Karnataka High Court
Mr.Subramani @ Mani vs State Of Karnataka on 27 June, 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JUNE, 2018
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
CRIMINAL APPEAL No.551/2010
BETWEEN:
1.MR.SUBRAMANI @ MANI
AGED ABOUT 26 YEARS,
S/O KRISHNAPPA,
R/AT NO.43, 3RD CROSS, NEHRU ROAD,
HOSAGUDDAHALLI, MYSORE ROAD,
BANGALORE
2.MR. SRINIVASA @ SEENA
AGED ABOUT 23 YEARS,
S/O KRISHNAPPA
R/O AT NO.43, 3RD CROSS,
NEHRU ROAD, HOSAGUDDAHALLI,
MYSORE ROAD, BANGALORE
3.MR. KRISHNAPPA
AGED ABOUT 57 YEARS,
S/O LATE NARAYANAPA
R/O AT NO.43, 3RD CROSS,
NEHRU ROAD, HOSAGUDDAHALLI,
MYSORE ROAD, BANGALORE ..APPELLANTS
(BY SRI K J GOPI, ADVOCATE-ABSENT)
AND:
STATE OF KARNATAKA
BY BYATARAYANAPURA POLICE,
2
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURTS COMPLEX,
BANGALORE. ..RESPONDENT
(BY SRI NASRULLA KHAN, HCGP)
THIS CRIMINAL APPEAL IS FILED U/S.374(2) OF
CR.P.C BY THE ADVOCATE FOR THE APPELLANTS PRAYING
TO SET-ASIDE THE JUDGMENT AND ORDER DATED
28.04.2010 PASSED IN S.C.NO.154/2008 AND SC
NO.667/2008 BY THE PRESIDING OFFICER, FTC-V,
BANGALORE, WHEREIN APPELLANTS/ ACCUSED NO.1 TO 3
WERE CONVICTED FOR THE OFFENCE PUNISHABLE UNDER
SECTIONS 324 AND 326 R/W SECTION 34 OF IPC AND
THE APPELLANTS/ ACCUSED NO.1 TO 3 WERE SENTENCED
TO UNDERGO R.I. FOR ONE YEAR AND FINE OF `1,000/-
EACH AND IN DEFAULT OF PAYMENT OF FINE TO
UNDERGO S.I. FOR PERIOD OF THREE MONTHS FOR THE
OFFENCE PUNISHABLE UNDER SECTION 324 R/W 34 OF
IPC.AND FURTHER THE APPELLANTS / ACCUSED NO.1 TO
3 SENTENCED TO UNDERGO R.I. FOR THREE YEARS AND
FINE OF `3,000/- EACH AND IN DEFAULT OF PAYMENT OF
FINE TO UNDERGO S.I. FOR PERIOD OF NINE MONTHS
FOR THE OFFENCE PUNISHABLE UNDER SECTION 326 R/W
34 OF IPC.
SUBSTANTIVE SENTENCE FOR BOTH OFFENCES SHALL
RUN CONCURRENTLY.
THIS CRIMINAL APPEAL COMING ON FOR FINAL
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Counsel for appellant absent. No representation. Appeal is of the year 2010 that was notified well in 3 advance. It is listed under Final Hearing. Perused the order sheet. There are no grounds to adjourn the case. The absence of learned counsel for appellant is placed on record. The default of the appellant or his counsel to go ahead with the appeal is not treated the criteria for dismissing the appeal. But the matter, materials and the circumstances and the available evidence are perused and heard learned High Court Government Pleader and I proceed to dispose of the matter on merits.
2. Appeal is directed against the Judgment passed by the learned Presiding Officer, FTC-V, Bengaluru in S.C.No.154/2008 and S.C.No.667/2008 dated 28.04.2010 wherein the accused Nos.1 to 3 were convicted for the offence punishable under Sections 324 and 326 read with Section 34 of IPC. Accused Nos.1 to 5 were acquitted for the offence punishable 4 under Sections 143, 148, 323, 307 read with Section 149 of IPC. Further accused Nos.4 and 5 were acquitted for the offence punishable under Sections 324, 326 read with Section 34 of IPC. After hearing on sentence, learned trial Judge sentenced accused Nos.1 to 3 to undergo rigorous imprisonment for one year and fine of `1,000/- each and in default of payment of fine to undergo simple imprisonment for period of three months for the offence punishable under Section 324 read with section 34 of IPC. Further to undergo three years rigorous imprisonment and to pay fine of `3,000/- each and in default of payment of fine to undergo simple imprisonment for period of nine months for the offence punishable under Section 326 read with Section 34 of IPC. No appeal preferred by the prosecution. 5
3. S.C.No.154/2008 and S.C.No.667/2008 are nothing but the resultant one of S.C.No.154/2008 as split charge sheet came to be filed in view of the abscondence of the accused. However, are disposed of by common judgment.
