Karnataka High Court
Narayanaswamy S/O Muniswamy Gowda vs State Of Karnataka By Srinivasapura ... on 31 March, 2010
Equivalent citations: 2011 CRI. L. J. 239, 2010 (4) AIR KANT HCR 1075, (2010) 3 KANT LJ 647, (2010) 3 KCCR 1958, (2010) 4 ALLCRILR 310
[By SrlhT_N':_1_1i1r1Va for Sri. S.K.Venkata Reclcly, )) Kamataka. " ._By'_S:éi;11iVaSapura Police, Kcfiar District. V 'Sri.----i%.V.Ramakrishna. HCGP) 1 EN me HIGH COURT OF' KARNATAKA AT BANGALORE DATED THIS THE 318'? day of MARCH, 2010 BEFORE 4 THE HONBLE MR. JUSTICE CRLAPPEAL NUMBER61 /20Q_4__,':"_: ' F" % BETWEEN: ' 1. Narayanaswamy, _' S/0. Muniswamy Gowda, Aged about 43 years, 2. Seenappa, S/0. Mfit1isWa_«ifi_§f Aged about 36 Y'%ar"s,~ ' 3 V' 3. Seenappa @'Kama1ah1rh:ana V M0mmag_a'i?see _i1a, " " " " S/0. Aged 4. VenkatReha1afiathy','Sj V/'eh. ' 'R;eii'nappa, Aged aboui' yvears, ; = " A11_.are res,ic_3.ef1ts of Viliage, srjin'1vasapu:ra:,.A'Ea1eu:; K0Iar"D'istrict. '~ ' V V ... Appellants : Respondent
/ 5"/ 2 THIS CRL. APPEAL IS FILED U/S. 374(2) CR.P.C. BY THE ADVOCATE FOR THE APPELLANTS/S AGAINST--THE JUDGMENT DATED.9.12.20o3 PASSED BY TI%IE=. 3 ADDITIONAL S.J., KOLAR IN S.C.NO.188/96, COIWICTINO THE APPELLANTS/ACCUSED I To 4 FOR THE;"'OEFEN'{:_E PUNISHABLE UNDER SECTION 307 R/W SEQ34 .Q'E'IPC'-A AND SENTENCINO THEM To UNDERGO S.I._ :%'"oI'a,I0v.yEAII,S" ., AND TO PAY FINE OF RS.10,000/_-- EACHA1.I.D';,.._ji1'o._V UNDERGC) S.I_ FOR 2 YEARS; FOR THE, "QFFENQpEA' PUNISHABLE UNDER SECTIoN.30*fl R:/WI SECTION .QI<'--_ IPC AND ETC., _ THIS APPEAL COMING (§N,:F'OR HEARINO. THISVV DAY. THE COURT MADE THE__ FOLLQWI_NG:Iw . 9 This appeal is Challenging their Conviotion of s«eI1terICeVVpasSed by the 13* AcIcIItIQfiaIo' Jgggige, AAA in S.C.No.188/1996 by dateIdA_»T'"--~Qi11«.'December, 2003 convicting thi-Z' a.ppe11aIitS:V fOr.T't1II'e offence under SeC.307 F/W 34 Sé'DjE€nCi'fi'§"AV€aCh of them to undergo Simpie a period of 10 years and to pay a fine of each, in default of payment of fine, to VVp"underg;{o»«--:further simple imprisonment for a period of tWo-- years.
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4. Before the Sessions Court, in order to prove the offence, the prosecution in all examined PWs.T and got marked EXP} to P-11 and produced'
4. The defence got marked Ex,§3;"1"-«to statement of PW-3 in their Vdefence."--_fAId'he questioned under Sec.313"'--v..jCr,.P.Cl. "their V participation in the crime and"'tt:eirV'dp'c.ase some of total denial. Thereafter, _.th:eA.'.:'j}:t;f(:secution and the defence, convicted the appellants aforesaid. Aggrieved by andsentence, the appellants have in this appeal.
55. fleard.:VS1'nt. Nalltna K. for the appellants and l égégiiiakarishav. llll "HCGP for the respondent--State. A ti-3er«used..th.e records.
