Karnataka High Court
Rajeeva S/O Rajappa vs The State Of Karnataka on 7 March, 2012
Author: Jawad Rahim
Bench: Jawad Rahim
IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 7" DAY OF MARCH 201.2-.I:'j«..E_E'~-_' BEFORE THE HON'BLE MR.JUSTICE 'J'A--'NAAD: CRIMINAL APPEAL NOE}.1,_7:E€A_7A/2OO'SAA. , BETWEEN: RAJEEVA S/O RAJAPPA AGED ABOUT 31 YEARS V OCC: FISH MERCHANT . R/O GONDICHATANAHALLI SHIMOGA TALUK I .3 I .. AND DISTRICT 3' _ * ...APPELLANT (BY SRI "DIN*E_S.H RA_O_,_ A.Dv;..) IQ AND THE ST-.ATE._OF'V'K'AP;N»ATA'I<A"'~.,_.__ -- ' E E E V E E RESPONDENT 5 ' (BY SRI.PAJA'SUI3RAvMANYA BHAT, SPP) I CRL A FILED U/S 374(2) CR.P.C BY THE ADVOCATE FOR . 'THE».APPE'UfiN"r/ACCUSED AGAINST THE JUDGEMENT DT.8-9- "'Q5-E'_PAS'SED_BY_'T'HE P.O., FTC-II, SHIMOGA, IN S.C.NO.88/O4- CO,NvICT_ING._ THE APPELLANT--ACCUSED FOR THE OFFENCE _ P/U"/S 3Q7;="323 R/w 34 OF IPC AND SENTENCING HIM TO UNDERGC3 S.I. FOR 5 YEARS AND TO PAY FINE OF RS.3ooo/--, I.D.,_TO UNDERGO S.I. FOR 6 MONTHS FOR THE OFFENCE P/U/S * ._30,7_fOF IPC AND FURTHER SENTENCING HIM TO PAY FINE OF RS.SOO/- EACH, I.D. TO UNDERGO S.I. FOR 1 MONTH FOR THE 4. ._.OFFENCE P/U/S 323 R/W 34 OF IPC. THIS CRL.A. COMING ON FOR HEARING THIS DAYUTHE COURT DELIVERED THE FOLLOWING: ' JUDGMENT
The convicted accused is [in :a.ppjeal_ conviction for offences punish.ab4_l_e unde'r"Sect.§o'ns Iiajanid 323 r/w. Section 34 of the
2. Heard Sri l?7.a of,' learned counsel appearing for the ...app:elVla:nt::;and«:jlearVnedVI"'HCGP Sri.Raja Su bramanya --res.pon'dAe_nt[_State. ITrue*_.mat.eria.lV"al.leg_ations on the basis of which the appei'!ant%%arudgitwoliothers' were tried and found guilty are:
r .VVP\/l(1.--M.a'rsvappa lodged a report against the appellant and*two.V ot".i_1er's'alleging that while working as a raider in g the Department on daily wage basis, on 29.12.2002 "fat 9-.._45VVp.m, when he was proceeding to a STD Booth at Guondiichatnahalli to make a telephone call, at that "moment, the appellant herein Rajeeva reached there and accosted him asking as to whom he was telephoning. The M accused suspected Manappa to be telephoning to Excise Department Officers regarding illegal sale of brandyytw-hrich the accused was doing. Though the complainan3tHMa'~n,a--p:pEa___J" . told the accused he was not telephoning ariy"'off:i'ceiF"»in'-the " if Excise Department but was informing %;he:'offi.ce-h"e well, the accused became infuriated. "It is alsio:'aA!j.eg_ed ..that the appellant/accused went to___u_h'is:_h-o_useiandillrprovught the chopper M01 and assa--uVlted'A-V_th%;e on the left portion his headvcausing' Santhosh and uljoloth came to rescue the left the place carrying isffurther alleged that when of the complainant went and questiouwed as to why he assaulted the accused along with his elder brother and fawthelr"ha"mei'y'"faranath and Rajappa who are the 2"" and 3'd"'acc'use'dV'Arespectively criminally trespassed into the house Ningappa and assaulted him. The report was "registered and investigated. During the investigation, the """'Ilnvestigating Officer visited the place of occurrence, prepared mahazar and then, proceeded to arrest the accused. He recovered M.O.1 at the place of incident and State filed final report.
