Karnataka High Court
Sri Mahesh vs The State Of Karnataka on 13 June, 2019
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13TH DAY OF JUNE 2019
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL APPEAL NO.2635/2010
BETWEEN:
SRI MAHESH
S/O MALLAPPA RAYAREDDY
AGE 28 YEARS, OCC:AGRICULTURE
R/O TALAKAL, TAL:YELABURGA
DIST:KOPPAL
... APPELLANT
(BY SRI. P G MOGALI & S H MITTALKOD, ADVOCATES)
AND:
THE STATE OF KARNATAKA
THROUGH PSI, KUKANUR POLICE STATION
NOW REP BY HCGP
... RESPONDENT
(BY SRI. RAJA RAGHAVENDRA NAIK, HCGP)
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THIS APPEAL IS FILED U/S 374(2) OF CR.P.C. SEEKING
TO SET ASIDE THE JUDGMENT AND ORDER OF SENTENCE
DATED 16.04.2010 PASSED BY THE FAST TRACK COURT NO.II,
KOPPAL, IN S.C.NO.2/2009 FOR THE OFFENCE PUNISHABLE
UNDER SECTION 326 OF IPC AND ACQUIT THE APPELLANT.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGEMENT
This appeal has been filed by the appellant/accused No.1 being aggrieved by the
judgment of conviction and order of sentence passed by the Court of Fast Track - II, Koppal in S.C.No.2/2009 dated 16.04.2010.
2. I have heard the learned counsel for the appellant/accused No.1 and also the learned HCGP for respondent-State.
3. The genesis of the case of the prosecution is that, towards the northern side of National Highway No.63 at Talakal Village, there is a way leading to Veerapur village. By the side of the said way, complainant and accused were having their lands. In respect of the right of preemption there was some dispute. On 21.07.2007 at about 9.00 am, when the complainant and other witnesses went to their land, at that time they found that the accused had put up the :3: thorny bush on the said way. They removed the same and entered their land. At that time, accused came there and picked up a quarrel with them. The accused used filthy language and assaulted CW3 with their hands and asked them why they have removed the thorny bush which was put on the fencing. By that time, CWs.1, 3 and 4 told that in future they will not remove the thorny fencing. Accused No.1 again used filthy language and told that he will not leave them and went towards his house. At that time, he also told that if anybody removed the said fence, he will kill them. Thereafter he brought an axe from his house and was waiting by the side of the road. Thereafter at about 11.00 am CW2 came there and he tried to enter the land by removing the thorny fencing. At that time, accused No.1 assaulted him with an axe on his head and left side of the ear. Immediately he lost conscious and fell down. The blood was oozing from the injuries. By that time, C.Ws.1, 3 and 4, who were working in the :4: said land, came there and tried to pacify the quarrel. In the meanwhile, accused No.1 assaulted C.W.3 with the same axe upon his left hand and he sustained fracture to his hand. Thereafter, he again assaulted C.W.3 and thereby C.W.3 sustained grievous injuries. The accused threw the axe at C.Ws.1 and 4, and told that if they did not leave the place he would finish them and thereby the accused gave threat to their lives and other witnesses. Accused No.2, who is the mother of accused No.1 provoked accused No.1 to assault C.W.2 and C.W.3. The accused thought that C.W.2 might have died. Hence, they went away from that place and thereafter accused No.1 kept the said axe in a ditch of his land. They brought the injured to the Hospital at Kukanoor and then they were shifted to KIMS Hospital, Hubli.. On the basis of the said complaint, a case was registered.
4. After investigation, a chargesheet was filed. The committal Court took cognizance of the matter and :5: committed the case to the Sessions Court by following the procedure under Section 207 of Cr.P.C. The Sessions Court took cognizance, secured the presence of the accused and after hearing the learned Public Prosecutor and the learned counsel for the accused, prepared the charge and read it over to the accused. The accused pleaded not guilty and claimed to be tried. As such, charge was framed.
5. In order to prove its case, the prosecution examined 15 witnesses as P.Ws.1 to 15 and got marked Exs.P.1 to P.21 and marked the material objects as M.Os.1 to 6. The statement of C.W.2 was got marked as Ex.D.1. Thereafter, the statement of accused was recorded under Section 313 of Cr.P.C. by putting all the incriminating materials against them. The accused denied the said incriminating material. They did not lead any defence evidence. After hearing the arguments, the Court below acquitted accused No.2 and convicted accused No.1 for the offence punishable under Section :6: 326 IPC and accordingly, sentenced accused No.1 to undergo simple imprisonment for a period of five years and to pay fine of Rs.5,000/- and, in default of payment of fine, to undergo simple imprisonment for a period of one year. Challenging the correctness and legality of the said judgment of conviction and order of sentence, the appellant/accused is before this Court.
