Karnataka High Court
T.R. Girish vs State Of Karnataka on 12 March, 2020
Bench: K.N.Phaneendra, S R.Krishna Kumar
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 12TH DAY OF MARCH, 2020
PRESENT
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
AND
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
CRIMINAL APPEAL NO.221 OF 2014
C/W
CRIMINAL APPEAL NO.756 OF 2014
IN CRL.A.NO.221/2014
BETWEEN:
1. T.R.Girish,
S/o Ramegowda,
Aged about 44 years,
Agriculturist,
R/o Talihallli, Vastare Hobli,
Chickmagalur District
2. E.B.Basavaraja,
S/o Byregowda,
Aged about 44 years,
Agriculturist,
R/o Ilehole, Vasthare Hobli,
Chickmagalur Taluk.
... Appellants
(By Sri.A.H.Bhagavan, Advocate)
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AND:
State of Karnataka,
By Mallandur Police,
Chickmagalur Taluk.
Represented by the
State Public Prosecutor,
High Court Buildings,
Bangalore - 560 001.
... Respondent
(By Sri.Honnappa, HCGP)
This Criminal Appeal is filed under Section 374(2) of
Cr.P.C. praying to set aside the order dated 10.03.2014
passed by the Principal Sessions Judge, Chikmagalur in
S.C.No.103/2011, convicting the appellants/accused for
the offence P/U/Ss. 341, 427, 307 of IPC and under
Section 3 read with Section 25 of the Arms Act read with
Section 34 of IPC, etc.
IN CRL.A.NO.756/2014
BETWEEN:
T.N.Vijendra,
S/o T.D.Nagappa,
Aged about 50 years,
Agriculturist, Thalihalla,
Chikkamagalur Taluk - 577 101.
... Appellant
(By Sri.Rakshith R., Advocate for
Sri.Shankarappa S., Advocate)
AND:
1. T.R.Girish,
S/o Ramegowda,
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Aged about 42 years,
R/o Talihallli, Vastare Hobli,
Chickmagalur Taluk - 577 101.
2. B.E. Basavaraja,
S/o Byregowda,
Aged about 42 years,
Agriculturist,
R/o Ilehole, Vasthare Hobli,
Chickmagalur Taluk - 577 101.
3. State by Mallandur P.S.,
Chikmagalur Taluk and District - 577 101.
Represented by S.P.P.,
High Court Complex,
Bangalore - 560 001.
... Respondents
(By Sri.A.H.Bhagavan and
Sri.A.N.Radhakrishna, Advocates for R1;
Sri.Deepak J., Advocate for R2;
Sri.Honnappa, HCGP for R3)
This Criminal Appeal is filed under Section 372 of
Cr.P.C. praying to enhance the sentence against
respondent No.1 and 2 for the offence punishable
underSections 341, 427, 307 of IPC and under Section 3
r/w. 25 of Indian Arms Act, 1959 r/w. 34 of IPC passed
by the Principal and Sessions Judge at Chikkamagalore in
SC No.103/2011.
These appeals coming on for Hearing this day, K.N.
Phaneendra J., delivered the following:
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JUDGMENT
Criminal appeal No.221/2014 is filed by the appellants who are arraigned as accused Nos.1 and 2 in SC.No.103/2011 on the file of Principal Sessions Judge, Chickmagaluru, wherein they were convicted for the offence punishable under Sections 307, 341, 427 read with Section 34 of IPC and Section 3 read with Section 25 of Arms Act and sentenced as under:
i) Accused Nos.1 & 2 were sentenced to undergo rigorous imprisonment for one year and to pay a fine Rs.500/- each for the offence punishable under Section 341 read with Section 34 of IPC, in default of payment of fine, the accused shall undergo rigorous imprisonment for one month;
ii) The said accused were sentenced to undergo rigorous imprisonment for one year and to pay a fine Rs.500/- each for the offence punishable under Section 341 read with Section 34 of IPC. In default of payment of fine, the accused shall undergo rigorous imprisonment for one month;
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iii) The said accused were also sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.5,000/- each for the offence punishable under Section 307 of IPC read with Section 34 of IPC, in default of payment of fine, the accused shall undergo rigorous imprisonment for three months
iv) Finally, the said accused were sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.5,000/- each for the offence punishable under Section 3 read with Section 25 of the Arms Act.
2. Criminal appeal No.756/2014 is filed by the complainant-T.N. Vijendra under Section 372 of Cr.P.C paying this Court to enhance the sentence passed by the Principal Sessions Judge, Chickmagaluru, against the accused/respondent Nos.1 & 2 in SC.No.103/2011 for the alleged offences.
