Karnataka High Court
The State Of Karnataka vs Mohana D M on 8 February, 2023
Author: B.Veerappa
Bench: B.Veerappa
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CRL.A No. 1631 of 2016
C/W CRL.A No. 898 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF FEBRUARY, 2023
PRESENT
THE HON'BLE MR. JUSTICE B.VEERAPPA
AND
THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA
CRIMINAL APPEAL NO. 1631 OF 2016
C/W
CRIMINAL APPEAL NO. 898 OF 2016
CRL. A No.1631/2016
BETWEEN:
1. THE STATE OF KARNATAKA,
BY POLICE INSPECTOR,
SURATHKAL POLICE STATION,
REPRESENTED BY STATE
PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
Digitally signed by
USHA BENGALURU - 560 001.
NAGENAHALLI ...APPELLANT
SHANMUKHAPPA
Location: High (BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP)
Court of
Karnataka AND:
1. MOHANA D. M.,
S/O DEVA REDDY,
AGED ABOUT 29 YEARS,
R/AT NEAR VENKATESHWARA TEMPLE,
MORABA VILLAGE,
NAVALGUNDA TALUK-582208.
PRESENTLY R/AT KAIKAMBA,
KATIPALLA VILLAGE.
...RESPONDENT
(BY SRI. SATISH R GIRJI., ADVOCATE)
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CRL.A No. 1631 of 2016
C/W CRL.A No. 898 of 2016
THIS CRIMINAL APPEAL IS FILED UNDER SECTIONS
378(1) & (3) OF CR.P.C BY THE STATE PRAYING TO GRANT
LEAVE TO APPEAL AGAINST THE JUDGMENT OF CONVICTION
DATED 28.04.2016 AND ORDER OF SENTENCE DATED
29.04.2016 PASSED BY THE IV ADDITIONAL DISTRICT AND
SESSIONS JUDGE, DAKSHINA KANNADA, MANGALURU IN
S.C.NO.119/2013 - ACQUITTING THE ACCUSED/RESPONDENT
FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 326 AND
307 OF IPC.
CRL. A No.898/2016
BETWEEN:
1. MOHAN D. M.,
S/O DEVA REDDY,
AGED ABOUT 29 YEARS,
R/AT NEAR VENKATESHWARA TEMPLE,
MORABA VILLAGE,
NAVALGUNDA TALUK-582208.
PRESENTLY R/AT KAIKAMBA,
KATIPALLA VILLAGE.
...APPELLANT
(BY SRI. SATISH R GIRJI., ADVOCATE)
AND:
1. STATE BY SURATHKAL POLICE STATION,
SURATHKAL,
REPTD., BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU - 560 001.
...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374
OF CR.P.C BY THE APPELLANT PRAYING TO SET ASIDE THE
IMPUGNED JUDGMENT OF CONVICTION DATED 28.04.2016
AND ORDER OF SENTENCE DATED 29.04.2016 PASSED BY THE
IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, DAKSHINA
KANNADA, MANGALURU IN S.C.NO.119/2013 CONVICTING HIM
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CRL.A No. 1631 of 2016
C/W CRL.A No. 898 of 2016
FOR THE OFFENCE PUNISHABLE UNDER SECTION 324 OF IPC
AND ACQUIT HIM FOR THE SAID OFFENCE.
THESE CRIMINAL APPEALS COMING ON FOR HEARING,
THIS DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:
JUDGMENT
The State has filed criminal appeal No.1631/2016 against acquittal of accused for the offences punishable under Sections 326 and 307 of IPC., and the accused has filed Criminal Appeal No.898/2016 convicting him for the offence punishable under Section 324 of IPC and sentencing him to undergo simple imprisonment for one year.
2. Both these criminal appeals are filed by the State as well as the accused against the impugned judgment of conviction, dated 28.4.2016 and order of sentence, dated 29.4.2016 passed in Sessions Case No.119/2013 acquitting accused for the offences punishable under Sections 326 and 307 of IPC., and convicting him for the offence punishable under Section 324 of IPC and sentencing him to undergo simple imprisonment for one year by the learned IV Additional District and Sessions Judge, Dakshina Kannada, Mangaluru. -4- CRL.A No. 1631 of 2016 C/W CRL.A No. 898 of 2016
3. It is the case of the prosecution that the complainant P.W.1- Siddappa Hoogar was working as the Security Field Officer in Canon Detective and Security Services, M.R.P.L., at Bengaluru and the accused was working as Security Guard in their company. On 20.5.2013 at about 10.40 p.m. when the complainant was in the office at Kaikamba of Katipalla, at that time, the accused came and asked him for payment of his salary. Though the complainant agreed for payment of salary, the accused insisted the complainant to pay the salary at that moment only and due to delay in payment of the salary by the complainant, the accused threatened him with dire consequence and at once, stabbed the complainant's stomach on right side by using the deadly weapon i.e., knife marked as M.O.2 and caused grievous injury. Hence, he lodged a complaint before the Surathkal Police and based on the said complaint, the Sub-Inspector of Surathkal Police registered a case in Crime No.141/2013 against the accused for the offences punishable under Sections 326 and 307 of IPC and the accused was arrested on 21.5.2013. After completion of investigation, a charge sheet was filed before the JMFC-II, Mangaluru, who took cognizance of the said offences and -5- CRL.A No. 1631 of 2016 C/W CRL.A No. 898 of 2016 committed the matter to the Court of Sessions along with records.