4. Criminal law was set into motion by one Srinivasaiah, aged 62 years, s/o Alasingaiah, No.87/1, 3rd Cross, Neharu Road, New Guddadahalli, Mysore Road, Bengaluru. He resided at the address stated above and was a Revenue Inspector. He has five children and they are all grown up. Krishnappa and his sons are residing in the opposite house. Mani, Seena, Shankar and Shreedhar for the past six months were playing ball, several times ball has fell into the house of complainant and complainant asked them to play somewhere else. For that they have threatened complainant.
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5. On 14.10.2007 from morning till evening they were playing cricket and at 6.45 P.M. complainant returned from outside and saw them playing and asked them not to play but they did not listen to complainant. Mani, Seena Shekar, Sridhara being sons of Krishnappa and Krishnappa further threatened complainant that they are not going to leave and so stating Mani-Accused No.3 held complainant and Seena, accused No.1 hit the face of the complainant with chopper. Krishnappa A-2 pierced a knife and by that time son of complainant -Swamy came to the spot and questioned them as to why they were hitting his father. Mani-Accused No.3 hit the son of the complainant with knife on back and stomach. Shekar- Accused No.4 and Shridhara-Accused No.5 hit the face. Charge sheet was submitted for the offence punishable under Sections 143, 144, 148, 323, 324, 307 read with Section 149 of IPC.
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6. In this connection it is stated there was enmity between the complainant family and that of accused persons. On 14.10.2007 accused Nos.1 to 5 in prosecution of common object attacked the complainant wherein accused No.1 held chopper accused Nos.2 and 3-knife and accused No.4 and 5 with hand formed unlawful assembly wherein accused No.1 hit the complainant with chopper and accused No.2 stabbed complainant with knife, Accused No.3 hit the complainant's son Swamy with knife on back and stomach. The matter was committed to the court of the learned Sessions Judge and FTC and prosecution adduced oral evidence of PW-1 to PW-11 including complainant and injured. Documentary evidence Exhibits P-1 to 16 including complaint, spot mahazar, seizure mahazar and material objects MO 1 to 5 including weapons used for commission of offence. Exhibit P-4 spot mahazar dated 15.10.2007. Blood 8 stained clothes were seized as per MO 4 and 5. Exhibit P-12 is the mahazar for seizing MO -2 Knife from the custody of accused No.3. The documents regarding injuries are Exhibit P-7 wound certificate of PW-2 dated 17.12.2007, Exhibit P-8 wound certificate of PW-3 dated 05.11.2007. Out of the prosecution witnesses who are numbered PW-2 and PW-3 is father and son respectively. PW-5 is stated to be eye witness and also son of the complainant PW-2. Dr.H.C.Cheluvanarayana-PW-6 who gave opinion regarding third injury. Dr.Vijayashree -PW-8 who examined PW-2 and PW-3. Satyanarayana Singh- PW-9, M.K.Uthappa -PW-10, D.S.Rajendra- PW-11 - police officials including investigating officer.
7. In order to maintain chronology, evidence of PW-2 -Srinivasaiah is considered on priority. He deposed regarding complaint lodged by him. He 9 reiterates the averments made in the complaint and regarding the incident on 14.10.2007 in the evening at 6.45 P.M when the complainant was standing in front of the house, accused persons were playing cricket and ball fell on the house of the complainant and when he asked the accused he was threatened of life by the accused and all of them formed unlawful assembly and came in front of the house of complainant and accused No.3 held the complainant and accused No.1 hit the complainant with chopper on the face of the complainant and accused No.2 pierced the knife into complainant's stomach. Both accused No.4 and 5 hit on the face of the complainant. By that time complainant's son tried to rescue, accused No.1 hit the complainant's son with chopper on stomach and back. He identifies chopper MO-1, knife MO-2. He has been cross examined by the learned counsel for accused. It is elicited from him that police 10 inspector first asked the complainant and his sons to go to hospital. Further portion of the cross examination is regarding omission and commission. However no significance can be seen from the answers given in the cross examination.
