Karnataka High Court
M.S. Kumar vs State Of Karnataka on 18 February, 2025
Author: V Srishananda
Bench: V Srishananda
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NC: 2025:KHC:7187
CRL.A No. 1076 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL APPEAL NO. 1076 OF 2013
BETWEEN:
M.S. KUMAR
S/O LATE SHIVAPPA,
AGED ABOUT 31 YEARS,
SALES EXECUTIVE,
RED CROSS GROUP OF COMPANY,
GANDHI BAZAR, SHIMOGA CITY,
NATIVE OF KAGATHUR VILLAGE,
CHANNAGIRI TALUK,
DIST. CHIKMAGALUR
...APPELLANT
(BY SRI. A.V. RAMAKRISHNA, ADVOCATE FOR
SRI. CHANDRASHEKAR N SANGOLLI, ADVOCATE)
AND:
Digitally STATE OF KARNATAKA
signed by BY RURAL POLICE,
MALATESH
KC CHIKMAGALUR,
REPRESENTED BY
Location:
HIGH STATE PUBLIC PROSECUTOR,
COURT OF HIGH COURT BUILDING,
KARNATAKA BANGALORE-560 001
...RESPONDENT
(BY SRI. CHANNAPPA ERAPPA, HCGP)
THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND
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NC: 2025:KHC:7187
CRL.A No. 1076 of 2013
SENTENCE DATED 03.10.2013 PASSED BY THE I ADDL. DIST.
AND S.J., CHIKMAGALUR IN S.C.NO.96/2009 - CONVICTING
THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S
448,504,307,324,427,436 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 Sri. A. V. Ramakrishna, learned counsel for the appellant and learned High Court Government Pleader for the State.
2. The appellant-accused by name Kumara who has been convicted in S.C.No.96/2009 vide judgment dated 03.10.2013, and sentenced by order dated 11.10.2013, for the offence punishable under Sections 448, 504, 307, 324, 427 and 436 of IPC, has questioned the validity of the judgment of conviction and order of sentence in this appeal. The appellant was ordered to undergo simple imprisonment for a period of four years for -3- NC: 2025:KHC:7187 CRL.A No. 1076 of 2013 the highest offence under Sections 307 and 436 of IPC and to pay fine of Rs.20,000/- with a default sentence.
3. Essential factual matrix required for the disposal of the appeal on merits are as under:
3.1. A complaint came to be lodged with Chikmagalur Rural Police by the complainant PW-1 Smt. Sharadamma contending that her daughter Mamatha was sought to be given in marriage to a distant relative by name Kumara (appellant herein).
3.2. However, there were some differences in the said alliance and there was a decision not to marry Mamatha to the appellant. Being enraged with the said decision, on 05.06.2009, at about 12.30 p.m., when complainant was in their house at Malledevarahalli Village, Chikmagalur, along with Mamatha, the accused trespassed into the house of the complainant through cattle shed and picked up quarrel with the complainant, abused her in filthy language and demanded that Mamatha should be given in marriage to him. So demanding, he suddenly -4- NC: 2025:KHC:7187 CRL.A No. 1076 of 2013 attacked the complainant with kathi (chopper) and stabbed on her ribs and caused injury. When Mamatha came to rescue the complainant, the accused attacked Mamatha also with the help of a knife and caused injuries.
3.3. At that juncture, Mamatha dragged her mother outside the house so as to save her life and being further enraged, the accused set fire to the house and destroyed the clothes, cash of Rs.10,000/- and valuable articles like silk sarees, watch, mobile phone, etc. 3.4. Based on the complaint, police registered criminal case against the accused for the offence under Sections 324, 448, 307, 436, 504 and 427 of IPC.
3.5. After thorough investigation, charge sheet came to be filed by the police for the aforesaid offences and inter alia arrested the appellant and sent him to judicial custody.
3.6. On receipt of charge sheet, learned Trial Magistrate took cognizance of the offences alleged against the appellant herein and committed the case to learned -5- NC: 2025:KHC:7187 CRL.A No. 1076 of 2013 District Court. The learned District Judge made over the case to I Addl. District Judge who took cognizance of the aforesaid offences and secured the presence of the accused from the judicial custody and framed the charges.
3.7. The accused pleaded not guilty. Therefore, trial was held.
3.8. In order to bring home the guilt of the appellant, prosecution proceeded to examine 11 witnesses as PW-1 to PW-11. Prosecution also placed on record 16 documentary evidence which were exhibited and marked as Exs.P1 to P16.
4. Prosecution also placed on record 13 material objects which were marked as MO-1 to MO-13 consisting of steel knife with black hand, kathi, blue colour blouse, violet colour petticoat, broken steel knife, saree, cement flake with bloodstain, cement flake without bloodstain, etc.
5. During the course of cross-examination of PW-
4, contradictions were elicited which were marked as Ex.D1 and D1(a). A photo was also marked as Ex.D2. -6-
NC: 2025:KHC:7187 CRL.A No. 1076 of 2013
6. On conclusion of recording of evidence, learned Sessions Judge proceeded to record the accused statement as is contemplated under Section 313 of the Cr.P.C., wherein accused has denied all the incriminatory circumstances put to him which were found in the case of the prosecution, but failed to lead any defense evidence.
