Karnataka High Court
Sri K M Krishnappa vs Sri Nataraj on 26 November, 2020
Author: K.Somashekar
Bench: K. Somashekar
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE K. SOMASHEKAR
CRIMINAL PETITION NO.3735/2017
BETWEEN:
SRI. K M KRISHNAPPA,
S/O MUNIKEMPAIAH,
AGED ABOUT 61 YEARS,
R/A KORAMANGALA VILLAGE,
VIJAYAPURA HOBLI,
DEVANAHALLI TALUK,
BENGALURU RURAL DISTRICT - 562 110.
... PETITIONER
(BY SRI.NANJUNDA GOWDA M.R., ADVOCATE)
AND:
1. SRI. NATARAJ,
S/O RAMAPPA,
AGED ABOUT 33 YEARS,
2. SRI. MURALIDHAR,
S/O LATE KRISHNAPPA,
AGED ABOUT 61 YEARS,
3. SRI. D NARAYANAPPA,
S/O THIPPANNA,
AGED ABOUT 70 YEARS,
4. SRI. GOVINDAPPA,
S/O NANJAPPA,
AGED ABOUT 66 YEARS,
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5. SRI. MUNIVENKATAPPA,
S/O KEMPANNA,
AGED ABOUT 66 YEARS,
6. SRI. L KRISHNAPPA,
S/O LAKSHMAIAH,
AGED ABOUT 61 YEARS,
7. SRI. ANJINAPPA,
S/O BANGIYAPPA,
AGED ABOUT 69 YEARS,
8. SRI. MADDURAPPA
S/O POOJAPPA,
AGED ABOUT 69 YEARS,
9. SRI. BYREGOWDA,
S/O VEERAPPA,
AGED ABOUT 71 YEARS,
10. SRI.K.V.BYREGOWDA,
S/O M VEERAPPA,
AGED ABOUT 49 YEARS,
11. SRI. KESHAVAPPA,
S/O CHANPPA,
AGED ABOUT 66 YEARS,
12. SRI. PAPAIAH @ MUNIPAPAIAH,
S/O CHIKKAVENKATAPPA,
AGED ABOUT 71 YEARS,
13. SRI. PAPAIAH,
S/O MUNIYAPPA,
AGED ABOUT 71 YEARS,
14. SRI. NANJAPPA G.,
S/O MUNIGUDIYAPPA,
AGED ABOUT 79 YEARS,
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15. SRI.D.N.NARAYANASWAMY,
S/O NANJAPPA,
AGED ABOUT 61 YEARS,
16. SRI. NANJUNDAPPA,
S/O LATE LAKSHMAIAH,
AGED ABOUT 81 YEARS,
17. SRI. SUBBEGOWDA,
S/O NARAYANAPPA,
AGED ABOUT 61 YEARS,
18. SRI. SONNAPPA,
S/O MOTAPPA,
AGED ABOUT 66 YEARS,
19. SRI.C.MUNIKRISHNAPPA,
S/O CHIKKAMUNIYAPPA,
AGED ABOUT 46 YEARS,
20. SRI. MANAMATHAKUMAR,
S/O M. VEERAPPA,
AGED ABOUT 31 YEARS,
21. SRI. CHANNARAYAPPA C.,
S/O CHINAPPA,
AGED ABOUT 69 YEARS,
22. SRI. LAKSHMINARAYANA,
S/O KRISHNAPPA,
AGED ABOUT 46 YEARS,
23. SRI. ASHOK KUMAR,
S/O NANJAPPA,
AGED ABOUT YEARS
24. SRI. KRISHNAIAH,
S/O CHINAPPA,
AGED ABOUT 49 YEARS,
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25. SRI. SUBBAREDDY,
S/O SUBANNA,
AGED ABOUT 49 YEARS,
RESPONDENTS NO.1 TO 25
R/A KORAMANGALA VILLAGE,
VIJAYAPURA HOBLI,
DEVANAHALLI,
BENGALURU RURAL DISTRICT - 562 110.
26. STATE OF KARNATAKA
BY VIJAYAPURA POLICE STATION,
BENGALURU RURAL DISTRICT,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDINGS,
BENGALURU - 560 001.
