Karnataka High Court
Chandra @ Chandrashekara vs State Of Karnataka on 22 March, 2022
Bench: Mohammad Nawaz
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL No.416 OF 2011
BETWEEN:
1. CHANDRA @ CHANDRASHEKARA,
S/O. LATE RAMACHANDRARAO,
AGED 38 YEARS,
2. ARJUN S/O. VISHWANATHAN,
AGED 32 YEARS,
BOTH ARE RESIDING AT
D.NO.2573, 4TH CROSS,
CHAMUNDIPURAM, MYSORE.
... APPELLANTS
[BY SRI.RAJENDRA PRASAD, SR.COUNSEL FOR
SRI KEERTHIKAR, ADV. FOR APPELLANT NO.2,
APPELLANT NO.1 ABATED VIDE ORDER DATED 11.08.2021]
AND:
STATE OF KARNATAKA
BY VIJAYANAGAR POLICE STATION,
MYSORE. ... RESPONDENT
[BY SRI.R.D.RENUKARADHYA, HCGP]
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED
29.03.2011 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS
JUDGE, MYSORE, IN S.C.NO.135/2009-CONVICTING THE
APPELLANTS/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTIONS 341, 364 AND 324 READ WITH SECTION 34 OF IPC AND
THE APPELLANTS/ACCUSED ARE SENTENCED TO UNDERGO R.I.,
FOR A PERIOD OF ONE MONTH FOR THE OFFENCE PUNISHABLE
UNDER SECTION 341 READ WITH SECTION 34 OF IPC AND ETC.
2
THIS CRIMINAL APPEAL COMING ON FOR HEARING
THROUGH VIDEO CONFERENCE / PHYSICAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
against the Judgment and Order dated 29.03.2011
passed by the Court of Principal District and Sessions
Judge at Mysuru in SC No.135/2009.
2. Both the accused are convicted and sentenced
for the offences punishable under Sections 341, 364, 324
r/w 34 IPC and acquitted of the offence punishable under
Section 307 of IPC.
3. During the pendency of this appeal, accused
No.1 was reported to be dead. Hence, the appeal stood
abated as against the said accused vide order dated
11.08.2021.
4. Heard the learned Senior counsel appearing
for appellant-accused No.2 and the learned HCGP for
respondent-State and perused the material on record.
5. It is the case of prosecution that on
24.01.2008 at about 4.15 p.m. when CWs.1 to 3
i.e., PWs.1 to 3 were proceeding by walk on Field
Marshal Cariappa Road in Vijayanagara, Mysuru, the
accused persons wrongfully restrained them and
abducted CW.1 in their Maruthi Car and took him to a
remote area with an intention to kill him and pierced
knife to his stomach and caused grievous injuries to him.
6. Statement of the injured/PW.1 was recorded
by the PSI-PW.10 from the Hospital and on that basis a
case was registered against both the accused. The said
statement is marked as Ex.P1. Accused No.1 was
arrested on 26.01.2008 and his voluntary statement as
per Ex.P12 was recorded. The Maruthi Car as well as the
knife used for the commission of offence have been
seized under Ex.P8. After the injured was discharged
from the hospital, the spot mahazar from where he was
abducted as well as the spot where he was stabbed with
knife were prepared as per Exs.P2 and 3 respectively in
the presence of punch witnesses.
7. In order to establish the guilt of the accused,
the prosecution got examined PWs.1 to 10 and got
marked documents as Exs.P1 to P12 and MOs.1 to 3.
The defence got examined DWs.1 to 3.
8. The Trial Court has come to the conclusion
that PWs.1 to 3 and the medical evidence supports the
case of prosecution and the defence taken by the
accused that the injury sustained by PW.1 is
self-inflicted injury is not substantiated. The Trial Court
was of the view that the injury caused to PW.1 was not
with force and if the accused had really intended to take
away the life of PW.1 and since he was alone and the
accused persons are two in number, they would have
inflicted more injury. Taking into consideration the
evidence of PW.5-Doctor and the nature of injury
inflicted to PW.1, the Trial Court was of the view that the
prosecution has not proved the offence punishable under
Section 307 of IPC. The said finding has become final
as there is no appeal preferred by the State. The Trial
Court has however come to the conclusion that the
accused are liable to be convicted for the offences
punishable under Sections 341, 324, 364 r/w 34 IPC.
9. It is the contention of the learned Senior
counsel appearing for appellant No.2 / accused No.2 that
even according to the prosecution, the motive is
attributed against accused No.1 and there is absolutely
no ill-will or motive for accused No.2 to commit any
offence against PW.1. He contends that FIR does not
indicate that PW.1 was forcibly taken by the accused or
he was under any threat. He contends, even from the
evidence of the prosecution witnesses, it cannot be held
that PW.1 was forcibly taken or abducted by the accused.
He submits that the seizure of weapon-MO3 is not at the
instance of accused No.2 and therefore, it cannot be said
that it was accused No.2 who inflicted injury to PW.1 and
since the weapon is not recovered at his instance, the
case of the prosecution that the said weapon was used
by accused No.2 cannot be accepted. He further
contends that as per Ex.P1, PW.1 has gone to the police
station immediately after the incident and narrated the
incident to the police. However, the said statement has
not been received as FIR and therefore, a serious doubt
arises about the case of prosecution. He contends that
there are inconsistencies in the evidence of prosecution
witnesses, which has not been properly appreciated by
the Trial Court and therefore, submits that the conviction
and sentence has resulted in miscarriage of justice.