4. The learned Sessions Judge secured the presence of the accused and framed the charge on 14th September, 2014 for the offences punishable under the provisions of Sections 326 and 307 of IPC and read over the same to the accused in the language known to him, who denied the same and pleaded not guilty and claimed to be tried.
5. In order to prove the case of the prosecution, the prosecution in all examined 9 witnesses and got marked Exs.P.1 to 13 and the documents Exs.P.1 to 13 and material objects - M.Os.1 and 2. After completion of the evidence of the prosecution witnesses, the statement of the accused as contemplated under the provisions of Section 313 Cr.P.C., was recorded and the accused though denied all the incriminating evidence appearing against him, has taken a defence to question No.20 that for non-payment of salary, there was strike and thereby, he has been falsely implicated.
6. The learned Sessions Judge after hearing both the parties framed the following two points for consideration: -6- CRL.A No. 1631 of 2016 C/W CRL.A No. 898 of 2016
"1. Whether the prosecution has establish beyond doubt that 20.05.2013 at 10.45p.m., when C.W.1 was in his Office at Kaikamba of Katipalla of Mangaluru, the accused came and asked the salary and though C.W.1 was agreed to pay the accused forced him to pay at that moment only and due to the revenge of delay for the payment the accused told him that he would kill him and at once the accused stabbed him on his left side by means of deadly weapon knife and caused grievous hurt to C.W.1 and thereby committed an offence punishable under Section 326 of IPC?
2. Whether the prosecution has establish beyond reasonable doubt that on the above said date, time and place, the accused assaulted C.W.1 with deadly weapon knife with such intention or knowledge and under such circumstances, by that act the accused caused the death of C.W.1 Siddappa Hugar and the accused would have been guilty of murder and thereby caused grievous hurt to C.W.1 and thereby committed an offence punishable under Section 307 of I.P.C.?"-7- CRL.A No. 1631 of 2016 C/W CRL.A No. 898 of 2016
7. Considering both oral and documentary evidence on record, the learned Sessions Judge recorded a finding that the prosecution has failed to prove beyond reasonable doubt that on 20.5.2013 at about 10.45 p.m. when P.W.1 was in his office at Kaikamba of Katipalla of Mangaluru, the accused came and asked his salary. Though P.W.1 agreed to pay, the accused forced him to pay at that moment only and due to the revenge for the delay in the payment, the accused threatened him with dire consequence and at once, stabbed him on his left side by means of deadly weapon - knife and caused grievous injury to P.W.1 and thereby holding that the commission of said offence was only out of frustration and as the injury was simple in nature, acquitted the accused holding that the accused cannot be held guilty for the offences punishable under the provisions of Sections 307 and 326 of IPC. But further held that there was sufficient material evidence against the accused to prove that the injury caused on P.W.1 was with dangerous weapon i.e., knife. Hence, convicted the accused for the lesser offence under the provisions of Section 324 of IPC. Hence, the State has filed criminal appeal No.1631/2016 against acquittal of the accused for the offences punishable under Sections 326 and -8- CRL.A No. 1631 of 2016 C/W CRL.A No. 898 of 2016 307 of IPC and accused has filed Criminal Appeal No.898/2016 against his conviction for the offence punishable under Section 324 of IPC and sentencing him to undergo simple imprisonment for one year.
8. We have heard the learned counsel for the parties.
9. Sri Satish R. Girji, learned Counsel for the appellant/accused in Criminal Appeal No.898/2016 would contend that the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge convicting the accused for the offence punishable under Section 324 of IPC., and sentencing him to undergo simple imprisonment for one year is erroneous and contrary to the material on record and hence, the same cannot be sustained and is liable to be set aside. He would further contend that the learned Sessions Judge has not taken into consideration the evidence of P.W.1 that he had taken treatment earlier and there was no specific case that the accused had stabbed the complainant. It is further contended that the injured P.W.1 after assault, at the first instance, had gone to the maternity hospital and it is the evidence of the doctor -P.W.5, who examined the injured, when -9- CRL.A No. 1631 of 2016 C/W CRL.A No. 898 of 2016 he was brought to the hospital, that he was conscious and the said version of P.W.5 does not corroborate with the evidence of P.W.1. Thereby, the injury over the head of the complainant was not grievous in nature.
