Karnataka High Court
Swetha @ Tulasi vs The State Of Karnataka on 20 July, 2018
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JULY, 2018
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL APPEAL No.1308/2010
c/w
CRIMINAL APPEAL NO.796/2010
IN CRIMINAL APPEAL No.1308/2010:
BETWEEN :
1. Swetha @ Tulasi
W/o Manjunatha
Aged about 23 years
2. Manjunatha S/o Kumar Babu
Aged about 26 years
Both are residing at Anjanapura
Gollahalli, Bangalore South Taluk
Bangalore.
... Appellants
(By Sri K.A. Chandrashekara, Advocate)
AND :
The State of Karnataka
by the Police of Thalaghattapura P.S.
Bangalore District.
... Respondent
(By Sri Vijayakumar Majage, Addl. SPP)
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This Criminal Appeal is filed under Section 374(2) of
Cr.P.C praying to set aside the order of conviction and
sentence dated 16.06.2010, passed by the Presiding
Officer, Fast Track Court-V, Bangalore Rural District, in
S.C.No.174/2009 convicting the appellants/accused for
the offence punishable under Section 307 r/w Section 34
of Indian Penal Code.
IN CRIMINAL APPEAL No.796/2010:
BETWEEN :
Smt. Yashodamma
W/o Rajanna
Aged about 36 years
R/a Masjid Road, Avalahalli,
Bangalore South Taluk.
... Appellant
(By Sri K.A. Chandrashekara, Advocate)
AND :
The State of Karnataka
by the Police of Thalaghattapura P.S.
... Respondent
(By Sri Vijayakumar Majage, Addl. SPP)
This Criminal Appeal is filed under Section 374(2) of
Cr.P.C praying to set aside the order of conviction and
sentence dated 16.06.2010, passed by the Presiding
Officer, Fast Track Court-V, Bangalore Rural District, in
S.C.No.174/2009 convicting the appellant/accused for
the offence punishable under Section 307 r/w Section 34
of Indian Penal Code.
These Criminal Appeals coming on for hearing this
day, the Court delivered the following:-
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JUDGMENT
Criminal Appeal No.1308/2010 has been preferred by accused Nos.1 and 2 and Criminal Appeal No.796/2010 has been preferred by accused No.3 challenging the judgment and order of conviction and sentence passed by the Additional District and Sessions Judge, Fast Track Court-V, Bangalore Rural District Bangalore, in SC.No.174/2009, dated 16.6.2010.
2. Brief facts of the case as averred in the complaint are that PW.1, the brother of the victim filed the complaint alleging that his parents had three siblings himself, Naga and the victim Lakshmi. Himself and his mother Sangamma were working in BBMP Office as Sweepers and about five years back his father passed away. About two months prior to filing of the complaint, accused No.2-Manjunatha, accused No.1- Swetha and accused No.3-Yashodamma came near the house of the complainant and saw her sister Lakshmi, aged about -4- three years. They asked them to give Lakshmi as they will bring her up. Though the complainant and his mother were not ready to give her, accused persons came along with one Balanna and insisted them to send Lakshmi with them. As such they sent the victim Lakshmi with accused No.1- Swetha. Thereafter once in a week accused persons used to bring the child and show to them. Even after lapse of three weeks, they did not come along with Lakshmi. By suspecting, they wanted to go the house of the accused. But in the meanwhile on 24.1.2009 at about 7.00 p.m. somebody came and told that the accused persons have caused burn injuries to Lakshmi by making her to sit on heated pan which is used for preparing jowar bread and have caused injuries on her body and they have also assaulted her. Immediately they went and saw the injured. With an intention to kill the child, the accused persons caused burn injuries on her buttocks, back, hands and face with hot pan which is used for the purpose of making jowar bread. Immediately they took -5- her to Rajanandini Hospital and thereafter went and filed the complaint as per Ex.P1. On the basis of the said complaint a case was registered in Crime No.36/2009 against the accused for the offence punishable under Section 307 r/w. 34 of IPC. Thereafter the case was committed to the Sessions Court. The Sessions Court after hearing framed the charges. Accused pleaded not guilty and hence the trial was fixed. In order to prove its case the prosecution has examined eight witnesses and marked eight Exhibits and two Material Objects. Thereafter, accused persons were examined under Section 313 Cr.P.C. by putting incriminating material against them. The accused have not led any evidence. After hearing both sides, the trial Court found that the evidence produced is sufficient to convict the accused and accordingly, accused Nos.1 to 3 were convicted and sentenced to undergo RI for ten years and to pay a fine of Rs.10,000/- each, in default to undergo SI for six -6- months. Assailing the same, the accused are before this Court in both these appeals.
