Karnataka High Court
Devaraj vs The State Of Karnataka on 24 September, 2012
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 24TH DAY OF SEPTEMBER 2012
BEFORE
THE HON'BLE MR JUSTICE K. N. KESHAVANARAYANA
CRIMINAL APPEAL No.371/2005 (C)
BETWEEN:
Devaraj,
S/o Hanumagowda,
Aged Major,
Occ: Agriculture,
R/at Mosale Thimmanahalli,
Hassan Taluk & District. ....Appellant
(By Sri.R.B.Deshpande, Advocate)
AND :
The State of Karnataka. ....Respondent
(By Sri. Rajesh Rai.K.,HCGP)
This Criminal Appeal is filed under Section 374 (2)
Cr.P.C by the advocate for the appellant against the
Judgment dated 06.01.2005 passed by the Additional
Sessions Judge and the Presiding Officer, Fast Track
Court-II, Hassan in S.C.No.110/1999, convicting the
appellant/accused No.1 for the offences punishable under
Sections 326 and 324 of IPC and sentencing him to
undergo R.I. for 5 years and to pay a fine of Rs.2,000/ in
default, to undergo S.I. for 6 months for the offence
punishable under Section 326 of IPC and further
sentencing him to undergo R.I. for 2 years and to pay fine
of Rs.1,000/- in default, to undergo S.I. for 3 months for
the offence punishable under Section 324 of IPC. Both
substantive sentences to run concurrently.
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This Criminal Appeal coming for hearing on this day,
the court delivered the following:
JUDGMENT
This appeal by the convicted Accused No.1 is directed against the judgment of conviction and order of sentence dated 06.01.2005 passed by the Presiding Officer, Fast Track Court-II, Hassan, in S.C. 110/1999, convicting him for the offences punishable under Sections 326 and 324 of IPC and sentencing him to undergo Simple Imprisonment for a maximum period of five years and also to pay fine.
2) The appellant/Accused No.1, his younger brother, father, two sisters and wife were tried for the offences punishable under Sections. 143,147, 148, 324, 326 & 307 r/w. 149 IPC on the allegation that all the accused persons forming into an unlawful assembly at about 7.30am on 26.01.1995 and by sharing a common object of doing away with the life of PW.4-Biligiri Gowda and others in the background of land dispute between PW.3-Javaregowda, father of PW.4 and Accused No.3- 3 Hanumegowda, brother of PW.3 and in furtherance of the said common object, they committed acts of rioting, assault, etc. on PW.4-Biligiri Gowda, his sister- PW.2:Kamakshi, father and Channamma, the mother-of PW.3: Javaregowda, with dangerous weapons like chopper, club and stones and thereby caused them grievous hurt.
3) According to the case of the prosecution, immediately after the incident, the injured persons were brought to the District Hospital at Hassan, where PW.1- Dr.Y.D. Thimmaiah treated all of them and as per the advise of the Doctor, PW.4 was taken to major hospital. While PW.2 was taking treatment in the hospital at Hassan, police came to the hospital, recorded the statement of PW.2 about the incident as per Ex.P.6 and based on Ex.P.6, case in Crime No.26/1995 came to be registered and FIR was submitted to the jurisdictional Magistrate.
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4) During investigation, the Investigating Officer visited the scene of occurrence, drew-up spot mahazar, seized the blood-stained mud as well as the sample mud as also the weapons said to have been used in the commission of the offence, which were produced by PW.6- Manjula. During investigation, the statements of the injured and other witnesses were recorded, Accused Nos. 2 to 6 were arrested on the date of the incident and later subjected to judicial custody. The seized articles were sent to FSL for examination. Efforts made to trace Accused No.1 failed and he was found absconding. Therefore, on completion of the investigation, charge sheet came to be filed by showing Accused No.1 as absconding, for the offences punishable under Sections 143, 147, 148, 324, 326 and 307 r/w. 149 of IPC. Subsequently on 21.04.1998, Accused No.1 was arrested and released on bail on 26.06.1998.
