Karnataka High Court
Gunda Alias Byra S/O Gopala vs State Of Karnataka on 20 August, 2015
Bench: Mohan M. Shantanagoudar, R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF AUGUST 2015
PRESENT
THE HON'BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR
AND
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL APPEAL No.332/2011
C/W
CRIMINAL APPEAL No.603/2011
IN CRIMINAL APPEAL No.332/2011
BETWEEN:
Gunda alias Byra
Aged about 23 years
S/o Gopala
Siddappajigudi Road
8th Cross , Sunnadakeri
K R Mohalla, Mysore. .. APPELLANT
(By Sri P Nataraju, Adv. for
M/s P Nataraju Associates)
AND:
State of Karnataka
By K R Police Station
Represented by State
Public Prosecutor
High Court Building
Bangalore-560 001. .. RESPONDENT
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(By Sri K R Keshavamurthy, SPP-2)
This Criminal Appeal is filed under Section 374(2)
CR.P.C praying to set aside the order dated 01.03.2011
passed by the III Addl. S.J., Mysore in S.C.NO.187/2009 -
convicting the appellant/accused for the offences
punishable under Sections 324 and 326 of IPC and etc.
IN CRIMINAL APPEAL No.603/2011
BETWEEN:
The State of Karnataka
through K R Police Station. .. APPELLANT
(By Sri K R Keshavamurthy, SPP-2)
AND:
Gunda @ Byra
S/o Gopala
Aged about 23 years
R/at Siddappaji Gudi Road
8th Cross , Sunnadakeri
K R Mohalla, Mysore. .. RESPONDENT
(By Sri P Nataraju, Adv. for
M/s P Nataraju Associates)
This Criminal Appeal is filed under Section 377 CR.P.C
praying to modify the sentence imposed on 01.03.2011
passed by the III Addl. S.J., Mysore in S.C.NO.187/2009 -
convicting the respondent/accused for the offence
punishable under Section 326 of IPC and etc.
These Criminal Appeals coming on for hearing this day,
MOHAN M. SHANTANAGOUDAR, J., delivered the
following:
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JUDGMENT
The judgment and order of conviction dated 1.3.2011 passed by the III Addl. Sessions Court, Mysore in Sessions Case No.187/2009 is called in question in these two appeals.
By the impugned judgment, the trial Court has acquitted the accused for the offence punishable under Section 307 of IPC, but has convicted him for the offences punishable under Sections 324 and 326 of IPC.
2. Crl.A.No.332/2011 is filed by the convicted accused seeking for an order of acquittal. Crl.A.No.603/2011 is filed by the State seeking the order of conviction against the accused for the offence under Section 307 of IPC.
3. Case of the prosecution in brief is that the accused had quarreled with Smt.Gayathri (P.W.5) prior to the incident in question; in that regard P.W.7 (Smt.Haseena) 4 had informed the police about the quarrel which ensured between the accused and P.W.5; P.W.8 is the husband of P.W.7; being enraged by the act of P.W.7 informing the police about the earlier quarrel of the accused with P.W.5, the accused went in front of the house of P.W.7 and called her out of her house; P.W.7 came outside her house and P.W.8 followed her; immediately, the accused tried to stab P.W.7 with knife M.O.No.2. However, she escaped such assault by accused, but in the process she sustained one simple injury i.e., a contusion over the right parietal region. Since P.W.8 intervened, he was assaulted by the accused with a ring like weapon wore by the accused on his forehand, consequent upon which, P.W.8 sustained multiple abrasions over his upper lip, lower lip and chin; his nasal bone was also fractured. The wound certificate- Ex.P6 in respect of P.W.8 issued by the Doctor discloses that P.W.8 has sustained grievous injury apart from one simple injury, whereas, Ex.P5, the wound certificate of 5 P.W.7, specifies that she has sustained some one simple injury.
The aforementioned incident has taken place about 4.30 p.m. on 21.4.2009. The complaint came to be lodged by P.W.8 as per Ex.P7 at 5.15 p.m. on the very same day i.e., on 21.4.2009, which came to be registered in Crime No.175/2009 in Krishnaraja Police Station, Mysore city, for the offence punishable under Section 307 of IPC. The police, after investigation laid the charge sheet.
