Karnataka High Court
Prabhakara vs State Of Karnataka on 12 March, 2024
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NC: 2024:KHC:10281
CRL.A No. 860 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.860 OF 2014
BETWEEN:
1. PRABHAKARA
S/O LATE NANJEGOWDA
AGED ABOUT 47 YEARS
2. DILEEPA @ MANJUNATHA
S/O PRAPHAKARA
AGED ABOUT 20 YEARS
3. P.B. HARISHA @ SATHISHA
S/O LATE BOREGOWDA
AGED ABOUT 28 YEARS
APPELLANT NOS.1 TO 3 ARE
RESIDENTS OF PITTE KOPPALU VILLAGE
NAGAMANGALA TALUK-576 163.
...APPELLANTS
(BY SRI A.H. BHAGAVAN, ADVOCATE)
Digitally signed by
MOUNESHWARAPPA
AND:
NAGARATHNA
Location: HIGH
COURT OF
KARNATAKA
STATE OF KARNATAKA
BY BINDIGANAVILE POLICE STATION
MANDYA DISTRICT
REPRESENTED BY
THE STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
BANGALORE-560 001.
...RESPONDENT
(BY SMT. SOWMYA R., H.C.G.P.)
***
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NC: 2024:KHC:10281
CRL.A No. 860 of 2014
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
DATED:09.10.2014 PASSED BY THE I ADDITIONAL DISTRICT AND
SESSIONS JUDGE, MANDYA IN S.C.NO.56/2013-CONVICTING THE
APPELLANTS/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTIONS 447, 504, 341, 323, 307, 324, 506 READ WITH 34 OF
IPC.
THIS CRIMINAL APPEAL IS COMING ON FOR HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri. A.H.Bhagavan, learned counsel for the appellants and Smt. Soumya R., learned HCGP for respondent- State.
2. The appellants have filed this appeal under Section 374 (2) of Cr.P.C. praying to set aside the judgment of conviction and order on sentence passed by I Addl. District and Sessions Judge, Mandya in S.C.No.56/2013 dated 09.10.2014, wherein the Sessions Court convicted accused Nos.1 to 3 for the offences punishable under Sections 447, 504, 341, 323, 307, 324 and 506 read with 34 of I.P.C.
3. The case of the prosecution in brief is as under:-
On 30.06.2012, PW.1 Manjegowda along with his brother's son Mahesha (PW.4) had been to his coconut garden in order to -3- NC: 2024:KHC:10281 CRL.A No. 860 of 2014 pluck the coconuts at Pittekoppalu village in Sy.No.98/P-P1 in between 1.30 p.m. and 2.00 p.m., they saw accused Nos.1 to 3 who were loading sand in a small stream, which is abutting to the bund of the coconut garden of the complainant and hence, PW.1 objected accused No.1 in drawing sand from their bund as it may cause damage to their coconut garden, consequent to which, accused Nos.1 to 3 trespassed to the land of PW.1 with an intention to eliminate him, took quarrel, abused in filthy language and intentionally insulted and provoked his breach of peace, while accused Nos.2 and 3 caught hold of PW.1 tightly and squeezed his hand, accused No.1 brought an axe from his tractor and tried to assault on his head and when PW.1 bent his neck, the blow fell on the left eyebrow and accused No.1 also bit the left hand finger and again tried to assault PW.1 with a sickle in order to eliminate him. When PW-1 was struggling to escape from the clutches of accused, PW.4 (Mahesha) came to his help, intervened and pacified the quarrel. Thereafter, accused Nos.1 to 3 threatened PW.1 by showing a sickle and made criminal intimidation to eliminate him. Later, PW.1 was shifted to Adichunchanagiri hospital for treatment, where he -4- NC: 2024:KHC:10281 CRL.A No. 860 of 2014 lodged the complaint as per Ex.P1. On the basis of compliant, Ex.P7- FIR was registered. This led to the investigation.
4. After filing of the charge sheet, the trial Court took cognizance, framed charges against the accused for the offences punishable under Sections 447, 341, 504, 323, 324, 307 and 506 r/w 34 IPC.
5. The prosecution in order to prove its case examined in all 10 witnesses as PW.1 to PW.10 and got marked 13 documents as per Ex.P-1 to P13 and marked 2 material objects as per MOs.1 and 2. For the defence, Ex.D-1 and D-2 photographs were marked. At the conclusion of the trial, the trial Court recorded the statements of the accused persons under Section 313 of Cr.P.C. The case of accused Nos.1 to 3 was of total denial.
