Karnataka High Court
State Of Karnataka vs Manjappa, S/O.Halanaika, on 18 December, 2013
Author: K. Bhakthavatsala
Bench: K. Bhakthavatsala
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 18TH DAY OF DECEMBER 2013
PRESENT
THE HON'BLE DR. JUSTICE K. BHAKTHAVATSALA
AND
THE HON'BLE MR.JUSTICE PRADEEP D. WAINGANKAR
CRIMINAL APPEAL NO.685/2009
BETWEEN:
STATE OF KARNATAKA
MALUR POLICE STATION,
THIRTHAHALLI.
...APPELLANT
(BY SRI K.R. KESHAVA MURTHY, ADDL SPP.)
AND:
1. MANJAPPA
S/O HALANAIKA,
AGED ABOUT 55 YEARS,
AGRICULTURIST,
R/O YOGIMALALI,
THIRTHAHALLI TALUK.
2. K.S. INDRAPPA
S/O SANNANAIKA,
AGED ABOUT 22 YEARS,
R/O, KESAVINAMANE,
VATAGARU VILLAGE,
THITHAHALLI TALUK.
3. SHIVARAMA S/O SANNANAIKA,
AGED ABOUT 25 YEARS,
2
AGRICULTURIST,
R/O, KESVINAMANE,
VATAGARU VILLAGE,
THIRTHAHALLI TALUK.
... RESPONDENTS
(BY SRI. S.G. RAJENDRA REDDY, ADV.,)
THIS CRIMINAL APEPAL IS FILED UNDER
SECTION 378 (1) & (3) CR. P.C. PRAYING TO GRANT
LEAVE TO APPEAL AGAINST THE JUDGEMENT AND
ORDER OF ACQUITTAL DATED 31.01.2009 PASSED
BY THE PRL. SESSIONS JUDGE, SHIMOGA, IN
SESSIONS CASE NO. 81/2007, THEREBY ACQUITTING
THE ACUSED/RESPONDENT NOS. 1 TO 3 FOR THE
OFFENCES P/U/S 342, 326, 307 R/W 34 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR
HEARING THIS DAY, DR. K. BHAKTHAVATSALA J., ,
DELIVERED THE FOLLOWING:-
JUDGMENT
In this appeal filed under Section 378 (1) and (3) of Cr.P.C., the State is before this Court questioning the correctness of the judgment dated 31.01.2009 made in S.C.No.81/2007 on the file of the Principal Sessions Judge at Shimoga.
2. Respondent Nos.1 to 3 are herein after referred to as accused Nos.1 to 3, respectively as arrayed in the Sessions case.
3
3. Brief facts of the case leading to the filing of the appeal may be stated as under:
The respondents/accused faced trial before the Sessions Court for the offences punishable under Sections 342, 326 and 307 r/w Section 34 of IPC. It is the case of prosecution that PW6-Gurumurthy came in the way of performing the marriage of accused No.1's daughter with one Shekar scheduled to be held on 12.06.2005. Hence, the accused tied PW6 to a tree using plastic rope situated near compound of the accused and assaulted him with iron crowbar-MO1, sickle-MO2. Accused pleaded not guilty and claimed to be tried.
Prosecution has got examined as many as 13 witnesses, got marked 11 documents and got exhibited 6 material objects. After the evidence on the side of the prosecution was closed, statement of the accused under Section 313 of Cr.P.C. was recorded. Accused have denied all incriminating circumstances appearing in the 4 evidence of prosecution witnesses. Accused have not adduced any defence evidence.
The trial Court after hearing arguments, perusing the oral and documentary evidence on record, convicted all the three accused for the offence punishable under Section 335 r/w Section 34 of IPC, while acquitting the accused for the offence punishable under Section 504 of IPC. After hearing on the point of the sentence, by order dated 31.01.2009 released the accused under Section 4 of Probation of Offenders Act. After the receipt of report from the Probation Officer, by order dated 10.06.2009 the accused Nos.1 to 3 were released under Section 3 of Probation of Offenders Act, 1958. This is impugned in this appeal.
4. Learned Additional SPP submits that the trial Court erred in not convicting the accused under Section 326 of IPC. He submits that PW6-the victim was tied to a tree with a plastic rope (MO3) and thereafter assaulted him with deadly weapon and if PW1 5 had not gone to his (PW6) rescue, he would have died and therefore the act of the accused attracts the offence punishable under Section 326 of IPC, but the trial Court erred in convicting the accused under Section 335 of IPC though there was no such material on record to show that there was any grave and sudden provocation for the accused to commit such crime. He further submits that even if the judgment of the trial Court insofar as convicting the accused for the offence punishable under Section 335 of IPC is maintained, the trial Court erred in releasing the accused under Section 4 of Probation of Offenders Act.
5. Learned counsel appearing for the respondents/accused submits that the trial Court on proper appreciation of evidence on record has reached the conclusion that the incident occurred due to grave and sudden provocation and therefore act of the accused was brought under Section 335 of IPC and since offence is not punishable with death or 6 imprisonment for life, the accused was released under the Probation of Offenders Act.
6. In view of the arguments addressed by the learned counsel for the parties, the only point that arise for our consideration is:-
"Whether the impugned judgment calls for our interference?"
7. Our answer to the above point is in the negative for the following reasons.
At the very out set, it must be mentioned that after PW1-Complainant came to know about her brother PW6-Gurumurthy was tied up to a tree situated near the compound of the accused, she and her grandmother went to the accused and unroped and took him to hospital for treatment. Initially, she lodged a complaint against three persons and others. FIR-Accused No.3 by name Shekar is the person who supposed to marry accused No.1's daughter-Suvarna on 12.06.2005. According to the prosecution, the incident occurred on 7 12.06.2005, at about 5.00 pm, after marriage of Suvarna (accused No.1's daughter) with FIR accused No.3-Shekar was over. The investigating Officer laid charge-sheet against FIR-accused Nos.1 and 2, by giving up the accused No.3-Shekar and in his place one Shivarama was added as accused No.3. Out of 13 witnesses examined by the prosecution, eye witnesses PW4-Thammaiah, PW5-Venkatesha, PW8-Shivanaika and PW11-Ravi Hegde have turned hostile to prosecution. The trial Court accepted the evidence of PW1-the complainant, PW6-the victim, his mother-PW9 and other official witnesses and convicted the accused for the offence punishable under Section 335 of IPC. Keeping in view that PW6 attempted to spoil the marriage of accused No.1's daughter with one Shekar, there appears to be a grave and sudden provocation and as a result of which the incident occurred. On account of assault made by accused, PW6 sustained in all three injuries (vide wound certificate at Ex-P6) namely 8
i) Linear lacerated wound from the right nostril to the upper lip exposing the nasal bone and the gum;
ii) Fracture of proximal phalynx thumb (R);
iii) Commuted fracture right tibia and fibula.
Medical officer has opined that injury No.1 is simple in nature. Injury Nos.2 and 3 are grievous in nature. Fracture of proximal phalynx right thumb would not attract an offence under Section 326 of IPC. The contention of learned Additional SPP that the act of the accused would constitute offence under Section 326 of IPC is without any merit. Therefore, the trial Court is justified in convicting the accused under Section 335 of IPC. Keeping in view the sudden and grave provocation by PW6-the injured and it is not an offence punishable with death or imprisonment for life, the trial Court ordered to release the accused under Section 4 of Probation of Offenders Act after obtaining report from the Probation Officer and the same does not call for interference by this Court.
9
In the result, we pass the following order. Appeal fails and the same is hereby rejected.
Sd/-
JUDGE Sd/-
JUDGE PMR