6. It is the submission of the learned counsel for the appellant/accused that there was a dispute with regard to fencing; though accused No.1 had put the fence, the injured witness, along with other witness, came and removed the said fencing; and it is the injured witnesses who were the aggressors. It is his further submission that, in order to protect the property, the appellant/accused exercised the right of defence and as such, the order of the Trial Court convicting the appellant/accused No.1 for the offence punishable under Section 326 of IPC is not sustainable in law. The Trial Court came to the conclusion that the :7: appellant/accused No.1 was not having any intention, only because C.Ws.2 and 4 sustained injuries and because the axe was used by the accused, and as such, the appellant/accused No.1 has been convicted for the offence under Section 326 of IPC, but no evidence has been led by the prosecution to make out a case against the accused for the offence punishable under Section 326 of IPC. It is his further submission that the accused though assaulted with an axe, he never used the sharp edge of it; he used only the blunt side of the axe despite he being attacked by the other side. Though they have suffered injuries, the accused has not used the sharp edge of the weapon. The accused was not having any intention to commit the murder and he was also not having any motive. He further submitted that the fight took place because of the sudden provocation as the injured and other witnesses were trying to enter by removing the fence, then under such circumstances, at the most, the Court below if at all has believed the :8: evidence, the provisions of Section 335 of IPC would attract and the appellant/accused No.1 could have been convicted by taking a lenient view and should have awarded compensation adequately, to be paid by the accused. It is his further submission that the case of the prosecution is that appellant/accused No.1, on the occurrence of the incident at the first instance, said that he would go to house and bring an axe and would take the life if the fencing is removed and by saying so he went to the house and brought an axe, but as could be seen from the evidence of P.W.1 and other witnesses, no such case has been made out by the prosecution and there is contradiction in this regard. The evidence produced by the prosecution goes to show that in the fight, accused No.1 took the axe which was lying there and assaulted P.Ws.2 and 4, which clearly goes to show that the appellant/accused No.1 had no pre-plan or that he was having any intention to cause the death of any of the persons. He further submitted that if the :9: entire case is taken into consideration, a serious doubt would arise with regard to the case of the prosecution. The genesis of the complaint is one thing and the evidence which has been led by the prosecution is another and under such circumstances, the benefit of doubt ought to have been given to the appellant/accused No.1. He further submitted that P.W.2 has specifically deposed, during the course of examination that there was one blow that also clearly go to show that accused No.1 was not having any intention. Alternatively, he submitted that if at all this Court comes to the conclusion that there is material as against the appellant/accused No.1, the accused may be convicted under Section 335 of the IPC and a lenient view may be taken and a lesser punishment may be imposed and adequate compensation be awarded. On these grounds, he prays to set aside the judgment of conviction and order of sentence.
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7. Per contra, learned Government Pleader vehemently argued and contended that the ingredients of Section 326 of IPC clearly goes to show that the weapons which have been used is a material fact. Even the evidence of the doctor-P.W.6 and the injury certificate clearly go to show that P.Ws.2 and 4 suffered with grievous injuries though not deep-cut injuries. It is the way in which the axe has been used that is going to cause injuries. It is his further submission that the accused, with an intention to take away their life, has assaulted, but when the witnesses tried to escape the blunt portion of the axe has been hit to the head. It is his further submission that the Trial Court, after considering the evidence and material placed on record, has come to a right conclusion that there is no evidence, but however, a case has been made out under Section 326 of IPC and has rightly come to the conclusion. There are no good grounds to interfere with the : 11 : impugned judgment and order. On these grounds, he prayed to dismiss the appeal.
8. I have carefully and cautiously considered the submissions made by the learned counsel for the parties and perused the records.
9. On giving my thoughtful consideration to the evidence of the prosecution, it is seen that the prosecution, in order to establish its case, got examined 15 witnesses. P.W.1 is the complainant and he is an eyewitness to the said incident. P.Ws.2 and 4 are the injured witnesses; they have categorically stated about the act which has been committed by accused No.1. P.W.3 is the aunt of the complainant; she is also an eyewitness to the incident; she has reiterated the evidence of P.Ws.1, 2 and 4. P.W.5 is the scribe who wrote the complaint; in his evidence, he has deposed about the complaint given in this particular behalf. P.W.6 is the doctor, who treated P.Ws.2 and 4 and has : 12 : issued wound certificates as per Exs.P.4 and P.5; he also opined that the injuries suffered by P.Ws.2 and 4 are grievous in nature and they can be caused if a person is assaulted with an axe. P.W.7 is an independent witness and in his evidence he has deposed that he was not present at the time of the alleged incident. P.W.8 is the panch witness to spot mahazar. P.W.9 is the panch witness to recovery mahazar of the axe at the instance of the accused. These two witnesses (P.Ws.8 & 9) have not supported the case of the prosecution and they have been treated as hostile; even nothing has been elicited during the cross-examination to support the case of prosecution P.W.10 is also a panch witness to the spot mahazar. He has supported the case. P.W.11 is another eye witness. He has also not supported the case of the prosecution and he has been treated as hostile. P.W.12 is the Police Constable, who is the carrier of the FIR to the jurisdictional Court. P.W.13 is the constable who : 13 : carried the seized article to FSL for chemical examination. P.W.14 the village accountant who issued RTC extract of the land which is in dispute. P.W.15 is the Investigating Officer who investigated the case and filed chargesheet as against the accused.