6. Assessing the evidence of PW.1 to PW.10, the trial Court convicted accused Nos.1 to 3 for the aforesaid offences and imposed sentence as under.
Accused No.1 to 3 hereby sentenced to pay a fine of Rs.500/- each in default S.I. for 10 days of the offence punishable U/Sec. 447 R/w 34 of I.P.C. and they are further sentenced to pay a fine of Rs.2,000/- each in default S.I. for Three months of the offence -5- NC: 2024:KHC:10281 CRL.A No. 860 of 2014 punishable U/Sec. 504 R/w 34 of I.P.C. and they are further sentenced to pay a fine of Rs.500/- each in default S.I. for 10 days of the offence punishable U/Sec. 341 R/w 34 of I.P.C. and they are further sentenced to pay a fine Rs.1,000/- each in default S.I. for one month of the offence punishable U/Sec. 323 R/w 34 of I.P.C. and they are sentenced to undergo simple Imprisonment for five years and to pay a fine of Rs. 10,000/- each in default for six months of the offence punishable U/Sec. 307 R/w 34 of I.P.C. and they are further sentenced to under go simple Imprisonment of one year and to pay a fine of Rs.5,000/- each in default S.I. for four months of the offence punishable U/Sec. 324 R/w 34 of I.P.C. and they are further sentenced to pay a fine of Rs.5,000/- each in default S.I. for Four months of the offence punishable U/Sec. 506 R/w 34 of I.P.C.
7. Aggrieved by the judgment of conviction and order on sentence passed by the trial Court, accused Nos.1 to 3 preferred this appeal.
8. Learned counsel for the appellants contended that the judgment of conviction and sentence passed by the trial Court is not in accordance with law. The trial Court based on the testimonies of interested witnesses viz., PW.1 to PW.4 wrongly convicted accused Nos.1 to 3. As per the contents of Ex.P1 complaint, at the time of the incident, PW.4 (Mahesha) came to the spot immediately and presence of PWs.2 and 3 was not mentioned. But, PW.2 and PW.3 have stated that, they have -6- NC: 2024:KHC:10281 CRL.A No. 860 of 2014 seen incident and pacified the quarrel. In fact, their evidence is contrary to the contents of the complaint. Therefore, PW.2 and PW.3 are not eye witnesses to the incident and they are planted witnesses. It is contended that in the history given by the Doctor, the injury sustained by PW.1 is shown to have been sustained by an axe, but the prosecution witnesses referred the weapon as sickle. Therefore, there is lot of discrepancy in mentioning the name of weapon as axe and sickle, but the trial Court has not considered this vital aspect. Further, there was no motive for the accused persons to commit the alleged offence. It is contended that, PWs.1 and 2 were removing the sand from small stream illegally, which was objected to by the accused persons and perhaps this was the reason for PW.1 to file a false case against accused Nos.1 to 3. Further, there is contradiction with regard to oral evidence of PW.1 and medical evidence as to bite mark on the finger of PW.1. As per the contents of Ex.P1 complaint and oral evidence of PW.1, there was bite mark on left hand of PW.1, but as per medical evidence, a small bite mark was caused on the middle ring and little finger, but the trial Court has not noticed and considered the material contradiction in that regard. It is contended that -7- NC: 2024:KHC:10281 CRL.A No. 860 of 2014 accused Nos.2 and 3 were not at all present at the scene of offence and the prosecution witnesses have stated about their individual overt acts, hence, in the absence of any material particulars, accused Nos.2 and 3 cannot be convicted and the trial Court has not considered the oral and documentary evidence on record. It is contented that injury No.1 suffered by PW.1 is mere a lacerated wound and it is simple in nature. If accused No.1 had intention of causing death of PW.1, there would have been more number of injuries and severe injuries. Further, the incident took place on 30.06.2014 at 2.30 p.m. and the complaint was lodged on 01.07.2014 at 1.45 p.m. Hence, there is enormous and unexplained delay in lodging the compliant, which renders the entire prosecution case doubtful. On all these grounds, learned counsel prayed to allow the appeal.