... RESPONDENTS
(BY SRI.S.SHANKARAPPA, ADVOCATE FOR R-1 TO R-25;
SMT.RASHMI JADHAV, HCGP FOR R-26)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C. PRAYING TO SET ASIDE THE ORDER
DATED 13.04.2017 PASSED BY THE ADDL. CIVIL JUDGE
AND JMFC, DEVANAHALLI, BANGALORE RURAL DISTRICT,
BANGALORE IN C.C.NO.515/2001 AND ALLOW THE
APPLICATION FILED UNDER SECTION 323 OF CRPC.
THIS CRIMINAL PETITION COMING ON FOR
ADMISSION, THIS DAY, THROUGH VIDEO CONFERENCING
THE COURT MADE THE FOLLOWING:
ORDER
The petitioner-K.M. Krishnappa, arraigned as de- facto complainant in C.C. No.515/2001 arose in Crime No.34/2001 registered by Vijayapura Police Station, 5 Devanahalli, Bengaluru Rural District, in this petition is seeking for setting aside of the order dated 13.4.2017 passed by the Court of Additional Civil Judge and JMFC, Devanahalli, in C.C. No.515/2001 for having rejected the application filed by the State/prosecution.
2. Though this petition is listed for admission, with consent of learned Counsel for both the parties, the matter is taken up for final disposal.
3. It is stated that, on 1.4.2001, Sri K.M. Krishnappa had approached Vijayapura Police Station, Bengalore and filed a complaint. Based upon his complaint, a case in crime No.34/2001 came to be registered against respondent Nos.1 to 25-accused for the offences punishable under Sections 143, 147, 148, 302, 323, 324 read with Section 149 of IPC. It is stated that Kempanna, son of late Madagappa, died due to cardiac arrest due to shock as a result of pericardial effusion and COPD. The cause of death as opined by the Doctor is in post mortem report issued after conducting autopsy over 6 the dead body of Kempanna. Therefore, the offence under Section 302 of IPC was left in crime No.34/2001.
4. The allegations made in the complaint are that on 1.4.2001 at about 9.30 a.m., the respondents who were arraigned as accused in the charge sheet and one Subbareddy formed unlawful assembly holding material objects in site No.24 of complainant K.M. Krishnappa. At that time, the complainant and his brother so also others of the same village prevented the accused and told that the case in O.S. No.798/1999 between the plaintiff and defendants is pending for adjudication on the file of Principal Civil Judge, Bengaluru. The respondents herein are the parties to the aforesaid proceedings of civil in nature. It is further pleaded that at the time of the said act committed by the accused, they were holding choppers, clubs and other dangerous weapons in their hands and began to assault the complainant namely K.M. Krishnappa and also his family members. As a result, the complainant sustained injuries which was revealed in the wound certificate issued by the doctor. The further 7 allegations made in the complaint are that accused Nos.1 to 7 in the said crime alleged to have assaulted with clubs on the head part of Kempanna and others assaulted on various parts of his body, due to the said impact, the said Kempanna died and others sustained grievous and simple injuries. In pursuance of the said act of the accused and on the complaint of K.M. Krishnappa, the case in crime No.34/2001 came to be registered for the offences reflected in FIR. The charge sheet has been laid against the respondents herein who were arraigned as accused by dropping of the offence punishable under Section 302 of IPC.
5. Subsequently, investigation was conducted by the investigating agency, who thoroughly investigated the case and cited witnesses namely, Chokkappa, Chandrappa, Narayanaswamy, Nanjamma, Lakshmamma, Muni Kempamma, Nagesha and Muniraja who are said to be sustained injuries which reflected in the wound certificate. Charge sheet has been laid against the accused in C.C. No.515/2001 which is pending before the Court of Additional Civil Judge and JMFC, Devanahalli, wherein the 8 accused persons are facing of trial for the offences which are leveled against them. In the meanwhile, during the pendency of the case for trial, the prosecution has filed an application under Section 323 of Cr.P.C. seeking committal of case in C.C. No.515/2001 to the Sessions Court.