10. The learned Counsel for the accused would further contend that since the complainant was Security Field Officer, he had to pay the salary to the accused and when the accused demanded the salary and as the injured refused to pay salary immediately, in the scuffle between them, a small injury has been caused to the complainant and absolutely there is no evidence to prove the intention or knowledge of the accused for committing the said act which would cause the death of the injured-complainant. The said aspect has not been taken into consideration by the learned Sessions Judge while passing the impugned judgment of conviction and order of sentence. He would further contend that when the learned Sessions Judge has come to the conclusion that the prosecution has failed to prove beyond reasonable doubt the involvement of the accused in causing grievous injury or attempt to murder as contemplated under the provisions of Section 326 or 307 of IPC., has acquitted him for the said offences and in the absence
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CRL.A No. 1631 of 2016C/W CRL.A No. 898 of 2016 of any charge framed for the offence punishable under Section 324 of IPC., the conviction of accused for the said offence is erroneous and cannot be sustained. As such, he rightly and fairly submits that reasonable fine may be imposed instead of sentencing the accused to undergo simple imprisonment for one year. The said statement is placed on record and accordingly, he sought to allow the criminal appeal filed by the accused and dismiss the criminal appeal filed by the State.
11. Per contra, Sri Vijayakumar Majage, learned Additional State Public Prosecutor for the State in Criminal Appeal No.1631/2016 would contend that the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge acquitting the accused for the offences punishable under the provisions of Sections 326 and 307 of IPC is contrary to the material on record and as such, is liable to be set aside. He would further contend that the learned Sessions Judge has failed to appreciate the evidence of the injured P.W.1 and the contents of Ex.P.1 in its proper perspective and thereby has erroneously acquitted the accused for the offences punishable under the provisions of Sections 326 and 307 of IPC which is liable to be set aside.
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CRL.A No. 1631 of 2016C/W CRL.A No. 898 of 2016
12. The learned Additional SPP would further contend that the learned Sessions Judge has not properly appreciated the evidence of P.W.2, who shifted the injured to the hospital and that of the mahazar witnesses. He further contended that the injured was working as Field Officer and accused was working as Security Guard and as there was delay in payment of salary, the accused stabbed the injured P.W.1 with a knife on the vital part of the body. Though the doctor P.W.5, who examined the injured, has opined that the injury was grievous in nature, the learned Sessions Judge ought to have convicted the accused for the offences punishable under the provisions of Sections 326 and 307 of IPC. He would further contend that when the accused has not offered proper explanation against the incriminating material appearing against him while recording his statement under Section 313 of Cr.P.C., the learned Sessions Judge has committed a grave error in acquitting the accused for the offences punishable under the provisions of Sections 326 and 307 of IPC and thereby sought to allow Criminal Appeal No.1631/2016 filed by the State and dismiss Criminal Appeal No.898/2016 filed by the accused.
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CRL.A No. 1631 of 2016C/W CRL.A No. 898 of 2016
13. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the following points would arise for our consideration:-
i) Whether the appellant/accused in Criminal Appeal No.898/2016 has made-out a case to interfere with the impugned judgment of conviction and order of sentence, convicting the accused and imposing sentence of Simple Imprisonment for one year for the offence punishable under Section 324 of IPC?
ii) Whether in Criminal Appeal No.1631/2019, the appellant/State has made-out a case to interfere with the impugned judgment of acquittal and order of sentence for the offence punishable under Section 326 and 307 of IPC?
14. We have given our anxious considerations to the arguments advanced by the learned counsel for the parties and perused the entire material including digital records carefully.
15. The sum and substance of the case of prosecution is that, as per complaint allegations, the complainant -Sri. Siddappa Hoogar along with family was residing in Benakanahalli Village, Indi Taluk, Bijapur District and he is
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CRL.A No. 1631 of 2016C/W CRL.A No. 898 of 2016 presently residing at Sreepathi Achar Building, Kaikama, Katipalla Village, Mangaluru Taluk. The Kenan Ditective and Security Service Company, Bengaluru has assigned him the Security Contract of MRPL Company of Mangaluru Branch and since two years he was also working as Security Field Officer therein. The accused- Mohan D.M. was also working from six months in MRPL Company of Mangaluru Branch as a Security Guard and the MRPL Company of Main Branch at Bengaluru was sending amount once in a month to the complainant (PW.1) for the purpose of disbursement of the salary to the Security Guards working under MRPL Company of Mangaluru Branch and accordingly he was disbursing the same to all the Security Guards. In the month of May 2013, the MRPL Company of Bengaluru Branch has sent Rs.2.00 Lakhs to the account of the complainant (PW.1) for the purpose of disbursement of salary to the Security Guards and out of that amount, he disbursed the salary to some Security Guards. But, the salary was not disbursed particularly to the accused and it was with-held by the complainant (PW.1) for the reasons best known to him. Actually, salary disbursement was also late in that month, as salary for the month of April 2013 was
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CRL.A No. 1631 of 2016C/W CRL.A No. 898 of 2016 disbursed in the month of May, 2013. In that context, the accused-D.M. Mohan, on 20.05.2013 at 10.45 pm., when the complainant was in the office at Kaikamba in Katipalla Village, Mangaluru, went there to enquire about the payment of salary to him. Then the complainant told that he will pay the salary to him on next day. At that time the security guards viz., Mr. Deepak Ravath and Bijay Darji were also present in the office. The complainant tried to convince and console the accused- Mohan, but he demanded for salary then and there itself and being frustrated by delay in payment of salary, the accused stabbed the complainant on his stomach with a knife asserting that he will kill the complainant. As a result, the complainant has sustained a bleeding injury and immediately he raised hue and cry. Then immediately, the accused-Mohan by throwing the knife used for commission of the offence at the spot ran away. Then other security guard by name Mehaboob shifted the injured complainant to the hospital in an autorikshaw to Mukka Sirnivasa Hospital and thereafter for better and higher treatment he was shifted to A.J. Hospital at Mangaluru. In respect of the above incident, the complainant has lodged a complaint before the jurisdictional police station.