10. On a close reading of the evidence which has been produced before the Court below there is consistency and corrboration insofar as the alleged incident is concerned. Even that they have categorically deposed before the Court that it is accused No.1 who took the axe and assaulted on the back side of P.W.2 and other parties and also P.W.4 and other parts. But, as could be seen from the evidence of the doctor-P.W.6, he has deposed that he found a lacerated wound upon the head of P.W.2 and also on the neck and so also he deposed regarding injury suffered by P.W.4. The doctor has opined that the injuries suffered are grievous in nature and the said injuries may be caused with a weapon like axe. This evidence of P.W.6 corroborates : 14 : with the evidence of injured witnesses. Then under such circumstances, it can be safely held that there is sufficient evidence to show that it is accused No.1 who caused the said injuries to P.Ws.2 and 4 with the axe.
11. The only point that remains for consideration is whether the Court below is justified in convicting the appellant/accused No.1 for the offence punishable under Section 326.
12. As could be seen from the records and the judgment of the Trial Court, the Trial Court after considering the evidence produced before it has come to the conclusion that the prosecution has failed to establish the fact that the appellant/accused No.1 was having an intention or knowledge that such act of him is likely to cause death and it has come to the conclusion that there is no proof regarding knowledge or intention and as such the provisions of Section 307 of IPC is not attracted and it has come to the conclusion : 15 : that the provisions of Section 326 are attracted. Against the said finding of the Court below, admittedly, the State has not preferred any appeal, this point of the Trial Court is said to have concluded. Under the circumstances, the only contention which has been raised by the learned counsel for the appellant/accused No.1 is that the Trial Court ought to have convicted the accused under Section 335 of IPC instead of Section 326 of IPC. In order to attract the provisions of Section 335 of IPC the accused must have voluntarily caused grievous hurt and such grievous hurt must have been caused on a grave and sudden provocation and the accused must not intend to cause grievous hurt or knew it likely to cause grievous hurt to anyone on account of provocation. By going through the evidence which has been produced it clearly goes to show that P.W.1, in his evidence, has categorically stated before the Court below that there was a scuffle and at that time, accused No.1 took the axe which was lying there and he : 16 : assaulted. That itself goes to show that the appellant/accused No.1 was not having any intention and the alleged incident has taken place due to sudden and grave provocation. As could be seen from the records, though it is alleged that the accused has assaulted with the axe, it is seen that though the accused was armed with a sharp edged axe, he used only the blunt side of it though he could have used the sharp edged side of the axe. This fact and circumstance clearly goes to show that the because of the sudden provocation, he has used the said axe that too the blunt side. Under such circumstances, the provisions of Section 326 of IPC are not attracted. At the most the provisions of Section 335 of IPC is attracted and the accused is liable to be convicted under the said Section instead of Section 326 of IPC. In the light of the discussion held by me above the judgment of conviction and order of sentence passed by the Trial Court requires to be interfered with and it should be suitably modified. : 17 :
13. I have heard learned counsel for the appellant and the learned High Court Government Pleader for the respondent-State regarding the sentence to be imposed on the appellant/accused No.1.
14. It is the submission of learned counsel for the appellant/accused No.1 that the appellant/accused No.1 is neither a terrorist nor he is having any criminal antecedents; he is a farmer and the sole earning member in the family. In that light, he submits that a lenient view may be taken to impose minimum sentence to compensate the injured. But, the learned High Court Government Pleader submits that even if the accused is punished under Section 335 of IPC, as per Section 335 of IPC the minimum sentence is four years and fine and he submits that a maximum punishment may be imposed.
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15. I have carefully and cautiously considered the submission made by learned counsel for the parties on imposition of sentence, and perused the records.
16. It is well settled proposition of law laid down by the Hon'ble Apex Court that whenever the Court convicts the accused while considering the sentence there must be balance between the offence committed and the punishment imposed. The Court has to strike a balance between the reformative theory as well as the punitive theory. It is also observed by the Hon'ble Apex Court that the sentence should be appropriate and befitting to the crime and no fly bite sentence be made when prosecution proves its case. Keeping in view the above said facts and circumstances, I feel that if the appellant/accused No.1 is convicted for two years and if a fine of Rs.2,000/- is imposed, and also if compensation of Rs.20,000/- is awarded, then under such circumstances, it is going to meet the ends of justice.
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17. In the light of the discussion held by me above, the appeal is allowed in part. The judgment of conviction and order of sentence passed by the Court of Fast Track Court-II, Koppal, in S.C. No.2/2009 dated 16.04.2010 is hereby modified as stated above i.e., the appellant/accused No.1 is hereby convicted and sentenced to undergo simple imprisonment for a period of two years and to pay fine of Rs.2,000/- and, in default to pay fine, to undergo simple imprisonment for a period of six months. The appellant/accused No.1 shall deposit Rs.20,000/- as compensation.
Out of the compensation amount of Rs.20,000/-, a sum of Rs.10,000/- each be paid to P.Ws.2 and 4, who suffered the injuries.
Sd/-
JUDGE Gab/Kms