3. I have heard Sri K.A.Chandrashekhara learned counsel for the appellants-accused and Sri Vijayakumar Majage, learned Additional SPP for the respondent-State.
4. Apart from grounds 1 to 16 urged in the appeal memos, the learned counsel for the appellants-accused contended that there is no material to convict the accused. The trial Court has erroneously passed the impugned judgment and order. He further submitted that there is no material produced by the prosecution to show that the accused have committed an attempt to cause the murder of the sister of PW.1. At the most the offence falls within the ambit of grievous hurt and nothing more than that. On these grounds, he prayed for allowing the appeals by setting aside the judgment and order passed by the trial Court.
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5. Per contra, the learned Additional SPP submitted by justifying the judgment and order of the trial Court. He submitted that all the witnesses have supported the case of the prosecution and injury certificate at Ex.P7 and the evidence of the PWs.1, 4 and 5 clearly goes to show that for silly reason the accused persons with an intention to cause the death of the child, caused burn injuries and grievous hurt. The trial Court after appreciating the material on record, has rightly convicted the accused. There are no good grounds to interfere with the impugned judgment and order. Appeals being devoid of merits may be dismissed. In that light, he prays for dismissal of the appeal.
6. During the course of arguments, the learned counsel for the appellants-accused has taken me through the entire deposition of the witnesses and the documents produced. I have carefully and cautiously gone through the said evidence. On going through the evidence of -8- PW.1, the brother of the victim, PW.3 the owner of the house where the accused persons are residing and PW.4 the neighbourer of the accused clearly goes to show that the accused persons brought the sister of the complainant with an intention to bring her up as they were not having any offspring. But for a week they looked after the child well and they have also named the child as Harshini. Thereafter the witnesses noticed the screaming voice of the child and when they went they noticed the burn injuries on the back, buttocks, hands and legs and other injuries and the pan and stove were also lying there. When they asked the accused persons as to why they were doing so, they told that they have brought the child and they will do whatever they want. Subsequently when PW.1 asked the accused persons as to why they have done so, they told that the child is doing first nature call in the bed and being annoyed they have done so. During the course of cross-examination of these witnesses, nothing has been elicited so as to -9- discard their evidence. Though PW.3 has partly turned hostile, in so far as the custody of the child with accused Nos.1 to 3 is concerned, and they caused the burn injuries and other injuries, is not discarded during the course of her cross-examination. As could be seen from the evidence of the doctor-PW.5 who treated the child immediately it was brought to the hospital, he noticed infected burns present over scapular region (back upper part), back of neck, buttocks and burnt area covered with unhealthy granulation tissue and yellow coloured pus in patches. He has also issued the wound certificate as per Ex.P7. All these materials clearly go to show that it is the accused who have caused the above said injuries when the child was in their custody. Though there are no records for having taken the custody of the child for bringing her up, the evidence of PWs.1, 3 and 4 substantiates the evidence of PW.1 and it is corroborated that the accused persons have taken the child for bringing her up and at that time they have seen the
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accused persons causing such injuries. Though it is the contention of the learned counsel for the appellants- accused that the evidence is not worth believable, the witnesses have categorically deposed that it is the accused persons who have caused the said injuries. In that light, the evidence produced is sufficient to bring home the guilt of the accused beyond all reasonable doubt.
