeals and acquittal of accused No.1 of all the charges.
10. In support of their submissions, they rely on the following judgments:
1
(i) State v. Sheenappa Gowda 2 (ii) Jasdeep Singh v. State of Punjab 1 LAWS (KAR)- 2010- 3-38 2 AIR 2022 SC 805 Crl.A.No.224/2016 C/w Crl.A.No.1131/2015 Crl.A.No.223/2016 9 (iii) Balvir Singh v. State of M.P.3
11. On hearing both side and on perusal of the materials on record, the points that arise for determination of this Court are:
(i) Whether the trial Court was justified in acquitting accused Nos.2 to 4 of all the charges?
(ii) Whether the trial Court was justified in convicting accused No.1 for the offence punishable under Section 326 of IPC?
(iii) Whether the impugned order of sentence against accused No.1 is justifiable?
Analysis Reg. Point Nos.1 to 3:
12. The case of the prosecution is based on the evidence of PW.1 the injured eyewitness, PWs.2 and 3 eyewitnesses, PWs.4 to 6, 11 and 12 the doctors who treated PW.1 in Maddur Government Hospital, District Hospital, Mandya and BGS Apollo Hospital, Mysore, the evidence of official witnesses/police witnesses and FSL expert. 3 (2019) 15 SCC 599 Crl.A.No.224/2016 C/w Crl.A.No.1131/2015 Crl.A.No.223/2016 10
13. The first question is whether the victim PW.1 had suffered such injuries. PW.1 deposed that on the date of the incident, accused Nos.1 to 3 accosted him with club and due to old enmity assaulted him on his legs, arms, back. He further deposed that by that time accused No.4 came to the scene of offence on his motorbike with chopper and handed over MO.1 long/chopper to accused No.1 instigating him to kill PW.1. He further says that accused No.1 assaulted him with MO.1 on his back and he escaped that blow. Accused No.1 again attempted to assault on his head, when he warded his hand to avert the blow that hit his right palm cutting the nerves. He also deposed that at that time, PWs.2 and 3 came there, rescued him and took him to Maddur Hospital. He further deposed that from Maddur Hospital he was referred to Mandya District Hospital. When he was being treated in Mandya District Hospital, the Police Inspector recorded his statement as per Ex.P1. He says that from Mandya District Hospital, he was shifted to Vikram Hospital, Mysore and from there to BGS Apollo Hospital, Mysore. He took treatment in BGS Apollo Hospital for four days. Crl.A.No.224/2016 C/w Crl.A.No.1131/2015 Crl.A.No.223/2016 11
14. In the cross-examination of PW.1, he suffering injuries was not disputed. But accused suggested that he was making galata in village under intoxication and he fell and suffered injuries. The other defence theory of such injuries was that PW.1 got his hand struck in a gate and suffered those injuries. It was suggested that taking advantage of such injuries due to ill-will between him and the accused party they are falsely implicated in the case. Of-course PW.1 disputed all such suggestions.
15. Similarly, PW.5 Medical Officer who first examined PW.1 in Maddur Hospital, PW.11 the doctor who treated PW.1 in Mandya District Hospital, PW.12 the doctor who treated PW.1 in BGS Apollo Hospital state that PW.1 was brought to them with history of assault, about his injuries, about they treating him and about his reference from Maddur Hospital to Mandya District Hospital and from Mandya District Hospital to BGS Apollo Hospital, Mysore. The following are the injuries noted by the Medical Officer PW.11:
(i) Lacerated wound over left ring finger posterior established 1 x 2 cm Crl.A.No.224/2016 C/w Crl.A.No.1131/2015 Crl.A.No.223/2016 12
(ii) Linear abrasive wound over right shoulder 0.5 x 6 cm
(iii) Deep lacerated wound over right palm hand extending from wrist to middle palm 3 x 3 x 10 cm with bleeding exposing of tendons with sharp edge with cut tendons and blood vessels.
16. PW.12 is the Plastic Surgeon who treated PW.1 in BGS Apollo Hospital, Mysore. He says that PW.1 had suffered cut injuries on his right palm all along from wrist joint and there was nerve and tendon damage. He also deposed that the fingers of PW.1 were folded, tendons and nerves were cut. He also deposed that on 15.01.2012 he conducted plastic surgery on PW.1 from 6.00 p.m. to 11.00 p.m. On 18.01.2012 PW.1 was discharged. He has deposed that due to such injuries there was 38% restriction of movement of right wrist of PW.1. In the cross-examination of this witness, the accused did not dispute injuries of PW.1 or PW.12 conducting surgery on him or the nature of the injuries. It was only suggested to him that he has not given any information to the police.