4. In order to prove its case, the prosecution in all examined 10 witnesses, got marked 9 exhibits and two material objects. On behalf of the defence no witness is examined.
5. Sri.P.Nataraju, learned Advocate appearing on behalf of the convicted accused taking us through the entire material on record submits that the eyewitnesses P.Ws.1 and 2 have turned hostile to the case of the 6 prosecution; number of variations are forthcoming in the evidence of P.Ws.7 and 8; though it is the case of the prosecution that knife is allegedly used for the commission of the offence, the nature of injuries sustained by either of the two injured would not support the said theory; the prosecution with ulterior motive blown the incident out of proportion. The incident has taken place on the spur of the moment and without any intention on the part of the accused. On these among other grounds, he prays for acquittal of the accused.
Sri.K.R.Keshavamurthy, learned SPP-2 not only argued in support of the judgment of the Court below, but also contended that it is a fit case to convict the accused for the offence punishable under Section 307 of IPC, in as much as, the accused has used sharp cutting weapon for commission of the offence. The situs of injuries also may have to be taken into consideration while imposing conviction on the accused in as much as, the injured 7 witnesses have sustained injuries on their vital portion of the body i.e., on the face and head.
6. P.Ws.1 and 2 are the eyewitnesses to the incident. According to the prosecution, they came to the spot and pacified the quarrel. However, both of them have turned hostile to the case of the prosecution. P.W.3 is the witness for scene of offence mahazar Ex.P3. He has also turned hostile. P.W.4 is the witness for recovery mahazar Ex.P4, under which, one knife, one punch (a ring like weapon) apart from two gold ornaments were recovered from the accused. P.W.5 is another witness for Ex.P4, but she has turned hostile to the case of the prosecution. P.W.6 is the Doctor who treated both the injured and issued wound certificate as per Exs.P5 and P6. He has also recorded the history given by the injured in respect of the incident in question. P.Ws.7 and 8 are the injured eyewitnesses. They have fully supported the case of the prosecution. Among them, P.W.7 is one of the witnesses for the scene 8 of offence panchanama Ex.P3. P.W.9 is stated to be the eyewitness to the incident. He has also turned hostile to the case of the prosecution. P.W.10 is the Inspector of Police. He investigated into the crime and laid the charge sheet. The very Inspector had registered the crime based on the complaint Ex.P7 lodged by P.W.8.
7. From the aforementioned narration it is amply clear that the case of the prosecution mainly depends upon the evidence of two injured eyewitnesses and the evidence of the Doctor who treated the injured.
8. P.W.7 has deposed about the motive for commission of the offence as narrated in the complaint Ex.P7. She has specified that quarrel was taking place a day prior to the incident in question between the accused and Gayathri P.W.5; the accused was of the impression that P.W.7 had informed about the incident of quarrel between himself and Gayathri to police and hence, the 9 accused was enraged against P.W.7. Thus, the accused came in front of the house of P.W.7 at 4.30 p.m. on the date of the incident with knife and he had worn Bangle like metal weapon (called as punch) and tried to stab P.W.7 with knife. However, P.W.7 escaped, but she could not escape from a simple injury caused by accused on her right parietal region. P.W.8 being the husband of P.W.7 tried to intervene and he was assaulted by the accused by using punch, consequent upon which, P.W.8 sustained fracture of his nasal bone. Though P.W.7 is subjected to lengthy cross-examination, nothing worth is brought on record by the defence. P.W.7 has identified M.O.2 knife used to by the accused for commission of the offence. She has also deposed about the scene of offence panchanama drawn by the police in front of her house. We find that the evidence of P.W.7 fully supports the case of the prosecution as found in the complaint Ex.P7.
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9. P.W.8, the husband of P.W.7, has sustained grievous injury on his nose in as much as, his nasal bone is fractured. He has also deposed about the incident in question almost in paramateria with the deposition of P.W.7. He has reiterated all the facts and circumstances of the case including the motive for commission of the offence as disclosed by him in his complaint Ex.P7. His deposition clarifies the manner in which the accused assaulted P.W.7 and as also P.W.8. Immediately after the incident, both the injured were rushed to the hospital and took treatment. P.W.8 has deposed about lodging of the complaint as per Ex.P7. He has also identified the weapon (M.O.No.1) used by the accused for assaulting P.W.8. The defence has utterly failed to discredit the evidence of P.W.8 in the cross-examination. On the other hand, P.W.8 has withstood in his cross-examination by deposing about the incident in question.