4. The accused pleaded not guilty M necessitating trial in which the pr,0'Vsecut.ion..y €X3:|;flibFl'8:(j'-.:fl.I4V'.V"' witnesses and produced 17 documents »iny_evide'n_ce.». 2 V'
5. The appellant denied the incriminating aspectska'ppeiartng. evidence. They produced certain.~.docum'e~ntsjAEVit.gl;i.1 to negate the charges level.|ed ::The:'i'e'arned trial Judge found prosecution indicts the appellant under Section 307 of IPC in causingg: injvury' and simple injuries to Ninggap"pa.. learned trial Judge held the evidence :'d'id_gi'notfi'inculpate accused Nos.2 and 3 viz., Taranath and i"'R.._aJ'l3_PlAI3VE'i7wihoAV.l':"a're the elder brother and father of the accused.':reslpectivelv and acquitted them for offences p-__m_.isha'b.le under Section 307 of the IPC. They were lcolnvicted for the offence under Section 323 along with the "accused no.1 which is not questioned in this appeal.
6. Sri.Dinesh Rao would submit that the injuries suffered by the victim was simple in nature. He reléeson Ex.P6, the wound certificate and evidence Dr.Gangadhar to show that the charge for"oftence:'~uinder--«--l Section 307 was untenable. He learned trial Judge having Vgacquittledirthe accused"
could not have convicted th'e'i't».a"ppellant~._for--h7the;: otfence under Section 307 of L
7. Whether the victim was likely to resu'i~t._' .deat.li._«_.o.r' o--t'névrwiseWVwill be considered later. ....
V' *He'w.oujl'Cl»lisu:bmi~t that the evidence on record doesnot ae'st_ablis'h At.he""charge of the accused beyond reasonable" would submit that the prosecution has that M.O.1 is the weapon used in crime between the acts of the accused and the Ainjurvcaused to the person of PW1. He would submit that 'prO§'ecution paraded witnesses to prove seizure of M.O.1 at ___the instance of the accused through evidence of PW11-- Basappa, PW12-Somlya Naika but these witnesses did not (3% support the recovery of M.O.1 at the instance of the accused. He would then submit that the injury caujjseclrto the person of the PW1 could not have been M.O.1--chopper, as the doctor himself_.~~ac_ce,pts::: «tjhisjj proposition. He would further subrhit t:h.aétf}in'jdur~i.es--.sufferewdd .' by victim were not likely torresult"inl"death.-".lh4e.n_c.e, charge under Section 307 is notV°m_a'deVout: --
9. Per contralylihthel Sri.Raja Subramanya has detailed deposition of PW1 circumstances which o:Vf"t'h'e::vir1c'ident but also identifies the "who caused injury to his person. Hewould' sub.mi~t:_".that the accused has indulged in cauvsiijgjvvinjuryinto'-ex/ita_l,part of the body undoubtedly with an"intenVti'ojn4.to"kill him. He submits that nature of injuries sufferedvbecomes irrelevant because the assault is on the g appelllanttoélcommit murder. In the circumstances, the lugevidrejncell of PW1 is sufficient to convict the appellant for
-- oifelnce under Section 307 of IPC which the Trial Court has 'done. He would submit that merely because the appellant W s has not suffered injury which was grievous in nature is not a ground to scale down the offence to any other charg'e['e._V
10. The contentions of both sides have "
my serious concern.
11. At the first instance', weihave to uV»e'i<a.r:nine'j';th.e circumstances in which the offenicevhags occ-ulrred. has clearly deposed that onmt-he aiggiie.incident, he had gone to STD Booth to which the accused suspectéeicjletwasito about the alleged illegzial liquor. It is also seen complainant as to whom was not convinced with the replyg.given.4"4Th:é 'co.7mpi-ainant's version is after he told the v v Waccusedi,t.ha't..he wavsllinforming his department that he was e.noi;_e.wel.:|;'»-the'accused did not believe him and suspecting hewas ca~lli_nig'lVExcise Department to inform his illegal acts, ii"-'44___V'-»went back to his house and brought the chopper and if This version has stood the test of cross _gVe>i'amination and nothing could be salvaged by the accused V' to negate such incriminating evidence. It reveals that the -8- appellant had assaulted PW1. Though the complainant has identified the appellant as his assailant, he hasfa.lgso revealed whether the accused was armed altercation commenced. It is alleged the acc_u:sed'w'entito_¢ it his house and brought the preplanning and premeditation to7-cause person of the victim. The othe'r=c:iVrcumsta~ncea the assault is on the left front temporal atrea ear." The injury caused is 6"x2"AV.skin ni«:a:j'0AArH/__é.ssels were cut and they were" was examined as PW1O as simple in nature.
Therefore,' examine whether the injuries suffered' injury or the grievous injury. as dei'ined».l5y §ection 320 of the IPC. .S:ve«cti«o:n-V320 of IPC reads thus:
~"l;C:§rievous hurt -- The following kinds of hurt x T onlydare designated as "grievous".
First -- Emascu/ation Secondly -- Permanent privation of the sight of either eye.