6. Subsequent to hearing of the arguments of the learned SPP so also learned counsel for accused, the Additional Civil Judge and JMFC, Devanahalli, assigning the reasons that on perusal of the entire case relating to material which is secured by the investigation officer during the course of investigation so also the wound certificate issued by the doctor relating to the injured and even looking into the medical certificate of C.W.4- Chandrappa who sustained injury which is categorized as grievous in nature, arrived at a conclusion that the prosecution has not made out a case for consideration of the application filed under Section 323 of Cr.P.C. for committal of case in C.C. No.515/2001 to the Sessions Court of Bengaluru Rural District, and consequently rejected the said application filed by the prosecution by its order dated 13.4.2017. The said order dated 13.4.2017 9 has been challenged in this petition by alleging various grounds.
7. Learned Counsel for the petitioner has taken me through the material which was secured by the investigation officer during the course of investigation in relation to the case in Crime No.34/2001 and so also the ingredients which constitute the offence under Section 307 of IPC. Though there are certain ingredients that constitute the offence and also the overt act in execution of the offences leveled against the accused, who made an attempt to take away the life of the injured, the Court of Additional Civil Judge and JMFC, Devanahalli, in C.C. No.515/2001 has rejected the application filed under Section 323 of Cr.P.C. Therefore, the petitioner who is arraigned as a de-facto complainant in Crime No.34/2001 has approached this Court seeking intervention under Section 482 of Cr.P.C.
8. The determinative question is the intention or knowledge of the accused and not the nature of injuries. The injuries inflicted over the injured whether they are 10 grievous or simple in nature, will not by itself rule out the application of Section 307 IPC. Therefore, the intention coupled with some other Act is sufficient to constitute the offence punishable under Section 307 of IPC. On all these premises, the learned Counsel for the petitioner is seeking to allow this petition and set aside the order dated 13.4.2017 passed in C.C. No.515/2001 by the Court of Additional Civil Judge and JMFC, Devanahalli, for having rejected the application filed by the State under Section 323 of Cr.P.C.
9. Learned HCGP for the State has countered his argument advanced by the learned counsel for the petitioner whereby challenging the impugned order passed by the Court of the Additional Civil Judge and JMFC, Devanahalli in C.C.No.515/2001 dated 13.4.2017. The petitioner is said to be a de-facto complainant and based upon his complaint, the case in Crime No.34/2001 came to be registered by the Vijayapura Police station, Bengaluru Rural District.
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10. That CWs 1 to 12 said to be the injured and wherein the accused are alleged to have been assaulted them with means of material objects said to have been seized during the course of investigation. That PWs 1 to 5 have been examined on behalf of the prosecution on 26.2.2017. At that point of trial against the accused that the prosecution has filed an application under Section 323 of Cr.P.C. seeking for committing the case of CC No.515/2001 to the Sessions Court having jurisdiction in Bengaluru Rural district for trial of a case against accused persons. However, in the case set up by the prosecution it is revealed that on 1.4.2005 at around 8.30 p.m., Sri K.M. Krishnappa who is a de-facto complainant, as he is the petitioner before this Court, along with the witnesses were present at House No.24/B belonging to the complainant. All the accused were unlawfully assembled by holding deadly weapons with an intention to commit the alleged offences and trespassed into the said property by holding clubs, stones and brick pieces with an intention to take away the life of CW1-K.M.Krishnappa and other persons said to be the injured and he is the injured as seen by 12 CW12. However, the investigating officer has thoroughly investigated the case and during the investigation conducted spot mahazar and also seized certain material objects said to have been used by the accused and also recorded the statements of the witnesses inclusive of the injured witnesses, apart from securing the wound certificate of the injured and laid the charge sheet against the accused persons. But the court below in C.C.No.515/2001 having gone through the entire material which were secured by the investigating agency during the course of investigation and so also the wound certificate of CWs 1 to 12. With the said circumstances of the case as projected by the prosecution, there are some variations in respect of the contentions as taken in the application by the prosecution for seeking committing of the case to the court of Sessions of Bengaluru Rural District to face the trial by the accused.