6. In to prove the case, the prosecution has td3"e.v..amanea" one Shanthamma PW--1 who is the e._'C'r._§nIpii'ainant. It is in her evidence that on the date of it "offence, she and her husband and her brother's son 6 'machchu' which was in the hands of one Nagaraj and the knife which was in the hand of 29¢' accused and another knife in the hand of filth accused.
7. PW-2 Thimmaiah who is husband__'~':o.f"
has stated in his evidence that onmthe datemosf ': ..Vi_'1T!dl'ClV4_C5'i'V1t,",_V it it the accused made the bus stopped' and the lst accused assaultedlhim oi;.his.VVrigh't.;l'egw§}ith " V 'machchu'. Thereafter, ago-pal .assault.ed~ on his right thigh with Shanthamrna, his wife came_,to_his rescue; l§5*a'ccu'sed' also assaulted her. I1o_t"Wsveen as to what has happened «to the hospital and took treatment. 4' V haswaltsvo stated that on the date of the irilci-dveriti"whei1,Ti:he bus came near Kethaganahalli at about a.m., let accused assaulted him on his u.""--.V:L"11ose a knife. He has also assaulted him on the t._&'rIivght-e"side of his chest. and left arm. Accused 2 to 4 cafught hold of him and is? accused assaulted him with a stone. Then accused No.5 assaulted him on his chest and other parts with knife. The other eye xvitnessesiiri the case viz., PW--7 Venkatareddfl' V M * Venkateshreddy, PW~12 i\§agarajiagowda I§W:-F1 Ramappa have turned hostile tease» of"
prosecution.
9. PW--4 is Dr. S_pGupthadVr.:gy}u1'b'.has eijszvarnined the injured Thimmappa has stated that on 5.5.95 at.§boa_t lg2--:f1oon;'V'onéffhimmappa came 5to the hospit:a1'..'VfiWith of assault, with a chopperusw 10 am., and that he noticed tithe'follovfiitg.five:"i'12juries on his person:
;'.'{./].)x Cut 35@'X " into muscle deep on the gpright1eg'iIr'the Iower1.3%"d:
V " " cut injury 2" above the right leg, A 'iatferai malulous, 11/fa" X 3&2" into ipsiibcutaneous deep. ;
.. (I.3)'V.hea1 of the right leg most of it cut and separated;
it v _ H the mid» line on the back of the chest." 8 (4) out injury on the right upper arm on the lateral side 4" above the right elbow into muscle deep; 3 (5) Fracture of right Tibia and Fracture. ' right X--ray No.3625, dat¢,d;e--5g.9'5'.-- Ci . it He has opined that injuries I'1',gib:oV"e::.:\\:%1>,$ grievous and injuries 3 and»'4».__areAsiihple he has issued the wound it
10. PW--4 has theisame day, he examined one to him with the history with knife and he noticed --
it 1. 'en' the right side of the cheust not known, 11/2" medial pp 4.; and ataove the right nipple; V 2.._'stab& on the left upper arm, 1"
'two in number ~«~ one by the side of l. through and through upto muscle ll 1. 3. incised skin deep injury 11/2"x1/89"
He has opined that the above injuries are simple in nature.
11. PW-5 K V Narayanaswarny is to the mahazer Ex.P--4 who hasmtumed h.ost:i'lle' case of the prosecution, so also l5tV%'€x_x K reddy. PW--8 C Narayanaplpalmis. a retiredr Police who has received filed charge sheet against PW--9 is the investigating' conducted V has examined PW-
l Shanthoinnia before him with the histo1¢y.,(;f as'sa.t1lt; He found the following injuries on the jjersoii o£Shanthamma:
over the right wrist measuring 1"):
hi2.' llotenderness lower 1/31" wrist on the ulnar 'A it aspect;
it tenderness over the right shoulder. Shoulder movements restricted and painful." % He has opined that the injuries found on Shanthamma are simple in nature and he has the wound certificate Ex.P--6.