3. The learned counsel for the appellants has argued before the Court that the parties have compromised the matter and filed compromise petition before Court. In pursuance of the compromise petition, 6 the complainant-appellant in Crl.P.No. 756/2014 has filed a memo seeking withdrawal of the appeal. Bearing the above fact in mind, the learned counsel for the appellants submits that though he does not want to argue the matter on the merit of the case in so far as the Sections 341, 427 of IPC and Section 3 read with Section 25 of the Arms Act, but considering the mitigating circumstances in the case, the period of sentence already undergone by the accused persons may be considered as the sentence for the above said offences. In so far as Section 307 of IPC is concerned, the learned counsel strenuously contended before the Court that the offence does not fall under Section 307 of IPC, utmost, it may fall under Section 324 of IPC. This Court has got discretion to reduce the sentence for the period already undergone by the accused persons, in view of the fact that the accused and complainant have compromised the matter and there are various mitigating circumstances in the case.
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4. Learned HCGP submits that, if for any reason, this Court comes to a conclusion that the offence does not fall under Section 307 of IPC, but falls under any other provisions of law, then only, the seriousness and conduct of the accused and victim have to be taken into consideration and if there is any mitigating circumstance, the Court has to exercise its discretion and may pass appropriate orders, in view of the compromise already entered into between the parties.
5. On the previous date of hearing, when the compromise petition was filed under Section 482 read with Section 320 (1) and (2) of Cr.P.C., the parties were present before the Court and have specifically stated and accepted that they are residing in the same village and earlier there was no quarrel between them and they are all law abiding citizens. Accused persons and complainant have to take care of their families and presently, they are cordial with each other and will lead life cordially in future. Therefore, 8 both of them have accepted before the Court to compromise the matter and have left it to the discretion of the Court to pass appropriate orders in this regard.
6. In this backdrop, we do not want to touch upon the merits of the judgment of conviction recorded by the trial Court so far as offence punishable under Sections 341 and 427 of IPC and Section 3 read with Section 25 of Arms Act. But we will consider so for as these provisions are concerned whether the order of sentence passed by the trial court required to be reduced or not. In the above said backdrop, we will consider the provisions under Section 307 of IPC as to, whether the offence falls under Section 307 of IPC or not or falls under any other provisions, as contended by the learned counsel for the appellants.
7. Before adverting to the said provisions, we will have brief factual matrix of the case. The case of the prosecution is that, accused Nos.1 and 2 and the 9 complainant by name Sri. Vijendra are the residents of Thalihalli village in Chikmagaluru. Accused Nos.1 and 2 and the complainant were indulged in rival political parties. In connection with the allegations that the post of President and Vice President of the village Panchayath was lost by BJP party because of CW.1-complainant and CWs.2 to 4, the accused persons had vengeance against them. Therefore, in this backdrop, it is alleged that on 24.01.2010 at about 10.15 pm, the accused persons have volleyed the complainant, wrongfully restrained him by stopping his car Maruthi Balono bearing registration No.KA-06/M-3167, when complainant and others were proceedings in the said car, accused prevented them from moving further. Accused No.2 hit the glass of the car by using SBBL Gun and broke the glass of said car and at the instigation of accused No.1, he fired at the complainant-CW1 with the SBBL gun on the left thigh and caused severe injuries with intention to kill him. The accused persons have also used the gun for unlawful 10 purpose. Therefore, they have committed the offence under Arms Act. After filing of charge-sheet for the aforesaid offence including the offence punishable under Sections 504 and 506 of IPC and committal proceedings, the trial Court has framed the charges against the accused persons for the offence under Sections 307, 427, 341 of IPC and under Section 3 read with Section 25 of the Arms Act, including Sections 506 and 504 of IPC. However, they were convicted and sentenced for the offence punishable under Sections 341, 427, 307 read with Section 34 of IPC and Section 25 of the Arms Act.
8. The prosecution also examined as many as 21 witnesses as PW1 to PW21 and documents marked at Exs.P1 to P29 and material objects are marked as Mos.1 to 15. PW1-T.N.Vijendra is the main witness who is the complainant, has narrated the incident in detail. As we have said we are not referring to other witnesses except the evidence of PW1 in order to consider whether the 11 offence fall under Section 307 of IPC or not and affirming the judgment of conviction so far as the other offence, for which the accused persons are convicted.
9. On perusal of records, the evidence of PW1 discloses that, on that particular day, accused Nos.1 and 2 have intercepted his way when he was proceeding in his Maruthi Balono car and by overtaking his car, the accused have assaulted the complainant and caused damage to the glass of the car. In fact, accused Nos.1 and 2 have abused him in filthy language saying 'bastard', on the ground that because of him, the President post of Grama Panchayath was lost by their party. By saying so, accused No.2 fired from the SBBL gun towards CW1-complainant, as a result of which, he sustained injury to his left thigh and he fell down. At that time CW2 to CW4 who were present in the car also alighted seeing the same. In fact these witnesses supported the case of the prosecution.