Nu Thirdly -- Permanent pr/vation of the hearing__ of either ear.
Fourth/y -- Privation of any member or.joint..::". i" if Fifthly -- Destruction or piermanerit /'.mjAp'ai1'r_ing~.]» of the powers of any member or'join.t; " ' Sixthly -- Permanent disfiguravt/on' of or face. i" ' " :
Seventhly -- Fracture :disloca_tioi7_ of a bone or tooth. V V' i' if ' i' ' Ei§7h endangers life or whic.hr---causes 'ii'2€V.S¢Ifferer to._b_e3' during the space of twenty._ days,in"se'vvere.___ bodily pain, or unable to follow his yordinarfy. DU-(suits. "
VArno-ngst__Ay.the eight types of the injuries ' f:i'i€!1t|0fiV€*d'wtH'€["ein, the injury suffered by the victim viz., . this case falls under the injury described "Eiobth'iy""i':e., -- Any hurt which endangers life or which 2 Acausyesiiithe sufferer to be during the space of twenty days uiinii severe bodily pain, or unable to follow his ordinary Vwpursuits. The injury suffered by the victim is incised fifiy -10- chopped wound over the left front temporal area to left ear 6"x2" and skin depth. The underneath vessels are cutiand bleeding.
13. The fact that vessels were cut if injury if not treated could not haveitproveld. "f'a.tal,:
establishes if it was not trelat,e'd,% the" have * T' bled to death. Secondly since-the causejdii was on the front temporal area' injury would have been fatal.lan_d Nodoubt, the irljurvdeepilandilldlescribed as not a grievous~--hurt~;sati1sfi.ed~-.n:iédica--l::.4opi:hion that the injury was simple7;in'*natiivrelfisjjiiiot'-l.accep'table in view of the settled principle VV"of__%la.wVV'a.s'4V'e_n'uriciated by the Apex Court in the case.' of_lA'MVohairS('__r_1gh Vs. State of Madhya Pradesh, ' 1-9'9~9'j.S«"C? 883 wherein it is clearly observed that mere 'varianceu7."ofVfplrosecution story with the evidence and medical, evidence should not lead to conclusion to reject V' Althlejprollsecution story. The court to makeout efforts within fthelljudicial sphere to know the truth. In this view, though V "HDr.Gagadhar PW1O has opined that injury is simple in -11- nature, such evidence cannot nullify the charge levelled against the accused of attempt to commit murder.
14. However, for a charge under "
the IPC certain circumstances shou-ld be if Undoubtedly, the proof regarding' murder is an essential factor -aVn'd._%ingr'ed_ie'ntt.o "co'n'stitute "
an offence under Section _3G§..",_:-ofmthe.l"IPC. must be established. The severe and grievous but _ifj;th.e, assault shows the assailant had' life of the victim, severity abiring the charge under Section.,,'307:'. Section 326. There may be cases the Viiiju:y..'i'caused may be simple in nature but'i;he__l"evidenc'e.may establish it was an attempt and 'intenytionof'«,th'e.__offender to kill the victim. In other words, the'*~i'nt.en«t.i,onf=with which such an injury is caused is paramyousnty consideration.
if In the instant case, the appellant was armed sharp object like M.O.1 and he had the opportunity to mtender a blow sufficient to sniff life out of PW1 Manappa. Urcié -12- He has no doubt attacked the victim but the fact that injury was only skin deep shows his intention mighlt»-.,:n0_t have been to kill the victim. In this view, conclusion that the injury falls within grievous hurt, yet, from the evidence olnyrvecord, it 'isfseen, if he had no deliberate intention toV7k_il'l therefore, offence is to be scaled"d'ow.n. Co'n.seciuently, the accused will be liable foiA*-._._.p'fnnishm-_ent~--for'3~2_6 of the IPC. In the r_esu:lt,_ appellant is modified. the charge 307 but convictedi'fo.r:'o'ffen'cew'iJn*derV'Sect'ion"§326 of the IPC. Relgardingl p_uVn«i's--h»_m"ent"'is concerned, the Trial Court has sentenced~-him': for imprisonment of five years. The. a'Circu'msta'nc'esy_.in the offence is committed and the nature ovf"VinVjufry..-vcause persuades me to accept appellant's counselpccntention that punishment is harsh. It is also my notice that the appellant is in custody for days during trial and even after his conviction till was released by this Court. Under the circumstances, the accused is sentenced to imprisonment for the period of at
-13..
detention already undergone by him and also to pay a fine of Rs.10,000/--. On recovery, the fine amount shall over to the victim PW1--Manappa as permissible under Section 357 of Cr.P.C. _I.n,yd'-efaul:t,i.4_the accused shall undergo imprisonment»forj;aK_period"--of,_%'tyyoyi' months.