13. Now, it has to be seeriliwiiether torde1¥.wotf:
conviction passed by the Sessionsit'Judge.'s_aga.inst».:.the"~_ appellants is proper and of law and on facts. . l I
14. It is seen that the injured party and the in nature and it is in the 1.,.t'i.s§5.a1s¢ PW2 and PW~»3 that to Congress and appellants? party and this is the reason. the Vincideriit has taken place. There is no "'persoua}"t'*terinfr_ity between the parties and nowhere in has alleged that the accused it _ wanted to' away with the life of the complainant PW-l Dandp_two'-* other injured persons. The evidence of PW2
--':PW--3 does not indicate that there was any intention or any motive for the accused to assault PWs.1 to 3 except the political rivalry. Therefore.,'_ on this ground alone. it can be said that there intention nor motive for the accused [to H murder of the injured personjMin«orlderd Sec.307 IPC. Further if one look__s"--at theeeeeeys'eri, injuries on the person of to 3,._'_a1.1V are on non--vital par.ts<,_of art?
individually or collectivelyll danger to the life of the' ~In___,:l.fthis View of the matter, the. persons to commit murder" "all made out. Hence, I hold thvatthel 19c has not been made 'out agai.nstthelV'accused persons and therefore, I 'aficcusexdl/'appellants of the offence under 155;' Having said so, now I have to look as to what Joffence that could be made out against the appellants, if "against whom. It can be seen from the wound T "certificate Ex.P~2 that the name of only accused No.1 has been mentioned therein as the person who.__has caused assault on the injured--Thimmaiah. the names of other persons are concernedgixt do_es ' find place in EX.P~--2. On this count alone, doubt can be extended to accused f:'N\os,2f'3".i,A.hd if *
16. Even the Wound ceiftieiicateyh the history of assault Rajalgdoijalfvyand this Rajgopal is not an Out of six accused perso1'i:sLC found the name of Rajagopal in it. However, the name specific in this case and against him has been mentioned "the Weapon used is also noted the \}t?o11nd_ certificate. Therefore, one can safely come to the" eon_clulsio'n that the accused Narayanaswamy's V V' pres'e.nce"ai1d' participation in the commission of offence ihasecbeeii "established beyond reasonable doubt by the _' - _ prosecution.
17. Now we have to see as to what offence-___has been committed by accused No. 1 / appellant No:I.. -4. Dr. D S Guptha states that injuries No.1 and' 2 wound certificate issued by him :at"EX.P_--'.2' areV"'gri.ev--o'us"'. in nature. The learned PICGP * No.3 found on the person it the V right leg, most of it. arnounts to a grievous injury and of body or emasculation of grievous "hurt" as dfherefore, the offence committedv ' A lslarayanaswarny falls fully within IPC punishable under Sec.3:26 regard to the nature of weapon MO~ f _ aé.{ed'i:Abygappeiiafit No.1. Therefore, I hold that guilty of offence under Sec.326 IPC.
18.._.fH-eard Srnt. Nalina regarding sentence to be Vlpimposeld on appellant No.1. it is stated that appellant 'i "is aged about 60 years and he has got his wife if children and aged mother, who are depending on his income. It is stated that he has not been COI'i!'f.Ct€d so far and he is a first offender. Hence, she pifa'ys'-fora lenient view. However, having regard to weapon and also the act of j'sto'pp_ing cutting the leg by sharp weapon,A:4'.ta'king View would have the effect the society. Therefore, having theuiinflterest of accused No.1, his age and also interest of the;'~'s'o-ciety, 'tomifnpose sentence of six and a fine of '._«"Vfii1;ther sentence of six monthsvV"'sin:pie' for the offence under Sec.3f36 {Apex} _ '~
- v _ it E'ti'ieVVd'1°e_suit, appeal is ailowed in part and the conviction passed by the trial court is _modified,"incfthat appeai filed by appeiiants 2 to 4 is if allowed and their conviction is set aside. A1 is convicted e.fo'rvV"offence under Sec.:326 IPC and sentenced to it lfgmgorous Imprisonment for Six months and fine of csg Rs.1{),OGO/--. in default, Simple Imprisonment forp.-Six months. The fine. if any, paid by appellants 2 tofi-V be refunded to them and their bail bonds ' cancelled. Appellant No.1 to surryendderfoir sentence imposed on him as per this._ordef,_'g'Fhe" fine". V amount; if recovered I sh£I11..V:VV"be pa§;'d_V_ Thimmaiah.
QTUDGE