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CRL.A No. 1631 of 2016C/W CRL.A No. 898 of 2016
16. After investigation, the charge sheet came to be filed and the case was committed to the District and Sessions Judge at Mangaluru, D.K. After appreciating the evidence on record, the learned Sessions Judge has convicted the accused- Mohan for the offence punishable under Section 324 of IPC and sentenced him to undergo S.I. for one year.
17. This Court being the First Appellate Court in order to re-appreciate the evidence of prosecution witnesses, it is relevant to consider the evidence of prosecution witnesses viz., PWs.1 to 9 and also the documents relied upon by the prosecution as per Exs. P1 to P13 and MOs. 1 & 2.
(i) PW.1 -Sri.Siddappa Hoogar is the
injured/complainant. He reiterated the averments
made in the complaint. He deposed that he was
residing along with family members in
Benakanahalli Village, Indi Taluk, Bijapur District and he is presently residing at SreepathiAchar Building, Kaikama, Katipalla Village, MangaluruTaluk. The KenanDitective and Security Service Company, Bengaluru was assigned with Security Contract at Mangaluru MRPL, since two years he was also working as Security Field Offcer. One Mohan D.M. was also working from six months
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CRL.A No. 1631 of 2016C/W CRL.A No. 898 of 2016 in MRPL as Security Guard and the said company in Bengaluru was sending amount once in a month to the complainant for the purpose of disbursing the salary to the Security Guards in MRPL and he was disbursing the same to them. In the month of May 2013 the company has sent Rs.2.00 Lakhs for salary disbursement lately and he disbursed the same to some Security Guards, as such, salary disbursement was also late. In that context, D.M. Mohan on 20.05.2013 at 10.45 pm., when the complainant was in the office at Kaikamba in Katipalla Village, Mangaluru, came and asked for salary. Then the complainant told that he will pay the salary to him on next day. At that time the security guards viz., Mr. Deepak Ravath and BijayDarji were also present in the office. The complainant tried to convince and console the accused- Mohan and at that time stating that he want the salary then itself and due to revenge of delay, he stabbed the complainant with a knife on stomach and said that he will kill the complainant and a result, the complainant has sustained a bleeding injury and immediately he raised hue and cry. Then immediately, the accused-Mohan by throwing the knife used for commission of the offence at the spot ran away. Immediately thereafter he was Then other security guard by name Mehaboob shifted to the hospital in an
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CRL.A No. 1631 of 2016C/W CRL.A No. 898 of 2016 autorikshaw to Mukka Sirnivasa Hospital and thereafter for better and higher treatment he was shifted to A.J. Hospital at Mangaluru. In respect of the above incident, the complainant has lodged a complaint before the jurisdictional police station.
(ii) PW.2- Mehaboob was also working as a security guard in MRPL in 2013. He deposed that time, PW.1- complainant was working as Security Incharge in 2013, Then, Kenan Security Company was providing securities to MRPL company at Mangaluru. Along with him, CW.2 and CW.5 were also working as security guards. He further deposed that the salary for Security Guards working under MRPL was sent to the complainant (PW.1) for disbursement and he was disbursing the salary to the all the security guards. He also deposed that totally there were 50 security guards working under MRPL. For 20 security guards the salary of April 2013 was disbursed in May 2013 i.e., on 19.05.2013 after the incident. But, the accused was not paid the salary of April month of 2013 and in that regard, on the date of incident, at 10.00 p.m., he shifted the complainant to the hospital. He deposed that, he has not seen as to who has caused stab injury to the complainant and when the police came for investigation, then he came to know about the incident. He stated that, he is a panch
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CRL.A No. 1631 of 2016C/W CRL.A No. 898 of 2016 witness to the spot-mahazar;Ex.P2 and seizure of property mahazar is marked as Ex.P3 and his signature is marked at Ex.P3(a). The shirt of the injured-complainant was also marked as MO.1 and he stated that he can identify that shirt. He also stated that, he did not see the knife (MO.2) stated to have been used for the offence, and thereby he was treated as hostile to the prosecution case.
(iii) PW.3-Jagaeesha is a PC No.2215 and he was working as a police constable in Surathkal Police Station and on 21.05.2011 he has carried the FIR in Crime No.143/11 to the court and the Complaint is marked at Ex.P1, and thereby he supported the case of prosecution.
(iv) PW.4- Sandeep is a PC No.636 and he deposed that he was working in Surathkal Police Station as a police constable. He further deposed that, on 13.06.2013 he carried 'A' and 'B' properties to the FSL. Mangaluru, and he handed over those properties to the FSL, and thereby he supported the case of prosecution.