11. That in the order passed in Criminal Revision Petition 891/2016 dated 10.1.2017 in page No.9 para No.9 it is observed that the assess of the death from and incident of overt act is the time factor but, that, itself does 13 not make out of case that, with the intention to cause murder of deceased, the accused persons assaulted knowing fully well the consequence of the overact attributed against them. Under these circumstances, the court below in C.C.No.515/2001 and that the application filed under Section 323 Cr.P.C. has been rejected in its order dated 13.4.2017. Therefore, the learned HCGP for the State by supporting that the materials which secured by the investigating officer and so also as to whether the accused are facing trial in C.C.No.515/2001 and in conformity with the allegations made against the accused as well as the overt act attributed against them. Therefore, in this petition do not require any intervention as contemplated under Section 482 of Cr.P.C.
12. On these premises seeking for dismissal of this petition by conforming the order passed by the Court of Additional Civil Judge and JMFC at Devanahalli in C.C.No.551/2001 dated 13.4.2017.
13. In this context it is relevant to refer to the FIR said to have been recorded by the Vijayapura police 14 station of Bengaluru Rural District in Crime No.34/2001 relating to the charge sheet in C.C.No.515/2001. The accused have been cited in the FIR alleged to have been committed the offence and so also the remand report said to have been filed by the investigating agency and submitted during the prosecution. Subsequent to this the investigation has been thoroughly done by the investigating officer and laid the charge sheet against the accused before the Court of Additional Civil Judge and Devanahalli in the charge sheet at paragraph 7, the offences as disclosed under Sections 143, 147, 148, 323, 324, 326 r/w.149 of IPC against the accused Nos.1 to 26.
14. That it is relevant to refer to the wound certificate issued by the Doctor for having subjected to examine the injured viz. Munikempanna, the Doctor opined that the injuries are simple in nature and due to the hard blunt objects, injuries No.1 to 5 and 6 are the injuries caused due to hard and sharp objects and will heal within 7 to 10 days under proper medical care.
Chandrappa s/o.late Munikempaiah being the injured is subject to examination by the Doctor and issued the 15 wound certificate as first injury mentioned is grievous injury and 2nd and 3rd are simple caused by hard, rough object and will heal in 3 to 4 weeks under proper medical care.
Chokkappa s/o.late Budagappa is also a injured who have been subjected to examined by the Doctor and given a injury certificate opined as the above said injury is a simple one and is due to hard blunt object and will heal within 5 to 7 days under proper medical care.
Nanjamma w/o.Narayanaswamy she being the injured have been subjected to medical examination and the Doctor who had issued the wound certificate opined that the above said injuries are simple in nature and are due to external elements and will heal within 7 to 10 under proper medical care.
Lakshmamma w/o.Nagaraja she being the injured in the wound certificate, the above said injuries are simple in nature and are due to external violence and will heal within seven days under proper medical care.
Nagesha s/o.Munishamappa he also being an injured who had been under proper treatment, the doctor has 16 opined that the injuries are simple in nature and are caused due to hard blunt rough object and will heal within 10 days under proper medical care.
Muniraja s/o.Nanjappa, he also been injured and the Doctor who issued the wound certificate opined that as the injuries are simple in nature and are due to external violence and will heal within 7 to 10 days under proper medical care.
C.Muniraju s/o,.Chokappa he also one of the injured have been subjected to provide treatment and the Doctor opined that as in the wound certificate that the injuries are simple in nature and are due to hard, blunt, rough object and will heal within 7 to 10 days under proper medical care.
Narayanaswamy s/o.Nanjappa he is also injured and that he was also subjected to medical proper treatment where the Doctor has opined that the injuries are simple in nature and are due to external violence and will heal within 7 to 10 days under proper medical care.
15. These injury certificates are secured by the investigating agency during the course of investigation 17 done in connection with Crime No.34/2001 and had laid the charge sheet against the accused before the Court of Additional Civil Judge and JMFC, Devanahalli. But the incident had taken place on 1.4.2001 at around 9.30 a.m. alleging that the respondents herein, said to be arraigned as accused in the charge sheet, have formed themselves into an unlawful assembly by holding deadly weapons, entered into site No.24 of the complainant and alleged to have assaulted the injured with means of objects said to have been seized under the mahazar as conducted by the investigating agency. The charge sheet has been laid by the investigating agency against the accused by citing CWs 1 to 26. The accused is said to have assaulted CWs 1 to 12, causing injuries to them and made an attempt to take away their life. However the prosecution subjected PW s 1 to 5 to cross examination and thereafter has filed an application under Section 323 of Cr.P.C. to commit the case to be tried by the learned Judge of Sessions Court of Bengaluru Rural District in CC No.515/2001. PW4 who sustained injuries wherein it is mentioned as serious in nature.