9. Per-contra, learned High Court Government Pleader appearing for respondent-State contended that injured witness-PW.1 has categorically stated about accused Nos.1 to 3, who were allegedly drawing sand near the land of PW.1, hence, PW.1 objected accused Nos.1 to 3 who in turn, trespassed into the land of PW.1, took quarrel with him, -8- NC: 2024:KHC:10281 CRL.A No. 860 of 2014 intentionally insulted him and provoked his breach of peace and accused Nos.2 and 3 caught hold the hands of PW.1 and accused No.1 assaulted on his head i.e., near eyebrow, thereby attempted to commit murder of PW.1. PWs-2, 3 and PW.4 are eye witnesses to the incident and they have categorically stated about the role attributed by accused Nos.1 to 3. The oral evidence of PW.1 to PW.4 is corroborated by the medical evidence and PW.7 Doctor has categorically stated that he examined PW.1 and found three injuries, particularly, injury on left eyebrow. PW.9 Dr. Chandrashekaraiah, Adichunchanagiri Hospital, also stated that in his presence, PW.1 gave statement as per Ex.P1. Therefore, the prosecution witnesses have categorically stated about the role of accused Nos.1 to 3. There is ample evidence against the accused persons. Therefore, the trial Court has rightly convicted accused Nos.1 to 3 for the aforesaid offences and hence, no interference is called for. For all these reasons, she prayed to dismiss the appeal.
10. From the perusal of the material on record, PW.1 has stated that on 30.06.2012, he along with his brother's son Mahesha (PW.4) had been to his coconut garden in order to pluck the coconuts at Pittekoppalu village in Sy.No.98/P-P1 in -9- NC: 2024:KHC:10281 CRL.A No. 860 of 2014 between 1.30 p.m. and 2.00 p.m., they saw accused Nos.1 to 3 who were loading sand in a small stream, which is abutting to the bund of the coconut garden of the complainant and hence, PW.1 objected accused No.1 in drawing sand from their bund as it may cause damage to their coconut garden, consequent to which, accused Nos.1 to 3 trespassed to the land of PW.1 with an intention to eliminate him, took quarrel, abused in filthy language and intentionally insulted and provoked his breach of peace, while accused Nos.2 and 3 caught hold of PW.1 tightly and squeezed his hand, accused No.1 brought an axe from his tractor and tried to assault on his head and when PW.1 bent his neck, the blow fell on the left eyebrow and accused No.1 also bit the left hand finger and again tried to assault PW.1 with a sickle in order to eliminate him. When PW-1 was struggling to escape from the clutches of accused, PW.4 (Mahesha) came to his help, intervened and pacified the quarrel. Thereafter, accused Nos.1 to 3 threatened PW.1 by showing a sickle and made criminal intimidation to eliminate him. Thereafter, PW.4 ran away to the neighbouring farm house and secured PW.2 and PW.3 and one Manjegowda, who came and snatched the sickle from the hand of accused-1 and again the accused
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NC: 2024:KHC:10281 CRL.A No. 860 of 2014 persons made criminal intimidation to eliminate PW.1. Later, PW.1 was shifted to Adichunchanagiri hospital for treatment, where he lodged the compliant as per Ex.P1. On the basis of compliant, Ex.P7- FIR was registered. This led to the investigation. PW.1 has undergone intensive cross-examination by the learned counsel for the accused. In the cross- examination, nothing has been elicited to disbelieve his evidence. PW.1 admits that he has no animosity with the accused persons.
11. The prosecution in order to corroborate the oral testimony of PW.1, relied upon the testimonies of PW.2 and PW.3, who are the neighbouring land owners have stated that, on 30.06.2012, when they were working in their garden land, they heard sound of quarrel from the land of PW.1, thus, immediately they came to the land of PW.1, at that time, accused Nos.2 and 3 were holding PW.1. The accused persons abused PW.1 and made criminal intimidation to eliminate him. Further, the prosecution examined PW.4 Mahesha, who is none other than brother's son of PW.1. In his evidence, he has stated that on 30.06.2012, he had been to the garden land of PW.1, where he saw the accused persons digging sand in halla by side
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NC: 2024:KHC:10281 CRL.A No. 860 of 2014 of bund of coconut garden and loading it to the tractor. When PW.1 objected to dig the sand attached to his garden land, the accused persons abused him, accused Nos.2 and 3 caught hold of PW.1, accused No.1 brought a sickle and tried to assault him and when PW.4 intervened, accused No.1 showed a sickle and threatened him also.