7. Thereafter, learned Trial Judge heard the arguments of the parties in detail and on cumulative consideration of the oral and documentary evidence placed on record in a cumulative manner, convicted the appellant for the offence and sentenced as under:
"Accused M.S.Kumara is convicted u/sec.235(2) of Cr.P.C. for the offences punishable under Sections 448, 504, 307, 324, 427, 436 of IPC.
Accused shall undergo SI for a period of 4 years for the offence u/sec. 307 of IPC and also directed to pay fine of Rs.20,000/-; in default, he shall undergo further SI for a period of 3 months.
Further, accused sentenced to undergo SI for a period of 4 years for the offences U/s.436 of IPC and directed to pay fine of Rs.20,000/- in default of fine amount he shall undergo further SI for a period of 3 months.
Further accused sentenced to undergo SI for a period of 3 months each for the offences U/s.324, -7- NC: 2025:KHC:7187 CRL.A No. 1076 of 2013 448, 504 and 427 of IPC. All sentences shall run concurrently.
Out of the fine amount, it is ordered to pay Rs.30,000/- as compensation to PW-1 Smt.Sharadamma u/sec.357(3) of Cr.P.C.
MO-1 Knife and MO-2 sickle (kathi) are ordered to be confiscated to the State, after appeal period is over.
MOs.3,4,5,6,7,8,9,10,11,12 and 13 are ordered to be destroyed, after appeal period is over, as worthless.
The period of judicial custody already undergone by the accused is permitted to set off under section 428 of Cr.P.C."
8. Being aggrieved by the same, the accused is before this Court in this appeal.
9. Sri. A. V. Ramakrishna, learned counsel representing the appellant, reiterating the grounds urged in the appeal memorandum, vehemently contended that the material on record is not sufficient enough to maintain the conviction of the appellant for the aforesaid offences and hence sought for allowing the appeal.
10. He would further contend that the question of trespassing in to the house would not come into play inasmuch as the accused is none other than the relative of -8- NC: 2025:KHC:7187 CRL.A No. 1076 of 2013 the complainant and visiting the house of his relative should not be treated as an offence under Section 448 of IPC and thus sought for acquittal of the appellant for the offence under Section 448 of IPC by allowing the appeal.
11. He would also contend that the material on record and the wound certificate would not make out a case that neither Sharadamma nor Mamatha sustained any grievous injuries and therefore per se the offence under Section 307 of IPC cannot be maintained in the case on hand.
12. He would also contend that the question of conviction of the appellant for the offence under Section 436 of IPC is also not permissible inasmuch as there is no material evidence on record, except the oral testimony of PW-1 and PW-2 that the accused has actually set the fire to the house of the complainant. Therefore the ingredients to attract the offence under Section 436 of IPC, namely, mischief by fire, is not proved by the -9- NC: 2025:KHC:7187 CRL.A No. 1076 of 2013 prosecution in the case on hand and sought for allowing the appeal.
13. He would further contend that, at the most, since there was an oral altercation on the day of the incident, the offence under Section 324 of IPC could only be maintained in the facts and circumstances of the case and thus sought for allowing the appeal.
14. Alternatively, Sri. Ramakrishna would contend that since the major offences are not established by placing cogent evidence on record, this Court may consider the period of sentence already undergone by the appellant, as period of imprisonment for the remaining offences and taking into consideration the fact that PW-2 and appellant are now married and well settled in their families with children, suitable enhancement of the fine amount may be made and thus sought for allowing the appeal to that extent.
15. Per contra, Sri. Channappa Erappa, learned High Court Government Pleader supports the impugned
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NC: 2025:KHC:7187 CRL.A No. 1076 of 2013 judgment by contending that PW-1 and PW-2 being the injured witnesses have deposed before the Court with graphic details as to what happened on the fateful day.
16. He would further contend that material evidence on record would also be sufficient enough to maintain conviction of the appellant for all the offences and thus sought for dismissal of the appeal.
17. He would further contend that the material objects placed on record, namely, bloodstained clothes, broken steel knife, saree, steel knife with black handle, kathi, cement flake with bloodstain, would definitely establish that there was an injury caused by use of MO-1 and MO-2 to assault PW-1 and PW-2 by the accused and accused had come prepared to take away the life of PW-1 on account of the fact that PW-1 failed to marry PW-2 to him which was agreed earlier. Therefore, there is sufficient motive for the incident. Accused trespassed into the house through the cattle shed door and if at all the argument of the appellant is to be appreciated, he would
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NC: 2025:KHC:7187 CRL.A No. 1076 of 2013 have right royally entered from the main door and thus sought for dismissal of the appeal.
18. Insofar as alternate submission of the learned counsel for the appellant is concerned, learned High Court Government Pleader would contend that if people like the appellant are shown any leniency, similarly placed perpetrators of the crime would get encouraged and they may commit similar activities which sends wrong message to the Society and thus sought for dismissal of the appeal in toto.
