Karnataka High Court
Shiva @ Shivanna vs State By K R Nagar Police on 14 February, 2025
Author: V Srishananda
Bench: V Srishananda
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NC: 2025:KHC:6757
CRL.A No. 691 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL APPEAL NO. 691 OF 2012 (C-)
BETWEEN:
1. SHIVA @ SHIVANNA
S/O LATE SOSIGOWDA
AGED ABOUT 49 YEARS
2. SHIVARAJU
S/O KARIGOWDA @ PAPANNA
AGED ABOUT 42 YEARS
3. KRISHNA
S/O NAGEGOWDA
AGED ABOUT 44 YEARS
4. KUNTA @ MAHADEVA
S/O MARIGOWDA
AGED ABOUT 39 YEARS
Digitally 5. JAYANNA
signed by S/O LATE NAGEGOWDA
MALATESH
AGED ABOUT 42 YEARS
KC
Location: 6. VIJAY KUMAR
HIGH
S/O NAGEGOWDA
COURT OF
KARNATAKA AGED ABOUT 40 YEARS
7. MAYANNA
S/O KARIGOWDA @ PAPANNA
AGED ABOUT 42 YEARS
8. K.N.BASAVARAJU
S/O LATE NAGEGOWDA
AGED ABOUT 56 YEARS
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CRL.A No. 691 of 2012
9. KEMPARAJ @ KEMPARAMU
S/O KARIGOWDA
AGED ABOUT 40 YEARS
10. NAGARAJU @ BATTA
S/O SILLEGOWDA
AGED ABOUT 44 YEARS
11. K.M.SRINIVAS
S/O LATE MAYANNA @ PAPANNA
AGED ABOUT 44 YEARS
12. C.BASAVARAJ
S/O SILLEGOWDA
AGED ABOUT 40 YEARS
13. NAGEGOWDA@ NAGARAJU
S/O LATE JAVAREGOWDA
AGED ABOUT 50 YEARS
ALL ARE R/AT KAMENAHALLI VILLAGE
K.R.NAGAR TALUK
...APPELLANTS
(BY SRI. N.KUMAR, ADVOCATE)
AND:
STATE BY K.R.NAGAR POLICE
K.R.NAGAR
DISTRICT: MYSORE
...RESPONDENT
(BY SRI.CHANNAPPA ERAPPA, HCGP)
THIS CRL.A. FILED U/S.374(2) CR.P.C., PRAYING TO
SET-ASIDE THE CONVICTION AND SENTENCE
DATED:25.06.2012 PASSED BY THE SESSIONS JUDGE, FTC-III,
MYSORE IN S.C.NO.95/2008-CONVICTING THE
APPELLANTS/ACCUSED FOR THE OFFENCE P/U/S 143 R/W 149,
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CRL.A No. 691 of 2012
144 R/W 149,147 R/W 149,148 R/W 149, 326 R/W 149, 324
R/W 149, 323 R/W 149 AND 427 R/W 149 OF IPC.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL JUDGMENT
Heard learned counsel Sri.N.Kumar, learned counsel for the appellants and Sri.Channappa Erappa, learned High Court Government Pleader for respondent. 2. Appellants are accused Nos.1 to 7 and 11 to 13 who have suffered an order of conviction in S.C.No.95/2008 dated 25.06.2012 on the file of Sessions Judge Fast Track Court-III, Mysore and sentenced as under:
A1 to A13 shall undergo rigorous imprisonment for a period of 2 months for the offence punishable under Section 143 r/w 149 of I.P.C. with fine of Rs.1,000/- each, in default of payment of fine, they shah undergo imprisonment for a period of 10 days. A1 to A13 shall undergo rigorous imprisonment of 4 months for the offence punishable U/s 144 r/w 149 of I.P.C., with fine of Rs.2,000/- each, in default of payment of fine, they shall undergo Imprisonment for a period of 20 days.
A1 to A13 shall undergo rigorous imprisonment of 6 months for the offence punishable U/s 147 r/w 149 -4- NC: 2025:KHC:6757 CRL.A No. 691 of 2012 of IPC with fine of Rs. 3,000/- each, in default of payment of fine, they shall undergo imprisonment for a period of 30 days.
A1 to A13 shall undergo rigorous imprisonment of 6 months for the offence punishable U/s 148 r/w 149 of IPC with fine of Rs.3,000/- each, in default of payment of fine, they shall undergo imprisonment for a period of 30 days.
