Karnataka High Court
Sri Shanthakumar vs The State Of Karnataka on 16 June, 2014
1 Crl.A 573/11
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 16TH DAY OF JUNE, 2014
BEFORE:
THE HON'BLE MR. JUSTICE A.S.PACHHAPURE
CRIMINAL APPEAL No.573 OF 2011
BETWEEN:
Shanthakumar,
S/o. Hanumanthaiah,
Aged about 30 years,
Agriculturist,
R/o. Savashetty Halli,
Kasaba Hobli,
Chikkanayakanahalli Taluk,
Tumkur District. ... APPELLANT/S
[By Sri. K.Manjunath, Adv.]
AND:
The State of Karnataka
by Huliyar Police.
Rep. by learned State Public Prosecutor,
High Court of Karnataka,
Bangalore. ... RESPONDENT/S
[By Sri. Nageshwarappa, HCGP.]
***
2 Crl.A 573/11
This Crl.A. is filed u/Section 374(2) Cr.P.C
praying to set aside the Order dt: 31.05.2011
passed by the P.O., FTC, Tiptur in S.C.
No.123/2010 - convicting the appellant/accused for
the offence p/u/Ss.307, 326, 324 of IPC.
And the appellant/accused is sentenced to undergo
R.I. for 7 years and fine of Rs.20,000/- for the
offence p/u/S.307 of IPC; in default of payment of
fine, to undergo S.I. for further period of six
months.
And the appellant/accused is sentenced to undergo
R.I. for 5 years and fine of Rs.10,000/- for the
offence p/u/S.326 of IPC; in default of payment of
fine, to undergo S.I. for further period of three
months.
And the appellant/accused is sentenced to undergo
R.I. for 2 years and fine of Rs.5,000/- for the
offence u/S.324 of IPC; in default of payment of
fine, to undergo S.I. for further period of one
month.
All the sentences shall run concurrently.
This Crl.A. coming on for Hearing, this day
the Court delivered the following:
JUDGMENT
The appellant has challenged his conviction and sentence ordered by the trial Court for the offence punishable under Sections 307, 326 and 324 IPC on a trial held by the Fast Track Court, Thiptur.
3 Crl.A 573/11
2. The facts reveal that the appellant herein is the husband of P.W.2-Radha and 3 days prior to the incident she had returned to her parents' house. The appellant to take back his wife, came to the house of his parents-in-law and when he asked his wife to accompany him, she refused. Enraged by the conduct of P.W.2-Radha, the appellant went to the neighbour's house, brought a sickle and assaulted P.W.2-Radha, who sustained grievous injury. When P.W.4-Kariyamma, the mother of P.W.2 intervened, the appellant assaulted on her too with the said sickle, as a result, she also sustained injury. Meanwhile, P.W.1-Kamala, another daughter-P.W.4 intervened and the appellant assaulted them as well and ultimately, P.W.5-Murutesh intervened during the assault on P.W.3-Geeta, the appellant is said to have assaulted him also with the said sickle. In the aforesaid circumstances, a complaint came to be filed by P.W.1 under Ex.P1, which came to be 4 Crl.A 573/11 registered for the offence punishable under Sections 324, 504 and 307 IPC in Crime No.23/2010 and the FIR was sent to the Magistrate. The injured was taken to the hospital and treatment was given. Spot-mahazar was held and from the scene of occurrence, M.O.1-blood stained mud was seized under Ex.P2. Statements of the witnesses were recorded and M.O.6-sickle was seized at the instance of the accused under Ex.P4. The seized articles were sent to the opinion of the expert and Ex.P13-FSL report was obtained. After complying the necessary formalities, a charge sheet was filed against the appellant for the offence punishable under Sections 324, 504 and 307 IPC.
During the trial, the prosecution examined P.Ws.1 to 10 and in their evidence, documents Exs.P1 to 14(a) and M.Os.1 to 6 were marked. Statement of the accused/appellant was recorded under Section 313 Cr.P.C., but no defence evidence 5 Crl.A 573/11 was led. Anyhow, Exs.D1 and 2, the contradictions were admitted in the evidence of P.Ws.6 and 7.
After hearing the parties and on appreciation of the material on record, the trial Court convicted the appellant for the charge under Sections 307, 326 and 324 IPC and ordered him to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.20,000-00 for the offence punishable under Section 307 IPC., rigorous imprisonment for 5 years and to pay a fine of Rs.10,000-00 for the offence punishable under Section 326 IPC., and lesser sentence for the offence punishable under Section 324 IPC. Aggrieved by the conviction and sentence, the present appeal is filed.
3. I have heard learned counsel for the appellant and also the learned High Court Government Pleader.
6 Crl.A 573/11
4. The point that arises for my consideration is;
Whether the conviction and sentence ordered by the trial Court for the offence punishable under Sections 307, 326 and 324 IPC warrants interference?