Crl.A.No.224/2016C/w Crl.A.No.1131/2015 Crl.A.No.223/2016 13
17. Even in the cross-examination of PW.11, the injuries and the nature of the injuries were not disputed. It was only suggested to him that if the injured falls on iron gate built with sharp edged bars, such injuries could be caused. Therefore there is no merit in the contention of the defence Counsel, that in the absence of X-rays or X-ray reports the trial Court was in error in holding that the injuries suffered were grievous in nature.
18. Moreover, PW.1's case was not a case of fracture. It was the case of cutting of the tendons of nerve restricting/ impairing the movement of the right wrist and palm. Therefore the said injuries fall into Fifth category of the injuries mentioned in Section 320 of IPC namely destruction or permanent impairing of the powers of any member or joint. The judgments relied on by defence Counsel regarding nature of the injuries are not applicable.
19. Then the question is who were the authors of the aforesaid injuries found on PW.1. In the complaint Ex.P1 and in his evidence PW.1 says that first accused Nos.1 to 3 came near temple armed with clubs and assaulted him on his Crl.A.No.224/2016 C/w Crl.A.No.1131/2015 Crl.A.No.223/2016 14 legs, shoulder and back and caused him injuries. He further says that by that time accused No.4 came there on motorbike and handed over MO.1, instigated accused No.1 to kill him with the said lang/chopper. Accused No.1 assaulted him first on his back. He says that he escaped that blow. Again accused No.1 attempted to assault on his head, when PW.1 warded his hand to avert blow, weapon hit his palm and caused grievous injuries.
20. The same is the version of PWs.2 and 3 eyewitnesses in the chief examination. If the version of accused Nos.1 to 3 assaulting PW.1 with club has to be accepted, there should have been injuries on his back, legs and shoulders. The medical evidence does not speak of any injuries on the back. Injury No.2 spoken by PW.11 is linear abrasive would on right shoulder. PW.1 in his cross- examination says that when he was assaulted with club, he did not sustain any injuries on his body.
21. Further PW.2 in his cross-examination states that he does not know how and in which vehicle accused Nos.1 to 3 came to the scene of offence. He further states that he Crl.A.No.224/2016 C/w Crl.A.No.1131/2015 Crl.A.No.223/2016 15 cannot say out MO.2 and MO.3 - clubs which was in the hands of particular accused.
22. PW.3 also in his cross-examination states that he cannot say as to which of the accused was holding which of the club and whether accused No.4 came in a vehicle or by walk. He also states that when the accused assaulted PW.1, he did not suffer any bleeding injury.
23. Even before the complaint Ex.P1 was recorded, PW.1 was taken to Mandya District Hospital. At the earliest point of time, the history given by him of the injuries is recorded in Ex.P4. The said record shows that PW.1 was taken to the hospital with the history of assault by accused No.1 alone with MO.1 on the same day at 12.30 p.m. The names of other accused did not find figure there. There is no explanation as to why the other accused were also not implicated there as assailants.
24. Ex.P4 and the evidence of PW.11 - Doctor who treated PW.1 in Mandya District Hospital shows that PW.1 was taken to the said hospital at 15.01.2012 at 1.15 p.m. Crl.A.No.224/2016 C/w Crl.A.No.1131/2015 Crl.A.No.223/2016 16 i.e., soon after the incident. The complaint Ex.P1 is purportedly recorded on the same day between 2.00 p.m. - 3.00 p.m. and FIR - Ex.P10 is purportedly registered at 4.00 p.m. The endorsement of the learned Magistrate at Ex.P10 shows that FIR was delivered at 5.30 p.m. Thus there was scope for deliberation to implicate all the accused in the FIR.
25. The evidence of PW.1 and the line of defence of the accused would show that there was some ill-will between them. PW.1 says that there was some previous ill-will and he does not give the details of the same. The accused claim that despite accused No.2 denying the proposal of PW.1 to marry his daughter, PW.1 was persistent and harassing her. PW.1 in his cross-examination admits that he has studied upto PUC and working as a Cashier in a Bar at Bengaluru. To the suggestion of the accused that the said daughter of accused No.2 has completed MCA, he pleads ignorance. The accused further claim that the proposal of PW.1 to marry her was rejected as the educational qualification was not befitting her educational qualification, still PW.1 was stalking her and harassing her despite advice of the elders. Thus it becomes Crl.A.No.224/2016 C/w Crl.A.No.1131/2015 Crl.A.No.223/2016 17 clear that there was some ill-will between accused party and PW.1. Under such circumstances, the tendency of implicating the whole family or relative though actual assailant was accused No.1 alone cannot be ruled out. The trial Court having regard to the evidence on record and appreciating the aforesaid circumstances, rightly held that the evidence was not sufficient to hold that the charges against accused Nos.2 to 4 were proved beyond reasonable doubt.