A1 to A13 shall undergo rigorous imprisonment of 3 months for the offence punishable U/s 323 r/w 149 of IPC with fine of Rs.1,000/- each, in default of payment of fine, they shall undergo imprisonment for a period of 10 days.
A1 to A13 shall undergo rigorous imprisonment of 6 months for the offence punishable U/s 324 r/w 149 of IPC with fine of Rs.2,000/- each, in default of payment of fine, they shall undergo Imprisonment for a period of 20 days.
A1 to A13 shall undergo rigorous imprisonment for a period of 4 years for the offence punishable U/s 326 r/w Sec.149 of I.P.C. and fine of Rs.3,000/- each, in default of payment of fine, they shall undergo imprisonment for a period of 30 days.
A1 to A13 shall undergo rigorous imprisonment for a period of 3 months and pay a fine of Rs. 4,000/- each for the offence punishable U/s 427 R/w Sec.149 of IPC in default of payment of fine, they shall undergo imprisonment for a period of 40 days.
Accused Nos.1 to 13 shall suffer the sentence concurrently.
Accused Nos.1 to 13 are entitled for set off of judicial custody period.
In case of payment of fine by the accused persons, PW1 to PW7 are entitled for a sum of Rs.5,000/- each as compensation U/s 357 of Cr.P.C.
PW3-Yashwantha is entitled for a sum of Rs.65,000/- towards the damages caused to their house.-5-
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3. Facts in the nutshell for disposal of the appeal are as under:
3.1. One Suresha S/o K.T. Kemparaju of Kamenahalli Village, K.R.Nagara Taluk lodged an oral complaint at about 10.30 pm., on 24.01.2007 which was reduced it to writing by the K.R.Nagar Police vide Ex.P1. Allegations found in the complaint reveal that there was a Grama sabha in his village on 24.01.2007 and his senior uncle by name K.T. Shanthappa had also participated in the Grama sabha. Further, Shanthappa said to have urged to grant the Ashraya Yojana houses to the poor and needy persons of the village. There was a uproar in the sabha and on account of the same, there was a commotion and members who were assembled in the Grama sabha got disbursed.
3.2. At about 7.30 pm., on the same day, accused No.8-K.N.Basavaraju along with his henchmen came in a group armed with deadly weapons and called Shanthappa -6- NC: 2025:KHC:6757 CRL.A No. 691 of 2012 out of his house and picked up the quarrel. They abused him as to why he should raise such issues in the Grama sabha. When Shanthappa tried to convince said Basavaraju, Basavaraju got enraged and provoked his followers to take away the life of Shanthappa. On hearing such provocation from Basavaraju, remaining accused persons started assaulting Shanthappa mercilessly. Among them accused No.4-Kunta @ Mahadeva gave a first injury on the chest of Shanthappa. He also assaulted Shanthappa with a stone on his chest. Accused No.2-Shiva @ Shivanna assaulted Shanthappa with an iron rod on the head of Shanthappa. Accused No.5-Jayanna assaulted Shanthappa on the shoulder with stone. Accused No.11-K.M. Srinivasa said to have kicked on the private part of Shanthappa and proclaimed that he should die. Yashwantha, Kalpana, Manjunatha, Kalingamma, Prasanna Kumar tried to rescue Shanthappa from the clutches of the accused group. The accused group also attacked them with clubs and choppers. As a result, the persons who have come to -7- NC: 2025:KHC:6757 CRL.A No. 691 of 2012 rescue Shanthappa also got injured and PW2-Kemparaju sustained fracture injury.
3.3. Ultimately the quarrel was pacified by Ashok, Cariyappa and other villagers. Immediately thereafter, Suresha who is the son of K.T. Kemparaju, visited the police station and lodged complaint vide Ex.P1. After registering the case, police thoroughly investigated the matter and filed the charge sheet inter alia arrested the accused persons.
4. On receipt of charge sheet, learned Trial Magistrate committed the case to the District Court, Mysore. Learned Principal District Judge made over the file to the Fast Track Judge.
5. Presence of the accused was secured before the Sessions Court and charges were framed. Appellants and other accused persons pleaded not guilty and therefore, trial was held.-8-
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6. In order to bring home the guilt of the appellants, prosecution in all examined fifteen witnesses. Among them PW.1 is the complainant, PW.2 to 10 are the injured witnesses. Dr. Akhila and Dr. H. Ramachandra who have examined the injured persons have issued the wound certificate vide Ex.P5 to 13 were examined as PW.12 and 13 and remaining witnesses are the investigation agency. Prosecution in all placed on record 17 documents which were exhibited and marked as Ex.P.1 to 17 comprising of complaint, spot mahazar, seizure mahazar, wound certificates, FIR, spot sketch and serology report.