(v) PW.5-Dr. Jayaprakash has stated that he has been working in A.J. Hospital from 14 years. On 21.05.2013 in early morning at 1.05 hours was brought to the office with a history of stab injury by one Mohan D.N. at the spot of Kaikamba in
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CRL.A No. 1631 of 2016C/W CRL.A No. 898 of 2016 Surathkal and he examined him and treated him. He deposed that the injured has suffered stab injury on right side of his stomach near shoulder measuring 18 Cm. and near midline 03x0.5 cm., which is an incise and fresh wound and by that the Omentam had come out and the said injury can be caused by a sharp pointed weapon. He further deposed that on 06.07.2013 through the Deputy Commissioner and Assistant Commissioner by name Fedariq Payas of Surathkal a sealed knife was brought and shown to him and sought opinion about as to whether by that weapon the injured-
complainant has suffered stab injury and he taken the photo of that weapon and gave an opinion that the injury suffered by the complainant can be caused by that weapon (MO.2) and he issued a wound certificate which was marked as Ex.P6 and his was marked at Ex.P6(a) and report regarding weapon was marked as Ex.P1. He also deposed that the blood group of the complainant is 'O' Positive and the blood report is marked as Ex.P8. In the cross-examination he admitted that when the injured complainant has admitted to the hospital he was conscious and able to speak and in that case he admitted that MLC case has to be lodged and he denied that if any sharp edged weapon falls on him the stab injury would be caused and he also admitted that the alleged weapon-wife (MOs.) was
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CRL.A No. 1631 of 2016C/W CRL.A No. 898 of 2016 sealed by the police and he denied that, as per the request of the police he has issued the report as per Ex.P7, and thereby he supported the case of prosecution.
(vi) PW.6-Dr.Geethalakshmi, who deposed that on 13.06.2013 she examined the sealed articles ie., MOs. 1 & 2 and they were intact and it was tallying with the samples and when the said articles were subjected to Forensic Examination, she found one knife and one shirt with blood stains and the blood group was 'O' Positive and as the blood was not in sufficient quantity, she could not ascertain the original factor of the blood. She also deposed that, the FSL report was marked as Ex.P9 and her signature was marked as Ex.P9(a) and sample seal is marked as Ex.P10 and thereby she supported the case of prosecution.
(vii) PW.7-Kumareshwaran M., is the PSI of Surathkal Police Station and was working as Assistant Police Commissioner. He stated that on 21.05.2013 at 9.00 am he received an information from A.J. Hospital that a person by name Siddappa Hoogar was admitted in the hospital with a history of stab injuries and immediately he along with the ASI, Fedriq Payas visited the hospital and recorded the statement of the injured and came back to the police station and lodged FIR and sent the same to
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CRL.A No. 1631 of 2016C/W CRL.A No. 898 of 2016 the Court and FIR was marked at Ex.P11 and the his signature on it is marked as Ex.P11(a) and the complaint was marked as EX.P1 and the signature of witness Mehaboob was marked as EX.P1(b). He further deposed that the weapon used for commission of offence was seized under mahazar and got drawn a sketch of scene of offence which is marked as Ex.P12 and on the same day he arrested the accused and produced before the Court and also recorded the statement of witnesses viz., Mehaboob, Deepak Ravath and Vijay Darji and again visited the hospital and seized the blood- stained shirt of the injured and seized the same under a mahazar, which is marked as MO.2 and also collected the would certificate and the blood of the injured and sent the seized incriminating materials MOs.1 & 2 were sent to FSL for examination in a sealed cover and FSL report (Ex.P9) was obtained on 04.07.2013 and collected the opinion of the doctor which is marked as Ex.P7, and after completion of investigation he submitted the final report to the Court, and the statement of witnesses are marked as Ex.P4 and P5, and thereby this witness has supported the case of prosecution.
(viii) PW.8-Gangappa is the driver by occupation. He has stated that in 2013 he was staying in Kaikamba at Mangaluru and on instructions of Surathkal Police,
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CRL.A No. 1631 of 2016C/W CRL.A No. 898 of 2016 he has the spot mahazar on 21.05.2013 in a room. He deposed that the building belongs to one Ganapathi Achar at Kaikamba. The spot mahazar is marked at Ex.P2 and his signature on it is marked as Ex.P2(c). He deposed that he does not anything regarding the injured handing over the blood- stained shirt to the police and the police drawing mahazar in that regard. This witness has not supported the case of prosecution and thereby he was treated as hostile.
(ix) PW.9-Bijayadarji is a Security Guard working along with the injured complainant in MRPL. He was also working as Security Gard in Bangalore Agency and PW.1 was the Head and he was disbursing the salary received from Bengaluru Office, to all the security guards. He deposed that he does not about the avocation of the accused and he has not seen the accused stabbing and trying to kill the complainant and he has not taken the injured to the hospital and he has not given any statement before the police. Though he stated that he has signed Ex.P2, but he does not know the contends of Ex.P2 and his signature on Ex.P2 is marked as EX.P2(d), and thereby he was treated as hostile.
On the basis of the aforesaid evidence on record, the learned Sessions Judge has proceeded to convict the accused
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CRL.A No. 1631 of 2016C/W CRL.A No. 898 of 2016 for the offence punishable under Section 324 of IPC and acquitted him of the offences under Sections 326 and 307 of IPC.