5) All the accused persons pleaded not guilty for the charges levelled against them and claimed to be tried. In the meanwhile, it appears Accused No.1 remained 5 absent and therefore, pursuant to the warrant issued, he was again arrested on 21.08.2003 and since then he remained in judicial custody till the disposal of the case on 06.01.2005.
6) The prosecution in order to bring home the guilt of the accused persons for the charges levelled against them, examined PWs.1 to 14 and produced documentary evidence-Exs.P1 to P13 and material objects-MOs.1 to 12. The accused persons denied all the incriminating circumstances appearing against them in the evidence of the prosecution witnesses. The accused did not choose to lead any defence evidence. Their defence was one of total denial and that of false implication in the background of the land dispute.
7) After hearing the learned counsel appearing on both sides and on assessment of oral as well as documentary evidence, the learned Sessions Judge by the judgment under appeal held that the evidence placed by the prosecution beyond reasonable doubt established that 6 Accused No.1 committed acts of assault on PW.4-Biligiri Gowda causing him grievous hurt and also assaulted PWs.2, 3 & 5 causing them simple hurt, therefore, he is guilty of the offences punishable under Sections 324 & 326 of IPC. The learned Sessions Judge was of the view that the evidence of PWs.2 to 5 with regard to the overt acts attributed against Accused Nos. 2 to 6 are not consistent and cogent, and therefore, no reliance can be placed on their evidence in this regard. In that view of the matter, the learned Sessions Judge held that the prosecution has failed to prove the guilt of Accused Nos. 2 to 6 for any of the charges, therefore, the learned Sessions Judge acquitted Accused Nos. 2 to 6 of all the charges and convicted appellant/Accused No.1 for the offences punishable under Sections 324 and 246 of IPC. Aggrieved by the said judgment of conviction and order of sentence appellant/Accused No.1 is in appeal before this Court.
8) I have heard the learned counsel appearing for the appellant/Accused No.1 and the learned High Court 7 Government Pleader appearing for the Respondent-State. Perused the records secured from the trial Court.
9) In the facts and circumstances of the case, the points that arise for my consideration are,-
i) Whether the judgment under appeal suffers from any perversity or illegality warranting interference by this Court?
ii) Whether the learned Sessions Judge is justified in convicting appellant/Accused No.1 for the offences punishable under Sections 324 and 326 of IPC? If so, whether the order of sentence calls for modification?
10) Having heard the learned counsel on both sides and having perused the evidence on record, I am of the considered opinion that the judgment of conviction, convicting the appellant/Accused No.1 for the aforesaid offences does not suffer from any perversity and illegality warranting interference by this Court.
11) Perusal of the evidence of PWs.2 to 5 indicates that their evidences are consistent and cogent with regard 8 to the incident of assault on them by the appellant/Accused No.1. Merely because their evidence regarding the role of Accused Nos. 2 to 6 has not been found acceptable, as rightly observed by the learned Sessions Judge, their evidence with regard to the acts committed by the appellant/Accused No.1 is convincing and has been rightly accepted. No doubt, even according to the prosecution, the land dispute between PW.3 and his brother Accused No.3 was the cause for the incident. Thus, the existence of the land dispute between PW.3 and Accused No.3 is an admitted fact. Motive or ill-will being double edged weapon, cuts on either side. Therefore, having regard to the facts and circumstances of the case, the court will have to find-out as to in whose favour the balance tilts. In the case on hand, reading of the evidence of PWs.2 to 5 clearly indicate that the land dispute was the cause for the appellant to commit acts of assault on PWs.2 to 5. The evidence of PWs.2 to 5 with regard to the injuries sustained by them is corroborated by the evidence of PW.1-Dr.Y.D. Thimmaiah, who examined and treated 9 them in District Hospital at Hassan when they came to the hospital with the history of assault on that day, at about 8.00am. in the village and on examination, he noticed each one of them having sustained injuries. He has stated in detail the nature of the injuries suffered