7. When the accused were arrested and taken to the custody, based on the voluntary statement given by the accused, weapons used in the incident were also seized which were marked as MO.1 to 17 such as long, two choppers, three clubs, eight stones, blood stain mud, sample mud, cloths worn by the injured persons with blood stain were also seized.
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8. On conclusion of recording of the evidence, learned Trial Judge recorded the accused statement as is contemplated under Section 313 of Cr.P.C., wherein appellants and other accused persons have denied all the incriminatory materials. They did not place their version on record especially materials in the alleged counter case.
9. Thereafter, learned Trial Judge heard the parties and on cumulative consideration of oral and documentary evidence placed on record, by judgment dated 25.06.2012, convicted the appellants and sentenced as referred to supra.
10. Being aggrieved by the same, appellants are before this Court, in this appeal.
11. During the pendency of the appeal, appellant Nos.8 to 10 died and therefore, appeal against them stands dismissed as abated.
12. Sri.N.Kumar, learned counsel for the appellants reiterating the grounds urged in the appeal memorandum
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NC: 2025:KHC:6757 CRL.A No. 691 of 2012 vehemently contended that conviction of the appellants for the offence punishable under Section 326 of IPC, needs a relook in the absence of cogent and convincing evidence placed on record.
13. He would further contend that mere opinion of Doctor who examined K.T.Kemparaju and issuing the wound certificate vide Ex.P.11 would not be sufficient enough to conclude that the appellants have committed an offence under Section 326 of IPC and therefore, sought for allowing the appeal.
14. Insofar as offence under Section 143, 144, 147, 148, 323, 324 read with Section 149 of IPC is concerned, Sri.N.Kumar, learned counsel would contend that in the grama sabha that was organized on 24.01.2007, without any reason whatsoever, K.T.Shanthappa raised objection with regard to the proceedings of the grama sabha demanding allotment of Ashraya Yojana houses to the needy persons.
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15. As such, there was an uproar in the grama sabha resulting in a confusion among other members who have participated in the grama sabha. K.T.Shanthappa went to the extent of questioning the authority of the elected grama panchayat members which ultimately resulted in grama sabha being abandoned and members who had participated in the sabha got disbursed. Therefore, in the group clash, intention of the appellants to commit the alleged crime cannot be attributed to the appellants alone more so, having regard to the fact that there was a counter case registered.
16. He would also impress upon this Court with vehemence that in a matter of this nature, when the prosecution is unable to place material evidence on record to establish the genesis of the crime, appellants alone could not have been convicted especially when the counter case stood acquitted. Therefore, he sought for allowing the appeal.
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17. Alternatively, Sri.N.Kumar, learned counsel would contend that incident has occurred in the year 2007 and all the appellants have now grown up in their age and are in a responsible positions in their personal life. At this distance of time, if they are directed to join the prison, dependants of the appellants would be put to untold hardship. Therefore, sought for scaling out the offence from 326 to 324 IPC and custody period of 27 days already undergone by the appellants may be treated as period of imprisonment by enhancing the fine amount reasonably.
18. He also brought to the notice of this Court that already appellant Nos.8 to 10 having died and other appellants are also suffering from old age ailments, this Court may sympathetically consider their case and pass suitable orders.
19. Per contra, Sri.Channappa Erappa, learned High Court Government Pleader supports the impugned judgment.
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20. He contended that in the case on hand, nine persons are injured and out of the nine persons, P.W.2 - K.T.Kemparaju sustained grievous injury as per the wound certificate which is marked at Ex.P.11.
21. To invite the attention of this Court as to the seized material objects and marked before the Court as MO.1 to 17 comprising of long, two choppers, three clubs and eight stones shows that each one of the appellants were not only present at the time of incident but they have actively participated in the incident in assaulting initially K.T.Shanthappa who raised objection in the grama sabha and assaulted the kith and kin of K.T.Shanthappa who came to rescue the K.T.Shanthappa from the clutches of appellants. Therefore, prosecution is successful in establishing necessary ingredients to attract the aforesaid offences and thus, sought for dismissal of the appeal.