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10. We find that the evidence of P.Ws.7 and 8 is consistent, cogent and reliable. There is no reason as to why they should tell falsehood particularly, when there is a sole accused in the matter. Generally, the injured witnesses would not try to foist a false case against an innocent person ignoring real culprit. The presence of the injured on the spot cannot be disputed in as much as, both the injured have sustained injuries. In our considered opinion, the trial Court is justified in believing the evidence of P.Ws.7 and 8 for coming into the conclusion.
11. The case of the prosecution is further supported by the medical evidence. Exs.P5 and P6 are the wound certificates of injured P.Ws.7 and 8 respectively. They are issued by Doctor-Chandravathi (P.W.6) after the treatment. P.W.6 has explained about the injuries sustained by both P.Ws.7 and 8 in detail. P.W.8 was subjected to X-ray examination, which showed that he had sustained fracture of nasal bone. The deposition of P.W.6 12 i.e., the Doctor fully supports the case of the prosecution as well as the wound certificates Exs.P5 and P6. Except the suggestion that the weapons were not sent for rendering opinion before the Doctor, no other important suggestion is made by the defence. Merely because the weapons were not sent to Doctor for rendering the opinion, the case of the prosecution does not become weak solely on the said ground. In the matter on hand, the weapons are identified by both the injured before the Court. The weapons were seized immediately after the incident under panchanama Ex.P4.
12. Having regard to the totality of the facts and circumstances, we are of the opinion that the trial Court is justified in concluding that the accused is liable to be convicted for the offences punishable under Sections 324 and 326 of IPC. It is not a fit case to convict the accused for the offence punishable under Section 307 of IPC in as much as, there was no intention on the part of the accused 13 to commit the murder of any of the injured. It is the case of the prosecution that the accused came to the house of P.Ws.7 and 8 armed with knife and another weapon. P.Ws.7 and 8 were unarmed. If really, the accused had got any intention to commit the murder, he would not have left the place without harming P.Ws.7 and 8 with still more serious injuries. It appears, the quarrel has taken place between the accused on one side and P.Ws.7 and 8 on the other and in the said quarrel, accused has pushed and assaulted both the injured. During the process, P.W.8 has sustained fracture of nasal bone. Therefore, the trial Court has aptly convicted the accused for the offence under Section 326 of IPC.
13. We have heard the learned Advocates on both sides on the question of sentence.
14. We find that the trial Court ought to have imposed higher amount of fine on the accused so as to 14 compensate the injured P.W.8 reasonably. So also, since we find that the accused has left the place after a brief stint of quarrel and as we find that the accused did not have any intention to commit more harm to P.Ws.7 and 8, the sentence of imprisonment needs to be reduced to six months as against one year awarded by the trial Court. Hence under the facts and circumstances, we deem it proper to reduce the sentence of imprisonment and to enhance the sentence of fine in the matter on hand. Accordingly, the following order is made:
(i) The judgment and order of conviction passed by the trial Court convicting the accused for the offences punishable under Sections 324 and 326 of IPC stands confirmed, so also, the judgment and order of acquittal acquitting the accused for the offence punishable under Section 307 of IPC also stands confirmed.
(ii) The accused is sentenced to undergo imprisonment for a period of six months and to pay fine of Rs.50,000/- for the 15 offence punishable under Section 326 of IPC. The fine amount shall be paid by the accused within four months from this day before the trial Court. In case of recovery of fine, Rs.40,000/- shall be paid to injured P.W.8 namely, Mohammed Mansoor as compensation under Section 357 of Cr.P.C.
and the remaining amount of Rs.10,000/-
shall vest with the state. In default of payment of fine, the accused shall undergo further imprisonment for a period of six months.
(iii) The accused is entitled to get the benefit of set off as provided under Section 428 of Cr.P.C. in respect of the period of custody, if any, undergone by him.
(iv) The sentence of imprisonment and fine as imposed by the trial Court for the offence punishable under Section 324 of IPC continues to remain.
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(v) Sentences in respect of both the offences shall run concurrently. Bail bond stands cancelled accordingly.
With the aforementioned modification of the sentence, appeals are disposed of.
Sd/-
JUDGE Sd/-
JUDGE bkp