by each of PWs.2 to 5. Though this witness has been cross- examined, nothing has been elicited to discredit his evidence. Presence of injury on the persons of PWs.2 to 5 has not been challenged in the cross-examination of PW.1. The only endeavor sought to be made during cross- examination was that by a fall from the bullock-cart such injuries could be sustained. However, the witness has denied this suggestion. Thus, from the evidence of PWs.1 to 5 it is clearly established that PWs.2 to 5 had sustained injuries in the incident of assault by the appellant/Accused No.1. The evidence of PW.1 further establishes that PW.4 had sustained a grievous hurt apart from other simple injuries. The evidence of PWs.2 to 5 clearly establishes that the appellant/Accused No.1 assaulted PW.4 with a chopper on the head resulting in 10 grievous hurt. Similarly by using chopper he caused simple hurts to PWs.2, 3 & 5. The chopper is a dangerous weapon which if used is likely to cause death. Having regard to the nature of the evidence on record, in my opinion, the learned Sessions Judge is justified in holding that the appellant/Accused No.1 is guilty of the offences punishable under Sections 324 and 326 of IPC. The learned Sessions Judge has assigned cogent reasons for accepting the testimony of PWs.2 to 5. The findings are sound and reasonable regard being had to the evidence on record. The finding does not suffer from any perversity or illegality warranting interference by this Court. In this view of the matter, the judgment of conviction, convicting the appellant/Accused No.1 for the offences punishable under Sections 324 and 326 of IPC does not call for interference by this Court.
12) As could be seen from the judgment under appeal, the appellant/Accused No.1 had spent nearly about 1 year, 6 months and 17 days in custody upto the date of the judgment of the trial Court. Subsequently, he 11 has spent about 4 months 7 days in custody till the sentence was suspended by this Court. Thus, the appellant/Accused No.1 has spent nearly about 1 year and 11 months. He is now appears to be aged about 50 years.
13) It is brought to the notice of this Court that appellant/Accused No.1 has marriageable daughters apart from sons who are to be educated. The incident occurred in the year 1995 about 17½ years ago. The appellant/Accused No.1 as well as PWs.2 to 5 are closely related. Appellant/Accused No.1 is the nephew of PW.3 and cousin of PWs.2 & 4. There was some land dispute between the father of the appellant and PW.3. The incident occurred in the background of the said land dispute. Taking into consideration all these factors, I am of the considered opinion that the interest of justice would be met by sentencing the appellant to undergo imprisonment for three years and also to pay fine of Rs.50,000/-, in default, to undergo rigorous imprisonment for six months for the offence punishable under Section 12 326 of IPC and by affirming the sentence passed by the trial Court for the offence punishable under Section 324 of IPC.
14) In the result, the appeal is allowed-in-part. While affirming the judgment of conviction, convicting the appellant/Accused No.1 for the offences punishable under Sections 324 and 326 of IPC., the order of sentence is modified. The appellant/Accused No.1 is sentenced to undergo Rigorous Imprisonment for three years and to pay fine of Rs.50,000/- (Rupees Fifty Thousand only) for the offence punishable under Section 326 of IPC. In default to pay fine, he shall undergo R.I. for 6 months. He is further sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.1,000/- for the offence punishable under Section 324 of IPC, in default, to undergo rigorous imprisonment for two months.
The sentences of imprisonment are ordered to run concurrently. The appellant/Accused No.1 is entitled for set-off for the period of custody already undergone as provided under Section 428 of Cr.P.C.
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On realisation of the fine amount, a sum of Rs.40,000/- (Rupees Forty Thousand only) shall be paid as compensation to PW.4.
The bail and surety bonds executed by the appellant/Accused No.1 are ordered to be cancelled. The appellant/Accused No.1 is directed to surrender himself before the trial Court forthwith and upon such surrender, he shall be committed to the prison to serve the sentence. In case of failure to surrender, the trial Court shall take necessary steps to secure his presence and to commit him to prison.
SD/-
JUDGE KGR*