7. But as could be seen from the evidence of the doctor-PW.5, who examined the victim has not specifically stated that the injuries sustained by the victim, in the ordinary course of business are likely to cause the death of the victim child. As could be seen from Ex.P7, the wound certificate, it is specifically stated that Injury No.2 is grievous in nature. In order to bring home the guilt of the accused under Section 307 of IPC, the prosecution has to bring on record that in the ordinary course of business, the act of the accused or the
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injuries caused is/are likely to cause the death of the person and the accused persons were having an intention or knowledge to cause the death of the injured person. But in this behalf, the evidence produced is not sufficient to bring home the guilt of the accused under Section 307 of IPC, but at the most, the said act amounts to nothing but causing of grievous hurt. From the evidence led by the prosecution, it clearly goes to show that the accused persons allegedly caused injuries to the victim and the evidence of the eye witnesses and the doctor will also support but the evidence of the doctor did not support that the said injury is capable of causing the death in the natural and ordinary course of things. In that light, the accused can be convicted by alteration to the offence one under Section 322 of IPC for grievous hurt. For the purpose of brevity I quote Section 322 of IPC, which reads as under:-
"322. Voluntarily causing grievous hurt.-Whoever voluntarily causes hurt, if the hurt which he intends to
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cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said "voluntarily to cause grievous hurt."
Explanation.-A person is not said voluntarily to cause grievous hurt except when he both causes grievous hurt and intends or knows himself to be likely to cause grievous hurt. But he is said voluntarily to cause grievous hurt, if intending or knowing himself to be likely to cause grievous hurt of one kind, he actually causes grievous hurt of another kind.
8. On going through Section 322 of IPC, it states that if any person voluntarily causes hurt by knowing that it is likely to cause grievous hurt, then the said provision is attracted. On going through the evidence of the prosecution, admittedly the victim is of three years and the accused persons have made the victim child to sit on the heated pan and subsequently they have assaulted and caused the injuries with the heated pan which itself clearly goes to show that they were intending to cause grievous hurt. In that light, the accused
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persons are liable to be convicted for the offence punishable under Section 325 r/w. Section 34 of IPC.
9. At this juncture, the learned counsel for the appellants-accused submitted that already the child has been taken in the custody of the natural mother and already accused Nos.1 and 2 have served the sentence as under trial prisoners for a period of more than one year 11 months 15 days and accused No.3 for one year 9 months and 20 days and now they are not having any grievance if the similar punishment is imposed which would meet the ends of justice.
10. Keeping in view the submissions made at the Bar, I feel that when accused Nos.1 to 3 were not having any intention to kill the victim girl, as per Section 325 of IPC, it is punishable with imprisonment for a term extended up to seven years and shall also be liable to pay fine, then under such circumstances, if accused Nos.1 to 3 are convicted and sentenced to undergo the
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imprisonment for a period which they have already undergone and to pay fine of Rs.10,000/- each as already ordered by the trial Court, it would meet the ends of justice. As could be seen from the impugned judgment and order, out of the fine amount, an amount of Rs.15,000/- is ordered to be paid to the victim. Since the victim is a minor and if somebody takes the said amount, it may not come to the benefit of the child and even the amount of compensation granted out of the fine amount also appears to be on the lower side.
Accordingly, I pass the following:
Appeals are partly allowed. The judgment and order passed by the trial Court dated 16.6.2010 in SC.No.174/2009, in so far as the conviction of accused Nos.1 to 3 is concerned, the same is confirmed. Accused Nos.1 to 3 are convicted for the offence punishable under Section 325 r/w. 34 of IPC, instead of Section 307 r/w. Section 34 of IPC. Accused Nos.1 to 3 are sentenced to
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undergo imprisonment for the period which they have already undergone. They shall pay a fine of Rs.10,000/- (Rupees ten thousand only) each, in default to pay the fine, they shall undergo SI for a period of six months. Out of the fine amount, a sum of Rs.20,000/- (Rupees twenty thousand only) shall be paid to the victim girl- Lakshmi @ Harshini as compensation. The trial Court is directed to keep the said amount of compensation of Rs.20,000/- in fixed deposit in any of the nationalized banks till the victim girl attains the age of majority with liberty to the natural guardian i.e., mother of the victim or the complainant-PW.1 Sri Shiva (brother of the victim), to withdraw the periodical interest for the benefit of the victim child.
Sd/-
JUDGE *ck/-