18. On a careful perusal of the materials on record, on the basis of the complaint of PW.1 and police have registered a crime for the offences punishable under Sections 326 and 307 of IPC. But, After perusal of the evidence of PW.1 it is clear that he was the head of Security Guards and the he was disbursing the salary received from Bengaluru Office to all the Security Guards, including the accused . It is also not in dispute that the salary for the month of April 2013 was disbursed on 19.05.2013 to some of security guards. He did not pay the salary to the accused, who worked for the whole month. Therefore, naturally the accused being frustrated because of financial problem, has approached the complainant for disbursement of salary of the month of April 2013 and when the complainant tried to convince and console him stating that he will pay the salary as soon as he receives the money from Bengaluru Office. It is also clear that the complainant has received Rs.2.00 Lakhs from Bengaluru for disbursement of salary of the month of April 2013 to security guards in the
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CRL.A No. 1631 of 2016C/W CRL.A No. 898 of 2016 month of May 2013. He disbursed salary to some of security guards and due to insufficient amount, he could not disburse salary to some of security guards and the accused is one such person. In the statement the complainant (PW.1) has stated that, he was disbursing the salary to all the security guards and in that month he received the amount lately and only Rs.2.00 Lakhs was sent, he disbursed the salary to some of security guards only, and could not disburse salary to the accused- Mohan. In that context, on 20.05.2013 at 10.45 p.m., when he was in Kaikamba, came to his office and asked for salary. Then the complainant said that he will pay the salary to him on next day. But, the accused demanded for salary then and there itself. Then the other security guards by name Deepak Ravath and Bijai Darji were also present there and the complainant tried to convince and console the accused stating that he will pay the salary to him on next day. But, accused demanded for salary then and there itself and made an allegation that by not paying salary the complainant is troubling him and asserting that he will kill him, stabbed the complainant by a knife which he had brought, on the stomach of the complainant and as a result, the complainant sustained
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CRL.A No. 1631 of 2016C/W CRL.A No. 898 of 2016 bleeding injuries on his stomach and when the complainant and other witnesses raised hue and cry, the accused dropped the knife there itself and ran away and immediately one Mehaboob and other security guards shifted the complainant to the A.J. Hospital for treatment. It is clear from the statement of the complainant that for the reason of not paying the salary to the accused and on the ground that the complainant he always not disbursing the salary lately and not on time, the accused in vengeance, has stabbed him and tried to kill him. The complainant witnessed the incident and he sustained bleeding injuries.
19. On going through the evidence of witnesses, it is clear that there was no proper investigation conducted by the Investigating Officer regarding treatment taken by PW.1- Siddappa Hoogar in the hospital and neither MLC was registered nor the statement of complainant was recorded. Therefore, the Investigating Officer in a casual manner conducted investigation. There are no independent eye witnesses to the incident. In the cross-examination, the Investigating Officer has admitted that the complaint was written by ASI -Fedriq Payas and he being author of the
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CRL.A No. 1631 of 2016C/W CRL.A No. 898 of 2016 complaint, he has not signed the complaint and the Investigating Officer has not collected any document regarding the injured complainant taking first-aid treatment at Srinivasa Hospital and he has not recorded the statement of the owner of the Kaikamba Building where actually the accident has occurred and he has not collected any document regarding the complainant was running a office in the said building and statement of the witnesses of next residents of the said building where the alleged incident is said to have been taken. The statement of the owner of Kaikamba building by name Ganesh Devadgi who is residing nearly at a distance of three feet, has not taken. Therefore, there are not of discrepancies and contradictions in the evidence of PW.1 itself and therefore, solely on the basis of the evidence of PW.1 and without proper and corroborative evidence, the conviction of the accused in impermissible.
20. In order to constitute an attempt to murder, the ingredients of Section 307 of IPC are to be established. The careful reading of Section 307 of IPC makes it clear that, , as the said provision contemplates that, Whoever does any act with such intention or knowledge, and under such
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CRL.A No. 1631 of 2016C/W CRL.A No. 898 of 2016 circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life or to such punishment as mentioned under the provisions of Section 307 IPC". 'Attempt' means, endeavour to commit crime or unlawful act. In every crime, there are three stages,-
a) Intention,
b) Preparation and
c) Attempt.
In the 3rd stage of 'Attempt', the crime is complete. In the present case, according to prosecution, the 'Motive' is non- payment of salary. The evidence of PW.1 and others completely defeats that, when the salary was not paid for the month of April, till 19.05.2013, and on that date only salary to PW.2 was paid and salary was not paid to accused-Mohan. Therefore, PW.1, who is the salary disbursing authority has provoked the accused to enrage by not disbursing salary to him and his act made him to assault PW.1 with a knife by attempting to kill him. But, his act was not successful and
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CRL.A No. 1631 of 2016C/W CRL.A No. 898 of 2016 crime was not complete. But, the complainant has suffered two injuries and was hospitalized for 7 days. Therefore, the provisions of Section 307 of IPC are not attracted. The assault was with MO.2-Knife and wound certificate is at Ex.P7 and the Doctor opined that the injury is grievous in nature and it was caused by a sharp edged and pointed weapon. PW.5 -Doctor or the wound certificate does not depict that the injury suffered is likely to cause death of the complainant-PW.1. Though the injury was grievous in nature, as stated by the Doctor, the fact remains that, the injured was hospitalized only for a period of 7 days. Therefore, as rightly held by the learned Sessions Judge, the offence only attracts the provision of Section 324 and not 307 of IPC.