12. It is significant to note that conviction can be based on the sole testimony of eye witness provided the credibility of the presence is not shaken by any adverse inference and the witness is truthful. There is no rule of law that the evidence of injured must be corroborated by other independent evidence and injured cannot be said to be an interested witness. In the instant case, PW.1 is the complainant and injured witness. He has categorically stated that accused No.1 abused him in filthy language, accused Nos.2 and 3 caught hold of his hands and accused No.1 tried to assault him with a sickle on his head, but, when he bent his neck, the blow fell on his left eyebrow, thus, he sustained bleeding injuries. The evidence of PW.1 is corroborated by the oral testimony of PW.4. From the perusal of Ex.P1 complaint and the oral testimony of PW.1, it establishes that, at the time of the incident, PW.1 and PW.4
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NC: 2024:KHC:10281 CRL.A No. 860 of 2014 were present. PW.4 also stated that, he saw the incident, snatched the sickle from the hand of accused No.1. Hence, the evidence of PW.4 corroborates the evidence of PW.1 to the extent that accused No.1 assaulted PW.1 with a sickle on his left eyebrow. So far as the oral testimonies of PW.2 and PW.3 are concerned, as per the contents of Ex.P1 complaint, it appears that soon after the incident, PW.4 came to the spot and PW.1 informed PW.4, who in turn informed the owners of the neighbouring land i.e., PWs.2 and 3 about the incident. Therefore, PWs.2 and 3 cannot be treated as eye witnesses to the incident. If the evidence of PW.2 and PW.3 is believed as eye witnesses' account, the same would be in contradiction to the contents of Ex.P1-complaint.
13. In order to corroborate the oral testimonies of PW.1 and PW.4, the prosecution relied upon the testimony of PW.7 Dr.Karunakara. He has stated that on 30.06.2012, PW.1 was brought before him with a history of assault at 5.30 p.m., hence, he examined PW.1 and found (a) lacerated wound over the left eyebrow measuring 3 1/2 x 1/3 cms, (b) Bite mark over the middle ring and little finger measuring 0.5 x 0.5cms, 0.5 x 1/4cms, 0.5 x 1/3 cms, tenderness over left arm. As per the
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NC: 2024:KHC:10281 CRL.A No. 860 of 2014 opinion of Doctor, injuries mentioned in the wound certificate are simple in nature and injury No.1 could be caused by M.O.1- sickle.
14. So far as spot mahazar witnesses are concerned, PW.5 and PW.6 have turned hostile to the case of the prosecution.
14a. PW.8 Manjula is none other than wife of PW.1. She has stated that soon after the incident, she changed the clothes of PW.1 and shifted PW.1 to the hospital for treatment.
14b. PW.9 Dr. M.C.Chandrashekaraiah, in whose presence PW.10 recorded the statement of PW.1 as per Ex.P1.
14c. PW.10 Siddaraju, ASI, Bindiganavele police station, who recorded the statement of PW.1 and on the basis of the statement of PW.1 and complaint-Ex-P1, he registered the case in crime No.75/2012, sent FIR as per Ex.P7, visited the scene of offence, drew spot panchanama as per Ex-P2 and seized M.O.1-sickle, seized blood stained clothes of PW.1 under Ex.P3 seizure mahazar, recorded the statement of the witnesses, secured the accused, produced them before the Court and sent
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NC: 2024:KHC:10281 CRL.A No. 860 of 2014 the seized articles to FSL and upon completion of investigation, filed the charge sheet against the accused.
15. From the perusal of the above evidence, PW.1 and 4 in categorical terms have stated that accused No.1 assaulted PW.1 with sickle M.O.1 on his eyebrow and bite his left hand, but as per the medical evidence, there is bite mark over the middle ring and right hand little fingers. Hence, there is contradiction with regard to injuries sustained to PW.1, particularly on right hand fingers. There are no material contradictions in the testimonies of PW.1 and PW.4 as to accused No.1 voluntarily causing hurt to PW.1 with a sickle.
16. Further, PW.2 and 3 were cited as eye witnesses, but they are chance witnesses. They came to the scene of offence soon after the incident and they have stated that PW.1 sustained injury on his eyebrow and accused Nos.1 to 3 were at the spot. In order to corroborate their testimonies, the prosecution examined Ex.P7 Doctor and he has stated that on 30.06.2012, he treated PW.1 and noticed injury on eyebrow and bite mark on right hand fingers. Accordingly, he had issued wound certificate as per Ex.P4. From the perusal of the
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NC: 2024:KHC:10281 CRL.A No. 860 of 2014 evidence of PW.1 and PW.4, it appears that they have categorically stated about the assault made by accused No.1 on the left eyebrow with a sickle. There is clear and consistent evidence in the testimonies of PW.1 and PW.4 as to assault made by accused No.1 on PW.1.