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16. Merely because of the nature of the injuries sustained on his person, the prosecution cannot claim the provision of invoking Section 307 of Indian Penal Code as the accused made attempt of committing murder of the injured persons. Unless the ingredients have to be constituted for invoking the offence under Section 307 of IPC, it cannot be committed to the court of sessions to deal with the matter and it is only after subjecting to examination of some of the witnesses on the part of the prosecution it can be done. But the injury certificate which is issued by the Doctor opined that the injuries are simple in nature and some of the injuries grievous in nature. But it is the domain vested with the prosecution to establish the guilt of the accused by facilitating the worthwhile evidence in order to secure them for conviction.
17. The motive factor as also the intention to commit the offence, have to be established by the prosecution by basing upon the material produced by the prosecution during the course of investigation. But in the instant case, injuries alleged to have been inflicted by the accused on 19 the injured appears to be simple in nature and some of the injured were inflicted with serious injuries. In the charge sheet the offence under section 326 of IPC and other offences were also alleged against the accused. Therefore, the court below in C.C.No.151/2011 have gone through the entire materials available on record in the charge sheet laid by the investigating officer and so also the reliance which are produced by the prosecution for supporting their contention to consider the application under section 323 Cr.P.C and so also sustained injuries to CW4-Chandrppa which is categorised as serious in nature. The circumstance of the case is that the accused by holding deadly weapons came with an intention to assault CWs 1 to 12. But on scrutiny of the case the alleged incident and the material objects collected during the course of investigation for laying charge sheet reveals that the incident has taken place in the open space where the material objects such as wooden clubs, stones and brick pieces which are alleged to have been used and the investigating officer has seized are readily available. If at all the accused had an intention to kill CWs 1 to 12 they 20 would have got the weapon apart from the above mentioned material objects. Therefore, it is clear that when the case is open for trial and the accused require to face trial as of this stage it cannot be said that the prosecution cannot press the domain of Section 323 of Cr.P.C. for committing the case to the Sessions Court which is having jurisdiction by invoking Section 307 of IPC. But the incident relating to overt act is the time factor but that itself does not make out a strong case against the prosecution and also there is lack of ingredients relating to the offence under section 302 of IPC. Therefore, this petition do not have any substance or any justifiable grounds as urged by the learned counsel for the petitioner which calls for interference for setting aside the order passed by the learned Civil Judge rejecting the application filed by the prosecution under Section 323 of the Criminal Procedure Code.
18. Under Section 173(2) of the Cr.P.C., it is the power vested with the investigating agency to proceed with the investigation and follow the requisite condition in order to recording the statements of the witnesses and 21 conduct the mahazar in the presence of witnesses and whatever material required for the constitution of the offence and the same has been secured and thereafter laying the charge sheet as contemplated by the relevant provisions for further investigation to laying the additional charge sheet which cannot be the material point in this petition for intervention as contemplated under section 482 of Cr.P.C. But there are no justifiable grounds as alleged in this petition. Consequently, the petition deserves to be rejected.
19. Accordingly, I proceed to pass the following order :-
ORDER
1) The petition filed by the petitioner/complainant under Section 482 of Cr.P.C. is hereby rejected;
2) Consequently, the order passed by the learned Additional Civil Judge and JMFC at Devanahalli Bengaluru Rural District in C.C.No.515/2001 dated 13.4.2017 for having rejected the application filed by the prosecution under Section 323 of Cr.P.C. is hereby confirmed;22
3) Whatever observation made in this order shall not come in the way of the trial court in regard to the accused requiring to face trial in C.C.No.515/2001 and it shall proceed in accordance with law keeping open all contentions as has been taken by the prosecution and so also the defence counsel to establish their case.
Sd/-
JUDGE Cs/rs