21. Further, if the ingredients of Section 307 is to be attracted, there must be an ill-intention or motive or knowledge of seriousness of such offence. In the instant case, the material on record clearly depicts that, the accused had no such intention to cause death of PW.1-Complainant and he had any knowledge the his act would likely to cause death. Because, the accused went to the office on 20.05.2013 around 10.40 p.m., then PW.1 was present in the offence, and he
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CRL.A No. 1631 of 2016C/W CRL.A No. 898 of 2016 requested PW.1 to pay salary. If his the office timings is from 5.00 a.m. to 8.00 p.m. and the incident has occurred around 10.40 p.m.. It is not forthcoming, as to why PW.1 was in the office at 10.40 p.m., and accused was also not knowing that PW.1 will be in the office at 10.40 p.m., as such he had no intention to cause any injury to PW.1 which is likely cause death of PW.1. Taking into consideration the factors that, type of weapon used for commission of offence and the part of body chosen to commit the offence and the nature of injury inflicted are to be taken into consideration for determination of 'Intention'.
22. On analisation of evidence of eye-witnesses and the injured/complainant, it is clear that PW.1 was in the offence and at about 10.40 p.m., on 20.05.2013, the accused came there to enquire regarding delay in payment of salary and however, PW.1 tried to convince him stating that he will pay the salary on next day, and the accused stabbed PW.1 with a knife. The said circumstance clearly depicts that, at the place and time of incident no body was present except the accused and PW.1 and after stab, when the complainant raised hue and cry, the accused ran away by throwing the knife there itself.
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CRL.A No. 1631 of 2016C/W CRL.A No. 898 of 2016 From this, it can be gathered that, in frustration of non- payment of salary by PW.1 and accused committed the offence and if had any intention to kill PW.1, he would not have ran away from the spot, without accomplishing his act, which prima facie disclose that, accused had no intention or motive to kill PW.1 and in frustration of delay in payment of salary, he committed the said act. Further, there are no eyewitnesses to the incident to corroborate the evidence of PW.1.
23. On careful perusal of the evidence of PW.5-Dr. Jayaprakash, he issued wound certificate as per Ex.P6 and it clearly depicts that, PW.1 suffered Incised penetrating wound, 3cmx0.5cmxcavity deep ( on approximation- 3.2 cm in length, slightly obliquely from above down wards from inner to outer over right side of the abdomen, 38 cm below the shoulder, and 10cm away from midline, exposing he protruded omentum through the wound. PW.5 further certifies that the operation for exploratory laparotomy and repair was done by Dr. Ranjith Shetty on 21.05.2013 and he opined that, Injury No.1 is grievous in nature, fresh and caused by sharp cutting pointed weapon. Considering the opinion of PW.5, though his opinion gains some weight and value, while adjudicating criminology
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CRL.A No. 1631 of 2016C/W CRL.A No. 898 of 2016 the court should apply its mind and test, which will fortify the ingredients of Section 324 of IPC. Only on the basis of wound certificate and in absence of any material on record, the Court cannot come to the conclusion. Though the charge was made by the prosecution under Section 326 of IPC, as this Court has already recorded the finding while considering the provision of Section 307 of IPC that there is no other medical record except Ex.P6 (Wound Certificate) and only on the basis of opinion of the Doctor that the injury is grievous in nature, will not substitute the same and in order to determined whether the injury is grievous in nature and then essential ingredients of provision of Section 320 of IPC to be taken into consideration. Section 320 of IPC reads as follows:-
320. Grievous hurt.--The following kinds of hurt only are designated as "grievous":--
(First) -- Emasculation.
(Secondly) -- Permanent privation of the sight
of either eye.
(Thirdly) -- Permanent privation of the
hearing of either ear,
(Fourthly) -- Privation of any member or joint.
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CRL.A No. 1631 of 2016
C/W CRL.A No. 898 of 2016
(Fifthly) -- Destruction or permanent
impairing of the powers of any
member or joint.
(Sixthly) -- Permanent disfiguration of the
head or face.
(Seventhly) -- Fracture or dislocation of a bone
or tooth.
(Eighthly) -- 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.