17. So far as role attributed by accused Nos.2 and 3, none of the prosecution witnesses have stated that they assaulted PW.1. So far as intentional assault and criminal intimidation are concerned, PW.1 and PW.4 have made omnibus and general allegations that all the accused intentionally assaulted PW.1 and provoked his breach of peace and also made criminal intimidation to eliminate him.
18. Learned counsel for the appellants' submitted that the trial Court convicted accused Nos.1 to 3 for the offences under Sections 447, 504, 341, 323, 307, 324 and 506 IPC. However, learned counsel submits that the provision of Sections 307 and 324 IPC would not attract against any of the accused persons.
19. As per the case of the prosecution, accused Nos.2 and 3 caught hold of PW.1 at the time of incident and accused No.1 assaulted PW.1 with a sickle. Therefore, the ingredient of
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NC: 2024:KHC:10281 CRL.A No. 860 of 2014 Section 341 IPC would attract. Hence, the trial Court has rightly convicted and imposed fine of Rs.500/- each, in default simple imprisonment for 10 days of the offence punishable under section 341 IPC r/w section 34 IPC as against accused Nos.1, 2 and 3.
20. Considering the material/evidence on record, the Court noticed that PW.1 sustained injuries near his left eyebrow. As per the contents of Ex-P1 complaint, oral testimonies of PW.1 to PW.4, they establish that accused No.1 tried to assault with an axe of the head of PW.1 in order to eliminate him, but PW.1 bent his neck, thus the blow fell near the eyebrow of PW.1 and hence, he sustained injury on the eyebrow. Under such circumstances, the injury sustained by PW.1 is on a vital organ. Learned counsel for the accused submitted that said injury even will not attract Section 307 of I.P.C.
21. Section 307 of I.P.C. read as under:-
307. "Attempt to murder.--Whoever does any act with such intention or knowledge, and under such 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
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NC: 2024:KHC:10281 CRL.A No. 860 of 2014 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 is hereinbefore mentioned."
22. Considering the material/ evidence on record and the medical certificate and injuries sustained by PW.1, it cannot be said that there was no intention of accused No.1 to cause death of the complainant-PW.1. Therefore, as rightly observed by trial Court, the charge under Section 307 IPC has been rightly framed and the trial Court has rightly convicted accused No.1 for the offence under Section 307 of I.P.C.
23. So far as allegations made against accused Nos.2 and 3 are concerned, there is no clear, convincing and corroborative evidence against the accused persons as to attract Sections 447, 504, 341, 323, 324 and 506 of IPC. Even the injured PW.1 and eye witness-PW.4 have not stated about the role of accused Nos.2 and 3, except the fact that they caught hold of PW.1, they did not see anything. Hence, the judgment of conviction and sentence passed by the trial Court, particularly against accused Nos.2 and 3 is liable to set aside, except for the offence under Section 341 of IPC.
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NC: 2024:KHC:10281 CRL.A No. 860 of 2014
24. So far as 307 IPC is concerned, the trial Court convicted accused Nos.1 to 3 for 5 years. If three years imprisonment is imposed against accused No.1, then, it would meet the ends of justice. Considering the fact that accused No.1 is an agriculturalist by profession, having a family and as he is the first time offender and he has no bad antecedents, the appeal is liable to be allowed.
Hence, I pass the following:-
ORDER i. The appeal is allowed-in-part.
ii. The judgment of conviction and order of sentence dated 09.10.2014 passed by I Addl. District and Sessions Judge, Mandya in S.C.No.56/2013 is modified as under:-
a. Accused No.1 is convicted and sentenced for a period of three years for the offence under Section 307 of IPC.
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NC: 2024:KHC:10281 CRL.A No. 860 of 2014 b. So far as sentence passed in respect of offences punishable under Sections 447, 504, 323, 324 and 506 IPC as against accused No.1 is maintained.
c. So far as offence punishable under section 341 IPC, the fine imposed against accused Nos.2 and 3 is maintained.
d. Further, accused Nos.2 and 3 are acquitted of the all the offences punishable under Sections 447, 323, 506, 504, 307 and 324 IPC and they are convicted only for the offence under Section 341 IPC, as ordered by the trial Court.
e. Registry is directed to send back the trial Court records with a copy of this Judgment.
Sd/-
JUDGE MN List No.: 1 Sl No.: 30