22. Insofar as alternate submission is concerned, learned High Court Government Pleader would contend that if any leniency is shown to the appellants, it would not
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NC: 2025:KHC:6757 CRL.A No. 691 of 2012 only result in sending a wrong message to the society but also would encourage similarly placed perpetrators of the crime and thus, sought for dismissal of the appeal in toto.
23. Having heard the parties in detail, this Court perused the material on record meticulously.
24. On such perusal of the material on record, following points would arise for consideration:
1. Whether the material evidence placed on record by the prosecution would be sufficient enough to maintain the conviction of the appellants for the offences punishable under Section 143, 144, 147, 148, 149, 326, 324, 323 and 427 read with Section 149 of IPC?
2. Whether the appellants make out a case of legal infirmity or perversity in the finding of the guilt recorded by the learned Trial Judge insofar as the aforesaid offences are concerned?
3. Whether sentence needs modification?
4. What order?
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NC: 2025:KHC:6757 CRL.A No. 691 of 2012 REG.POINT Nos.1 AND 2:
25. In the case on hand, very fact of filing a counter case against the complainant party by the accused party shows that both accused party and complainant party were present at the time of incident that is in the evening of 24.01.2007. Disruption of grama sabha has taken place earlier to the ugly incident inasmuch as K.T.Shanthappa raised certain question with regard to allotment of Ashraya Yojana houses to the needy persons.
26. In the incident, as many as nine persons got injured as per the wound certificate issued by the doctors who examined the injured persons and wound certificates were placed before the Court and exhibited as Exs.P.5 to
13. They would indicate that all the injured witnesses were present at the time of incident and soon after the incident, they were taken to the hospital and they have been treated. Doctors who issued the wound certificates are examined as P.W.12 and 13. Among the injured
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NC: 2025:KHC:6757 CRL.A No. 691 of 2012 witnesses, K.T.Shanthappa was not examined by the prosecution on account of his ill-health.
27. Among the injured witnesses, as per the wound certificate, it is K.T.Kemparaju - P.W.2, who has sustained grievous injuries inasmuch as doctor has noted fracture injury in the middle finger of the right hand.
28. What is a grievous hurt is defined in Section 320 of IPC which reads as under:
"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 eye Fourthly-Privation of any member or joint.
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 sever bodily pain, or unable to follow his ordinary pursuits."
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29. In order to prove the grievous injury, wound certificate and author of the wound certificate would not be sufficient especially in the absence of original x-ray film or radiological report. Oral testimony of the author of the wound certificate is in the form of opinion evidence. Taking note of non-production of the x-ray film or the radiological report only on the basis of the wound certificate of K.T.Kemparaju marked at Ex.P.11, this Court cannot accept the argument canvassed on behalf of the prosecution to sustain the conviction of the appellants for the offence under Section 326 of IPC.
30. View of this Court in this regard is supported by the principles of law enunciated in the case of State v. Sheenappa Gowda and Others reported in 2010 SCC ONLINE KAR 5294 relevant portion of the said judgment is culled out hereunder for ready reference:
"18. Therefore, the question for determination is limited to find out whether the said injury No. 2 is proved to be a grievous injury sustained by PW. 4. It is well settled that in criminal cases, the burden of
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NC: 2025:KHC:6757 CRL.A No. 691 of 2012 proving the guilt of the accused is always on the prosecution and that burden would not shift unless there is a presumption or defence as enumerated in the Penal Code, 1860 is taken by the accused. In this case, the defence taken by the accused is one of denial. It is clear from the evidence of PW. 1 that he has given description of injury on physical examination of PW. 4 and has come to the conclusion that there was fracture of the middle phalanx. It is well settled that when the prosecution alleges that grievous injury has been caused, it is necessary for the prosecution to prove the same beyond resonable doubt. The evidence of PW.1. would only show that there was injury as described in the wound certificate - Ex.P2. When PW. 1 suspected such fracture, he ought to have referred the injured - PW. 4 for taking X-ray to confirm his finding that there is fracture of middle phalanx. It is now well settled hat unless the prosecution produces the X-ray for confirmation of fracture opined by the Doctor on medical examination clinically it cannot be said that the accused have caused grievous injury of fracture. It is true that in the cross-examination of PW. 1, the learned Counsel appearing for the accused has not disputed the nature of injuries spoken to by PW.1. However, the same would not dispense with the production the X-ray by the prosecution to prove beyond reasonable doubt that the injured had sustained fracture of middle phalanx, which is an opinion given by PW. 1 Doctor only on clinical examination of PW. 4, the injured. Therefore, it is clear that the finding of the learned Sessions Judge holding that the prosecution has failed to prove that the
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NC: 2025:KHC:6757 CRL.A No. 691 of 2012 accused Nos. 1 to 3 and 5 have committed the offence punishable under Section 326 of I.P.C. and the offence committed by them falls within the ambit of Section 324 of I.P.C. is justified."