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10. The complainant has stated that he was admitted to M.G.Hosptial, Chikmagaluru and his statement was recorded in the hospital as per Ex.P1. He was in the hospital for 40 days. Thereafter, he was discharged. Even after the discharge, he continued to take treatment. He has identified MO1- Black color jeans pant, MO2-Broken glass pieces of the car and MO3-SBLL Gun. During the course of cross-examination, so far as these aspects are concerned, there is no dispute.
11. The Doctors have also been examined as PW17 and PW20. PW17-Dr.G.Nagaraj, M.G.Hospital has deposed that the complainant has suffered deep irregular lacerated wound over medial aspect of left upper 1/3rd of thigh with exposing ragged muscles and fresh bleeding and thota cap was present in the wound. He has issued wound certificate as per Ex.P19. But it is not elicited that, the said injury was vital in nature and there is likelihood of causing death of the injured, if such injury is caused. 13 Absolutely, there is no explanation in the examination -in- chief of the Doctor. PW20-Dr.Somasundar Adyanthaya, is another Doctor, has produced hospital records. He has also categorically stated about the injury suffered by PW1. He has not stated anything about the seriousness of the said injury, whether such injury was sufficient to cause the death of a person in the ordinary course, if immediate treatment is not provided. Thus, the above said Doctors have not specifically stated that they have examined the X-Ray report to understand any fracture being sustained by PW1. In this backdrop, the Court has to examine whether the said injury should have caused serious ramification on the injured.
12. As per the statement of PW1, the accused persons intended to cause the death of the injured, therefore, they have attempted for the same. But mere saying those words is not sufficient to attract the ingredients of said provisions of law. First of all, thigh 14 portion of a person is not a vital part of the body so that, any injury caused to such part of a person would not definitely end the life of the person unless any complications are occurred by virtue of such injury while giving treatment. Direct cause for the death of a person should be the injury sustained. In this particular case, the vital part of the body has not been selected by accused Nos.1 and 2 for the purpose of causing injury to PW1. Further, the PW17 and PW20 who are the Doctors, have not even spelt out about the injury which is sufficient to cause the death of the person in the ordinary course or there is likelihood of causing death of person, if such injury is caused.
13. In such an eventuality, it cannot be said that there was an attempt to commit murder of PW1 by accused Nos.1 and 2. If the offence does not fall under Section 307 of IPC, then the Court has to ascertain, whether it falls under any other provisions of law. Legally 15 speaking, in order to attract Section 307 of IPC, the prosecution has to establish that the accused has done such an act with such intention or knowledge, under such circumstances, if he has done the above act, he would be guilty of murder. Then only, he would be punished under Section 307 of IPC. Therefore, the knowledge and intention to cause death must be there and due to the act of the accused, the deceased must die in order to attract Section 302 of IPC. If injured survives, in such an eventuality, only Section 307 IPC would be attracted. Therefore, such intention or knowledge cannot be imputed on the accused persons, because of the nature of injury sustained by PW1 as noted above.
14. In the injury certificate-Ex.P19, the Doctor has stated that the injury is grievous in nature. But the Doctor has not explained as to how the said injury falls within the category of grievous injury, unless there is explanation by the Doctors PW17 and PW20, the Court has to examine 16 the legal provisions available for the purpose of ascertaining the nature of injury sustained. PW20-Doctor, though has stated the injured was admitted to the hospital on 25.07.2010 and he was in the hospital as an inpatient till 04.9.2010. Thereafter, he got discharged. But he has not stated that the said injured has suffered so much bodily pain for a period of twenty days. Even PW1 has also not stated that he suffered bodily pain for more than 20 days when he was in hospital. In the above said background, the Court has to look into Section 320 of IPC whether such explanation given by the Doctor and injured is sufficient to draw an inference that injured has suffered grievous injury. Section 320 of IPC explains how the Court has to consider the injury which is grievous in nature and same reads as under:
"Section 320 of IPC provides for Grievous Hurt. The following kinds of hurt only are designated as grievous hurt--
1. Emasculation;
2. Permanent privation of the sight of either eye;17
3. Permanent privation of the hearing of either ear;
4. Privation of any member or joint;
5. Destruction or permanent impairing of the powers of any member or joint;
6. Permanent disfiguration of the head or face;
7. Fracture or dislocation of a bone or tooth;
8. Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits."