19. Having heard the arguments of learned counsel for the parties in detail, this Court perused the material on record meticulously. On such perusal, the following points arise for consideration in this appeal:
(i) Whether the material evidence placed on record would be sufficient enough to maintain the conviction of the appellant for the offence punishable under Section 448, 504, 307, 324, 427 and 436 of IPC?
(ii) Whether the appellant makes out a case of legal infirmity and perversity in the findings recorded by
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NC: 2025:KHC:7187 CRL.A No. 1076 of 2013 the learned Trial Judge in convicting the appellant for the aforesaid offence?
(iii) Whether the sentence needs modification?
(iv) What Order?
20. REG. POINT NOS.1 & 2: In the case on hand, material evidence on record and the oral testimony of PW-1 and PW-2 including the wound certificate of Sharadamma, PW-1 marked at Ex.P7, shows that there are 6 injuries and all the 6 injuries are simple in nature.
21. In Ex.P14, the wound certificate of PW-2, the doctor has noticed 2 injuries on the body of PW-2 which are also simple in nature.
22. If at all, accused had any intention to take away the life of PW-1 and PW-2, as is portrayed by the prosecution, accused would have accomplished his intention, especially, when there were no other persons other than PW-1 and PW-2 at the time of incident. Material on record would also go to show that after PW-1
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NC: 2025:KHC:7187 CRL.A No. 1076 of 2013 sustained injury near the rib region, PW-2 dragged PW-1 out of the house so as to save her.
23. According to the prosecution, it is at that juncture the accused set the house into fire, whereby there was loss of valuable articles. Thereafterwards, accused ran away from the spot. With the help of neighbours, both the injured persons were shifted to the hospital. There is no delay in lodging the complaint and the doctor who examined the injured persons, issued Exs.P7 and P14. Sharadamma was examined at about 1.30 p.m. on 05.06.2009 itself, whereas the incident has occurred around 12.30 p.m.
24. All these factors when viewed cumulatively, this Court is of the considered opinion that the material evidence on record is hardly sufficient to maintain the conviction for the offence punishable under Sections 307 of IPC.
25. Prosecution agency is not able to collect the burnt ash or the damaged valuable articles at the time of
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NC: 2025:KHC:7187 CRL.A No. 1076 of 2013 conducting the spot mahazar. Therefore, the material on record would also not be sufficient to maintain the conviction of the appellant for the offence under Section 436 of IPC.
26. However, the other material on record would be sufficient enough to maintain the conviction of the appellant for the remaining offences, as the appellant has admittedly entered the house of the complainant through cattle shed door and not as a relative of the house who would usually enter through the main door.
27. Recovery of the weapons and injuries noted in Exs.P7 and P14, would make it clear that there was blood injury caused by use of MO-1 and MO-2 by the appellant. All these facts when viewed cumulatively, this Court is of the considered opinion that the appellant is entitled for acquittal of offence under Section 307 and 436 of IPC and his conviction for remaining offences are to be maintained.
28. In view of the foregoing discussion, point No.1 and point No.2 are answered partly in affirmative.
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NC: 2025:KHC:7187 CRL.A No. 1076 of 2013
29. REG. POINT NO.3: In view of the above findings, material on record would indicate that the accused was in custody for a period of nine months. It is also to be noted that both PW-2 and the appellant are now married and settled in life with their respective spouses and they are also having 2 children, each.
30. Therefore, ends of justice would be met in the case on hand, by directing the custody period already undergone by the appellant as the period of imprisonment for the remaining offences, by enhancing fine amount in a sum of Rs.1,00,000/-, in addition to the fine amount already deposited. Accordingly, point No.3 is answered in the partly in affirmative.
31. REG. POINT NO.4: In view of the findings of this Court on point Nos.1 to 3 as above, following:
ORDER
i) The appeal is allowed.
ii) Appellant is acquitted for the offence under Sections 307 and 436 of IPC. Conviction
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NC: 2025:KHC:7187 CRL.A No. 1076 of 2013 of the appellant for the remaining offences is maintained.
iii) Consequently, the sentence ordered by the learned Trial Judge is modified as under:
The custody period already undergone by the appellant is treated as the period of imprisonment for the remaining offences by enhancing the fine amount in a sum of Rs.1,00,000/- (Rs.40,000/- + Rs.1,00,000/- = Rs.1,40,000/-).
iv) Enhanced fine amount is to be deposited on or before 20.03.2025, failing
which, the accused - appellant shall undergo imprisonment for a period of one year.
v) On receipt of enhanced fine amount, a sum for Rs.50,000/- is ordered to be paid as compensation to PW-1 and balance sum of Rs.50,000/- to PW-2, under due identification.
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NC: 2025:KHC:7187 CRL.A No. 1076 of 2013 Office is directed to return the Trial Court records with a copy of this judgment, for passing the modified conviction warrant, forthwith.
Ordered accordingly.
Sd/-
(V SRISHANANDA) JUDGE RD