31. Thus, even though the prosecution is successful in establishing the incident, wherein the appellants have assaulted senior uncle of the complainant and other injured persons as referred to supra, conviction of the appellant for the offence punishable under Section 326 of IPC needs to be relooked especially while exercising the appellate powers.
32. It is settled principles of law and requires no emphasis that in an appeal filed on behalf of the State or by the accused, Appellate Court is having sufficient powers to reassess the factual aspects and the legal aspects. Powers of the Appellate Court is wide enough in this regard even to reappeciate the documentary evidence placed on record besides the oral testimony of the prosecution witnesses.
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33. In the case on hand, what prevented the prosecution to produce the original x-ray film or the radiological report to substantiate that injury No.7 in Ex.P.11 is pertaining to P.W.2 - K.T.Kemparaju is a question that remains unanswered.
34. Thus, on reappreciation of the material evidence on record, this Court is of the considered opinion that conviction of the appellants for the offence under Section 326 of IPC cannot be sustained and appellants are entitled for acquittal for the offence under Section 326 of IPC.
35. It is pertinent to note that acquittal of the accused for the offence under Section 307 of IPC has not been challenged by the State or the injured persons or defacto complainant and therefore, the said finding has become final.
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36. Taking note of above factual aspects of the case, especially of non-production of x-ray film or radiological report, this Court having acquitted the appellants for the offence under Section 326 of IPC, is of the considered opinion that material on record would be sufficient enough to sustain the conviction of the appellants for the remaining offences as per the impugned judgment.
37. In view of the foregoing discussion, point Nos.1 and 2 are answered partly in the affirmative. REG.POINT No.3:
38. Sri.N.Kumar, learned counsel for the appellants contended that appellants are in advanced age in their life and they have got families to maintain. Some of the appellants are also suffering from old age ailments. Therefore, he sought for modification of sentence by directing the custody period already undergone to be treated as period of imprisonment for the aforesaid proved
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NC: 2025:KHC:6757 CRL.A No. 691 of 2012 offences by enhancing the fine amount reasonably. Accordingly, point No.3 is answered partly in the affirmative.
REG.POINT No.4:
39. In view of the findings of this Court on point Nos.1 to 3 as above, following:
ORDER i. Criminal appeal is allowed in part.
ii. Appellants are acquitted for the offence punishable under Section 326 read with Section 149 of IPC and conviction of the appellants for the remaining offences as per the impugned judgment is maintained.
iii. Consequently, sentence is modified as under:
a. Custody period undergone by the appellants for the proved offences except for the offence under Section 326 of IPC, is to be
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NC: 2025:KHC:6757 CRL.A No. 691 of 2012 treated as period of imprisonment by enhancing the fine amount in respect all the other proved offences in a sum of Rs.20,000/- payable by each of the appellants on or before 15.03.2025 failing which they shall undergo simple imprisonment for a period of one year.
b. Out of the enhanced fine amount recovered, Kalingamma, Kalpana,
Manjunatha, Prasanna kumar are entitled for compensation in a sum of Rs.15,000/-
each (Rs.5,000/- ordered by the learned Trial Judge + Rs.10,000/- ordered by this Court) c. P.W.1 and 2 having been dead, they are not entitled for any compensation. Even though in the impugned judgment, P.W.1 and 2 are also ordered to get compensation in a sum of Rs.5,000/- each.
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NC: 2025:KHC:6757 CRL.A No. 691 of 2012 d. Payment of compensation as referred to supra, will be in addition to sum of Rs.65,000/- compensation ordered to Yashavantha in the impugned judgment.
e. Balance of fine amount is to be
appropriated towards the defraying
expenses of the State.
Office is directed to return the Trial Court Records with copy of this order for issue of modified conviction warrant.
Sd/-
(V SRISHANANDA) JUDGE BN,KAV List No.: 1 Sl No.: 35 Para 1 to 6 - BN Para 7 to 39 - KAV