14.1 The 8th description of Section 320 of IPC is only to ascertain whether such injury is grievous in nature or not, because in description Nos.1 to 7 of Section 320 of IPC, such allegations are not available. The 8th description of Section 320 of IPC, explains that, any hurt which endangers life or which causes the sufferer will have to be during the space 20 days in severe bodily pain, or unable to follow his ordinary pursuits'. Therefore, one of these things have to be established under this Section ie., the hurt must be dangerous to the life. The same has not been 18 established, because of silence of the Doctors, so far as this aspect is concerned. Neither PW1 nor the Doctors have stated that the injured has suffered severe bodily pain for a period of 20 days or he was unable to do ordinary pursuits during that time.
15. Under the above circumstances, the ingredients under Section 307 are not attracted as the grievous injury is doubtful and same is substantiated from the evidence of Doctors and PW1. Therefore, for the benefit of the parties as they have compromised, we feel, it is just and necessary to hold that the prosecution has only proved the case for the offence punishable under Section 324 of IPC.
16. Now coming to the sentence portion as narrated above, in fact, the trial Court has committed serious error in sentencing the accused for the offence punishable under Section 341 read with Section 34 of IPC, to undergo rigorous imprisonment for three years. 19 However, on perusal Section 341 of IPC prescribes only one month punishment with fine of Rs.500/- or with both. But the discretion is given to the Court either to impose sentence of imprisonment or fine or with both.
17. The offence under Section 427 of IPC is of course punishable for the imprisonment for one year extendable up to two years or fine or both. Section 324 of IPC is punishable with imprisonment which may extend to three years or fine or both.
18. On perusal of Section 25(1)(b) of the Indian Arms Act, it prescribes punishment term which shall not be less than one year but which may extend to three years and shall also be liable to fine. This proviso gives discretion to the Court that the Court may have any judicial and special reasons to be recorded in the judgment to impose a sentence for a term less than one year.
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19. Looking to the aforesaid facts and circumstances as well as the sentence that can be imposed by the Court as noted above, we have considered the mutating circumstances in this particular case, as accused and complainant have already compromised and though the offence are not compoundable in nature. Therefore, the Court has to examine whether above said circumstances pleaded by them are sufficient to impose punishment for the period already undergone by the accused persons. Admittedly, at the time of incident and prior to the incident, the parties belong to different political parties. There may be some serious vengeance between the parties and subsequently, it appears that after the incident the accused and complainant have joined hands together and they are living happily with each other by way of compromise. Further, the complainant as well as the accused persons are young and they have to look after their families and as there are no previous bad antecedents alleged against the accused 21 persons in any manner in order to draw an inference that a latitude given by the Court may be misused in future. They are not said to be anti-social elements. Therefore, under the above stated facts and circumstances, we are of the opinion that, the above said circumstances can be considered as mitigating circumstances, though compounding cannot be permitted by the Court as pleaded by accused and complainant. Therefore, under the above stated facts and circumstances, we proceed to pass the following order:
ORDER
i) The Criminal Appeal No.221/2014 is allowed in Part.
ii) The judgment of conviction recorded by the Principal Sessions Judge, Chickmagaluru, in SC.No.103/2011 for the offence punishable under Sections 341, 427 and Sections 3 read with Section 25 of Arms act are not disturbed.
However, the Judgment of conviction and order of sentence passed by the trial Court for the 22 offence punishable under Section 307 is hereby set aside.
iii) Further, we convict the appellants/accused Nos. 1 & 2 for the offence punishable under Section 304 of IPC. The accused have already undergone imprisonment for a period of 57 days during the course of investigation. Therefore, we feel it just and necessary to impose said punishment for the appellants/Accused Nos. 1 & 2 for each of the offence punishable under Sections 341 and 427 and 324 of IPC and also exercising the power under the proviso of Section 25(1)(b) of Arms Act, we impose the same period of punishment for the offence punishable under Section 25(1)(b) also.
iv) The appellants/accused Nos. 1 & 2 are entitled for set off under Section 427 IPC, as they have already undergone the said punishment imposed by this Court. There is no necessity for them to undergo more than substantial punishment of imprisonment, already undergone.
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v) Payment of fine as imposed by the trial Court for the offence punishable under Sections 341, 427 and Section 25(1)(b) of the Arms Act shall be paid by the appellants/accused Nos. 1 & 2 if not already paid, within a period of two months from the date of receipt of a copy of this judgment.
The Criminal Appeal No.756/2014 filed by the complainant is dismissed as withdrawn. The bail bonds executed by the appellants/accused Nos.1 & 2 and their sureties are hereby cancelled.
Sd/-
JUDGE Sd/-
JUDGE SB