5. Learned counsel for the appellant submits that there is no corroboration to the evidence of the injured-P.Ws.1 to 5 and in the absence of corroboration, the evidence cannot be accepted. He submits that the incident was preceded by a quarrel between the appellant and his wife-P.W.2-Radha and the provisions of Section 307, 326 and 324 IPC are not attracted. It is also his submission that the appellant is the husband of P.W.2-Radha and the other witnesses are close relatives and as an offer was made for settlement during the pendency of the assault and for the absence of P.W.3, it was not considered. He submits that as the appellant has been in the 7 Crl.A 573/11 custody for more than 4 years, the sentence may be confined to his custody period during the pendency of the proceedings and he may be released.
On the other hand, learned Government Pleader supporting the impugned Judgment and Order submits that the evidence of the injured has been rightly accepted by the trial Court and no grounds are made out to warrant interference in the conviction and sentence ordered.
6. Ex.P1 is the copy of the complaint admitted in the evidence of P.W.1 and as could be seen from the complaint, it reveals that when P.W.2 returned to her parental house on the date of the incident, the appellant went there and questioned as to why P.W.2-Radha without information has returned to her parental home. It is because of this reason that there was a quarrel between P.W.2-Radha i.e. his wife and she refused to accompany to his house. It is in the aforesaid 8 Crl.A 573/11 circumstances that the appellant went to the house of the neighbour, brought a sickle and assaulted P.W.2-Radha. Subsequently, there was intervention by P.Ws.4, 1, 3 and 5, who are none other than the mother, sisters and brother of P.W.2-Radha. The appellant is said to have assaulted on each of these witnesses and it was a single blow, which was given on them with the sickle-M.O.6.
7. So far as this assault is concerned, the evidence of P.Ws.1 to 5 is consistent and cogent. It is relevant to mention here that P.W.2 has sustained grievous injury and P.W.10 is the doctor, who treated her and the injury certificate has been produced at Ex.P9. That of the injured P.W.1 is produced at Ex.P8. The injury certificate of P.W.3 has been produced at Ex.P10, whereas that of P.W.4-Kariyamma is produced at Ex.P11 and the injury certificate of P.W.5- Maruthesh [Maruthi] is produced at Ex.P12. The perusal of the injury certificate Ex.P9 reveals 9 Crl.A 573/11 that there was a depressed fracture of frontal bone and the injury is said to be grievous and the rest of the injuries are simple in nature.
8. The incident was preceded by a quarrel, it is only because that P.W.2-Radha did not agree to accompany her husband/accused, he was enraged by the conduct of P.W.2. The incident took place due to grave and sudden provocation on the refusal by P.W.2-Radha to accompany the accused. In the circumstances, I do not think that the trial Court was justified in applying Section 307 IPC. It would be under Section 308 IPC, an offence of attempt to commit culpable homicide.
Further, if the person voluntarily caused grievous hurt on sudden provocation, such offence is punishable under Section 335 IPC and in respect of simple injuries that the provisions under Section 334 IPC which is applicable. Therefore, the conviction of the appellant for the offence 10 Crl.A 573/11 punishable under Sections 307, 324 and 326 IPC are improper and erroneous.
9. The punishment for the offence under Section 308 IPC is imprisonment for 7 years, whereas the punishment for the offence under Section 334 IPC is imprisonment for one year and fine and for the offence under Section 335 IPC is imprisonment for 4 years and fine. The appellant has been in custody for more than 4 years. Taking into consideration the aforesaid circumstances, reasonable sentence for the aforesaid offences is undergone by the appellant.
10. The prosecution has examined P.W.7- Jayaramaiah, from whose house M.0.6-sickle was brought and P.W.8-Lokesh is also a neihbour, who speaks of shifting the injured to the hospital for treatment. P.W.9-ASI is the person, who held the investigation. The scrutiny of the material placed on record reveals that the appellant is 11 Crl.A 573/11 responsible for the offence punishable under Sections 308, 335 and 334 IPC. Hence, the point is answered in partly affirmative and partly negative.
Consequently, the appeal is allowed in part. The conviction and sentence ordered by the trial Court for the offence punishable under Sections 307, 326 and 324 IPC is set aside. The appellant is convicted for the offences punishable under Sections 308, 335 and 334 IPC. For the offence under Section 308 IPC., he is ordered to undergo rigorous imprisonment for 4 [four] years and to pay a fine of Rs.2,000-00 in default, to undergo simple imprisonment for 4 [four] months. For the offence under Section 335 IPC., he is ordered to undergo rigorous imprisonment for 3 [three] years and to pay a fine of Rs.2,500-00 in default, to undergo simple imprisonment for 3 [three] months. For the offence under Section 334 IPC., he is ordered to undergo rigorous imprisonment for one 12 Crl.A 573/11 month and to pay a fine of Rs.500-00 in default, to undergo simple imprisonment for a week. All the substantial sentences shall run concurrently. He is entitled to the set off under Section 428 Cr.P.C.
If the appellant has completed the sentence, he is ordered to be released immediately. In view of disposal of the appeal, I.A. No.2/11 filed for suspension of sentence and bail, I.A. No.3/11 filed for compounding the offence and I.A. No.1/14 filed for early hearing are rejected.
Sd/-
JUDGE.
Ksm*