8. PW-3 -Swamy is the son of complainant-PW-2. He reiterates the averments of his father and on the date of incident how the trouble erupted because of falling of ball on the house of complainant and on questioning the accused threatening and thereafter hitting the complainant with chopper and knife and hit Swamy with knife. He has been cross examined, it is elicited that the place where the incident happened is a crowded area and a busy area.
9. PW-5 the other son of the complainant. In his chief examination he tells about the attack and the 11 injuries inflicted by the accused, regarding abetment to murder. However, he deposed regarding hitting with chopper by accused No.1 on the cheek of his father. Second accused stabbed with knife, PW-3 tried to stop and accused No.3 stabbed him on the left shoulder and stomach. However, in the cross examination by PP he retracts hostility. Further cross examination is regarding distance between place of offence and police station and not knowing about persons playing cricket and admission to the effect that his clothes were not blood stained when he was on the way to police station.
10. PW-7-Avinash .B is cited as eye witness to the incident that took place on 14.10.2007. He endorses the version of the complainant and deposed that, at the time of incident, accused No.1 assaulted PW-2 on his cheek by means of chopper, accused No.2 caused 12 stab injury to PW-2 by means of knife and when PW-3 went to rescue his father, accused No.3 caused stab injury on the back and stomach by means of knife. Thereafter, when people came there seeing the quarrel, the accused ran away.
11. On perusal of evidence of PW-7, it is seen that nothing has been elicited to discard the testimony of this witness and there is no grudge between this witness and accused but, however he is an interested witness as he was working under PWs-3 and 5 and the same cannot be discarded mechanically.
12. No significant contradictions are established/elicited from the evidence of PW-5, another son of the complainant. From the evidence of PWs-2, 3 and 5 during cross examination, what is relevant to note is that the incident happened at Hosa Guddadahalli, Mysore Road when accused Nos.1, 3 to 13 5 were playing cricket on the road in front of house of PW-2-Srinivasaiah, PW-2 asked them to go and play in the playground and not to cause nuisance, ill will developed between the accused and family of PW-2. Accordingly, on 14.10.2007, when the accused persons were playing cricket in the very same place picked up a quarrel with PW-2 and attacked the complainant.
13. The version spoken by complainant-PW-2, PW-3- Swamy, PW-5-Parthasarathy and PW-7-Avinash B in substance is regarding happening of the incident, presence of the accused and use of the weapons against the complainant and the other injured.
14. Though the version in the complaint is exaggerated to a smaller extent, it does not cause impact on the case, as the complainant in his complaint states that after hitting the complainant, his 14 son, Swamy intervened and at that time, Mani assaulted with knife on his back and stomach whereas, Shekara and Sridhara assaulted him with hands on his face. In the circumstances, the overt act by the accused persons are stated above.
15. Evidence of PW-2-complainant, PW-7-eye witness and PW-3-injured witness, proves the case of the prosecution and it is in corroboration with the complaint-Ex-P3, Report of PW-1-Ex-P2 and Spot Mahazar- Ex-P4.
16. It is necessary to mention that the complaint, wound certificates and evidence of PWs-1 and 3 cannot be brushed aside holding that they are biased or unbelievable.
17. Learned counsel for the appellants is not present before the Court when the matter was taken up for consideration and even while dictating the judgment. 15
18. Insofar as the injuries sustained by PW-2, complainant and PW-3, the son of the complainant, Dr.Vijayashri was examined as PW-8, who has issued the Wound Certificates as per Exs-P7 and P8 respectively.
As per Exhibit P-7, PW-2 sustained following injuries:
a. Abrasion measuring 4x4 cms and 5x3 cms over the left knee.
b. Small incised superficial wound just above the abdomen i.e. (hokkalu) c. Laceration wound over the right cheek measuring 10x1 cms.
And opined that injuries No.1 and 2 are simple in nature and injury No.3 was grievous in nature.