The grievous injury as defined under Section 320 must be directly proved and Clause (8) of the said provision has no exception and it is a general rule of law and judicial statute must be construed strictly. The wound certificate of complainant-PW.1 at Ex.P6 clearly depicts that the complainant was admitted to the hospital in the intervening night of 20.05.2013 and 21.05.2013 and he took treatment for 7 days as inpatient and there is no material evidence to show that PW.1 has taken any further treatment or he suffered any pain and agony for more than 20 days or as specified in Clause (8) of Section 320 of IPC. Even the Investigating Officer has not produced any case sheet of any other hospital or examined
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any other evidence other than PW.5, before the Court in that regard. This shows that PW.1 has not taken any treatment in any other hospital or by other Doctor. Further, as per the evidence of the complainant-P.1 and the Doctor-PW.5 who treated PW.1, it is clear that the grievous injury suffered by the complainant was not likely to cause immediate death and admittedly PW.5 has opined that, at the time of admission of PW.1 in the hospital he was very much conscious and as such, there was no danger to the life of victim and even there was no evidence to show that the life of PW.1 was in danger. Therefore, this Court is of the opinion that the injury was grievous one, it was not in the nature of causing immediate death of victim. Therefore, the offence would not attract the ingredients of Section 326 of IPC.
24. The material on record clearly depicts that, the salary to the accused was not paid within the stipulated period and as on 19.05.2013 there was 20 days delay in payment and salary of PW.2 was paid, but salary of PW.1 was not paid by the complainant even on request. The accused has raised a defence against question No.20 while recording statement of accused under Section 313 of Cr.P.C., that merely because he
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CRL.A No. 1631 of 2016C/W CRL.A No. 898 of 2016 had participated in the strike, the company colluding with PW.1 has not paid salary to him and filed a false case against him. So, the accused taking part in the strike against the company does not in any way affect PW.1. Both PW.1 and accused are the employees working as security guards in the same company and PW.1 also being an employee working as a security guard in the same company could not have denied salary to the accused in particular. As already stated above, the Investigating Officer has conducted investigation in a very casual manner. It is well-established law that the accused cannot be acquitted solely on the ground of defective investigation. No doubt, the testimony of PW.1 is not sufficient to determine the intention on the part of accused to kill him. On careful perusal of the evidence of PW.1 and the allegations made in Ex.P1 and on over all reading of entire evidence of prosecution witnesses, it is clear that, when salary was not paid to him, the accused ought to have adopted the legal methods to get the salary from he Company. Instead of that, out of frustration, the accused attacked complainant-PW.1 and assaulted him by a knife (MO.2) and caused bleeding injury, which would endanger his life. Under these
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CRL.A No. 1631 of 2016C/W CRL.A No. 898 of 2016 circumstances, the accused is liable to be convicted for the offence punishable under Section 324 of IPC. Therefore, the learned Sessions Judge has not committed any error in convicting the accused under Section 324 of IPC.
25. The provisions of Section 324 of IPC reads as under:
"324. Voluntarily causing hurt by dangerous weapons or means.--Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
(i) Thereby the statute contemplates that, if the material evidence proves the offence under the provisions of Section 324 of IPC, the discretion is left to the Court to impose
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CRL.A No. 1631 of 2016C/W CRL.A No. 898 of 2016 punishment of imprisonment of either description for a term which may extend to three years, or with fine, or with both. In the present case, the learned Sessions Judge has convicted the accused for the offence punishable under Section 324 of IPC only with Simple Imprisonment for a period of One year. The learned Sessions Judge, as per the provision contemplated under Section 324 of IPC might have imposed punishment by his discretion.
(ii) However, in the peculiar facts and circumstances case, considering that, without any intention or move and out of frustration the accused has attacked the complainant-PW.1, only for the reason of not paying salary for the month of April, though there was delay in payment and also denying payment of salary specifically for him, by PW.1. Therefore, it is clear that offence has taken place out of frustration and not with an ill-intention or motive. As such, we are of the opinion that, as rightly held by the learned Sessions Judge, the accused is convicted for the offence punishable under Section 324 of IPC and the sentence of imprisonment is to be modified by imposing sentence of fine instead of Simple Imprisonment for one year. Accordingly, Point No.2 under consideration is
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CRL.A No. 1631 of 2016C/W CRL.A No. 898 of 2016 answered in negative in respect of Criminal Appeal No.1631/2016 holding that the State has not made-out any grounds for interfering impugned judgment and order of acquittal of accused for the offence under Sections 326 and 307 of IPC.
26. In view of the above, we proceed to pass the following:-
ORDER I. i) Criminal Appeal No.898/2016 filed by the accused-Mohan D.M., is allowed- in-part.
ii) The impugned judgment of conviction
and order of sentence dated
28.04.2016 passed by IV Additional
District and Sessions Judge, D.K.,
Mangaluru, convicting the accused and
sentencing him to undergo simple
imprisonment for one year for the
offence under Section 324 of IPC, is
modified.
iii) The respondent/accused-Mohan D.M. is
hereby convicted for the offence
punishable under Section 324 of IPC
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CRL.A No. 1631 of 2016
C/W CRL.A No. 898 of 2016
with sentence of payment of fine of
Rs.10,000/- before Sessions Court. In
default, he shall undergo S.I. for a
period of three months.
II) i) Criminal Appeal No.1631/2016
filed by the State is dismissed.
ii) The impugned judgment of acquittal
28.04.2016 passed by the learned IV
Additional District and Sessions Judge, D.K., Mangaluru, in SC. No.119/2013 for the offences punishable under Sections 326 and 307 of IPC, is hereby confirmed.
Sd/-
JUDGE Sd/-
JUDGE Paragraph Nos. 1 to 12 ..Nsu 13 to end ..KGR*