26. So far as accused No.1 assaulting PW.1 with MO.1 weapon, evidence of PW.1 to PW.3 was consistent and that was corroborated by the medical evidence.
27. The Hon'ble Supreme Court in Lakshman Singh v. State of Bihar4 relied by learned HCGP (paras 9 and 10), while referring to several of its earlier judgments, held that "the evidence of injured eye-witnesses has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly". It was further held that "testimony of injured witness comes with an inbuilt guarantee of his presence at the scene of crime and is 4 (2021) 9 SCC 191 Crl.A.No.224/2016 C/w Crl.A.No.1131/2015 Crl.A.No.223/2016 18 unlikely to spare his actual assailant(s) in order to falsely implicate someone". It was further held that the "evidence of injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein".
(Emphasis supplied)
28. The Hon'ble Supreme Court in State Of Madhya 5 Pradesh vs. Mansingh held that if the evidence of injured witness is acceptable that does not require corroboration by the evidence of any other witnesses.
29. Since the evidence of PW.1 was corroborated by the medical evidence and the evidence of PW.2 and PW.3, the contention that there were other persons at the scene of offence on the eve of festivity and for their non-examination, the entire case of the prosecution shall be disbelieved deserves no merit.
30. Learned HCGP submits that having regard to the nature of the weapon used and the nature of the injuries, the trial Court ought to have convicted the accused No.1 for the 5 (2003) 10 SCC 414 Crl.A.No.224/2016 C/w Crl.A.No.1131/2015 Crl.A.No.223/2016 19 offence under Section 307 IPC and not under Section 326 IPC.
31. The evidence on record indicates that PW.1 was stalking the sister of accused No.1. The admission of PW.1 itself shows that he was involved in another criminal case in Bengaluru. It is suggested to him that he used to harass people in the village under intoxication. The incident said to have taken place near the gate of the temple where many people were moving. Having regard to the background of the commission of the offence and the fact that the injuries were not found on the vital part of the body, it cannot be said that accused No.1 intended to commit murder of PW.1. The evidence on record further shows that when PW.2 and PW.3 intervened, accused went away. If accused No.1 had intention to commit murder, he would not have left the place. Under the circumstances, the trial Court was justified in acquitting him for the offence under section 307 of IPC.
32. In view of the above legal position and the discussions made above, the other judgments relied upon by both side do not need any elaborate reference. Therefore, Crl.A.No.224/2016 C/w Crl.A.No.1131/2015 Crl.A.No.223/2016 20 impugned order of acquittal of accused Nos.2 to 4 and conviction of accused No.1 does not call for any interference of this Court.
33. Learned counsel for the first accused / appellant during the course of arguments, submitted affidavit of accused No.1 along with copy of the medical discharge summary and submitted that accused No.1 is suffering from cardiac ailment. He further submits that having regard to his medical condition and the family responsibility stated in the affidavit, the sentence of imprisonment shall be set aside.
34. Learned HCGP submits that having regard to the nature of the injuries and fact that the offence under section 326 IPC carries imprisonment upto ten years or imprisonment for life, sentence of rigorous imprisonment for one year itself is inadequate.
35. The medical evidence shows that PW.1 had to undergo surgery for the injuries inflicted on his palm. The said injury was grievous one. The medical evidence shows that PW.1 suffered 38% of restriction of movement of right wrist due to said injury. Having regard to the said injury and Crl.A.No.224/2016 C/w Crl.A.No.1131/2015 Crl.A.No.223/2016 21 the weapon used and the punishment prescribed under Section 326 IPC, the sentence of imprisonment for one year does not call for any interference. The medical records and the affidavit produced before this Court do not show that condition of accused No.1 is critical or he cannot undergo the rigorous imprisonment. Therefore, there is no ground to reduce the sentence. Hence, the following:
ORDER
(i) The appeals are hereby dismissed.
(ii) Accused No.1/appellant shall surrender before the trial Court forthwith.
(iii) Transmit the records and copy of this order to the trial Court forthwith.
Sd/-
JUDGE Sd/-
JUDGE KSR/bss