19. The injuries found on the body of PW-3-Swamy, the son of PW-2 as per Ex-P8 are as under: 16
a. Small laceration 0.3x1 cms over left upper eye lid.
b. Laceration just below the abdomen i.e. (hokkalu) measuring 7 cms x 0.5 cms c. Linear abrasion 10 x 2 cms over the left scapular region.
And opined that above said injuries were simple in nature and could be caused in case of assault by MOs. 1 to 3.
20. The distinct offences that are charged against the accused is punishable under Sections 323 and 307 r/w. Section 149 of IPC. However, they were convicted for the offence punishable under Sections 324 and 326 r/w. Section 34 of IPC. Thus, the learned trial Judge, acquitted accused Nos.4 and 5 for the offence punishable under Section 324 and 326 read with section 34 of IPC and the accused Nos.1 to 5 were acquitted for the offence punishable under 17 Sections 143, 148, 323, 307 r/w. Section 149 of IPC. However, they stood convicted for the offence punishable under Section 324 and 326 of IPC.
21. The learned High Court Government Pleader would submit that the complainant was stated to be hospitalized but, the details of hospitalization and the duration of the treatment is not mentioned. He would further submit that Dr.Cheluvanarayana, who was examined as PW-6 does not specify the injuries as stated by PW-8-Dr.Vijayashri, who has issued the wound certificates as at Exs-P7 and P8 which does not indicate whether the injuries were endangering human life or the number of days of hospitalization.
22. On reading of doctors' evidence PWs.6 and 8 regarding the description of injuries on the face of PW-2, the complainant, in my opinion, the injuries fits 18 the offence under Section 324 rather than under Section 326 of IPC. Section 326 reads as under:-
"326. Voluntarily causing grievous hurt by dangerous weapons or means.-- Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with 1 [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."19
Further Section 320 of IPC which defines grievous hurt is 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 ear, 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 severe bodily pain, or unable to follow his ordinary pursuits.20
23. In the context and circumstances of the case, there is nothing to deny the role of the accused No.1 to 3 in attacking the complainant and inflicting injuries on PWs-2 and 3. The accused No.1 to 3 definitely had common intention to commit the offence against the complainant and other witness, keeping six months old vengeance. At the same time, the evidence against the accused Nos.4 and 5 are not present to hold them guilty for any offences and there are no material against accused Nos.4 and 5, for having committed any offence.
24. In the over all circumstances of the case, I do not find infirmity, illegality or lapse in the judgment dated 28.04.2010 passed in S.C.No.154 and 667/2008 by the learned Presiding Officer, Fast Track (Sessions) Judge-V holding the accused Nos.1 to 3 guilty and convicting them for the offence punishable under Sections 324 and 326 r/w. Section 34 of IPC and the 21 prosecution has not established the offence punishable under Sections 143, 148, 323, 307 r/w. Section 149 of IPC.
25. However, the learned Judge has erred in sentencing the accused Nos.1 to 3 to undergo rigorous imprisonment for three years. Further, the conviction of the accused Nos.1 to 3 for the offence punishable under Section 326 r/w. Section 34 of IPC is set aside and the accused persons are acquitted of the said charges. However, accused Nos.1 to 3 are found guilty for the offence punishable under Section 324 r/w. Section 34 of IPC.
26. In the circumstances, the accused/appellants herein are liable to undergo simple imprisonment for one year and to pay a fine of Rs.1,000/- each, in default, to undergo simple imprisonment for three months. The period of custody, if any spent by the 22 appellants be set off against the sentence imposed herein. Thus, I proceed to pass the following:
ORDER i. Criminal appeal is allowed in part.
ii. The Judgment convicting the
accused/appellants in S.C.Nos.154/2008
and 667/2008 for the offence punishable under Section 326 r/w. Section 34 is hereby set aside and the accused persons are acquitted and set at liberty for the said offence.
iii. The accused persons are liable to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1,000/- each for the offence punishable under Section 324 of IPC read with Section 34 of IPC and 23 in default to pay fine amount, to undergo simple imprisonment for three months.
Office is hereby directed to send back the trial Court records along with a copy of the judgment, to enable the learned trial Judge to proceed with the further formalities.
Sd/-
JUDGE SBN/ST