10. The learned HCGP, on the other hand, has
contended that the victim who is examined as PW.1 has
categorically stated that both the accused forcibly took
him in their vehicle to a remote place and accused No.2
stabbed him on his abdomen and further contends that
the evidence of PW.1 is sufficient to hold that the
accused is guilty of the offence for which the Trial Court
has convicted and sentenced. He contends that, PW.1
being the injured and the injuries having been
corroborated by the wound certificate issued by PW.5,
there is no reason to disbelieve his evidence. He
contends that the trial Court having appreciated the
entire oral and documentary evidence has rightly
convicted and sentenced the accused. Hence, he has
sought for dismissal of the appeal.
11. The first informant who has been examined as
PW1 has deposed in his evidence that he knew accused
No.1 since 10 years and through him he knew accused
No.2. From accused No.1, he had obtained a loan of
Rs.1,00,000/- about a year and half prior to the incident
in question. He was periodically giving the interest to
him and in the year 2007 accused No.1 demanded him to
return the amount for that he assured him that he will
return the amount on 20.01.2008. However, he had
sought further 2-3 days time and told accused No.1 that
he would return the amount on 24.01.2008 at 7.00 p.m.
On 24.01.2008, at about 4.15 p.m., while he was
proceeding at General Cariappa Road along with his wife
he met one Wasim who is known to him for the past
10-15 years and when they were proceeding further,
near Kalidasa Road, accused Nos.1 and 2 came in a
Maruthi Car and stopped the Car near them and called
him. Further, accused No.2 forcibly pushed him inside
the car and they took him towards Hinkal in the said Car.
He has stated that at that time accused No.1 was driving
the Car and accused No.2 was sitting along with him in
the back seat. Accused No.2 forcibly made him to drink
rum and they told him that he is not giving the money
and just playing around. They took him to a remote
place and stopped the Car, thereafter, stating that he is
cheating and they will not leave, accused Nos.2 took a
folding knife from his pocket and stabbed on his stomach
while accused No.1 was holding him.
12. The incident is said to have taken place
between 4.15 p.m. and 4.45 p.m. on 21.04.2008.
According to PW.1, on account of stabbing he sustained
bleeding injuries and became unconscious and regained
conscious at about 9.00 p.m. In Ex.P1, he has stated
that while he was walking, a person took him in a
scooter and brought him near Hinakal road and from
there he went to Vijayanagar Police Station and informed
the matter to the police. Since he was bleeding, the
police took him to K.R.Hospital and got him admitted
there.
13. It is the contention of learned Senior Counsel
that when PW.1 has specifically stated that he went to
the police station and narrated the incident to the Police,
the police should have recorded his statement. He
contends that Ex.P1-statement of the injured recorded
from the hospital, therefore cannot be treated as FIR. He
contends that the earliest narration of the incident has
been suppressed by the prosecution.
14. It is relevant to see that PW.1 sustained
injury to his abdomen and he was bleeding when he
went to the police station. The police after seeing his
condition, have shifted him to the hospital immediately,
wherein he was admitted as an in-patient. Thereafter,
the police have gone to the hospital and recorded his
statement as Ex.P1. In that circumstances, PW.1
sustaining injuries and accused No.2 causing the said
injury cannot be doubted. The blood stained clothes-
MOs.1 and 2 of the injured have been seized under a
mahazar. The defence of the accused is that the injury
is self-inflicted by PW.1. PW.1 has categorically denied
the said suggestion made to him. It is relevant to see
that no such suggestion was made to PW.5-Doctor that
the injury found in Ex.P1 is a self-inflicted injury.
15. The further contention of the learned Senior
Counsel is that the ingredients of the offence punishable
under Sections 341 and 364 of the IPC are not made out
against the accused. He contends that PW.1 was only
made to sit inside the Car and not forcibly and therefore,
contends that the case of the prosecution that the
accused restrained PWs.1 to 3 and forcibly took PW.1 in
the car is a false story.
16. A careful perusal of Ex.P1 goes to show that
when PW1 was proceeding by walk along with PWs.2 and
3, the accused persons came in a Maruthi Car and
stopped the van in front of them. Accused No.1 asked
PW.1 to return the amount and when he said he would
return the money at 7.00 p.m., the accused forcibly
made him to sit inside the Car and took him to a remote
place. In his evidence, PW.1 has stated that accused
No.2 opened the rear door of the car and pushed him
inside and locked the door and thereafter took him
towards Hinkal. The evidence of PW.1 in this connection
is corroborated by the evidence of PWs.2 and 3. Hence,
it is clear from the material on record that the accused
have voluntarily obstructed and prevented PW.1 who was
proceeding by walk and then forcibly took him in their
vehicle and accused No.2 inflicted injury to PW1 on his
abdomen with a knife.
17. It is vehemently contended by the learned
Senior counsel that the Trial Court has acquitted the
accused of the charged offence punishable under Section
307 of IPC and therefore, Section 364 cannot be
invoked. It is his contention that under Section 364 of
IPC, abduction or kidnapping of any person must be in
order that such person may be murdered and since the
Trial Court has acquitted the accused of the offence
punishable under Section 307 of IPC, the ingredients of
Section 364 of IPC are not made out.
18. Though it is elicited in the cross examination
of PW.2 that she did not question the accused when her
husband was forcibly taken and she thought that for
discussing some issue her husband was taken, however,
she has stated that her husband was forcibly taken in the
van and she did not panic because even earlier he was
taken by the accused in a similar fashion. From the
evidence of PWs.1 to 3 it can be clearly gathered that
PW.1 did not accompany the accused on his own or he
went along with them willingly. On the other hand, he
was forced to sit in the van and taken by the accused
persons.
19. The trial Court has acquitted the accused of
the charged offence punishable under Section 307 of IPC
and instead convicted under Section 324 of IPC. It is
observed by the trial Court that PW.1 was alone in the
vehicle and the accused persons are two in number. If
they really intended to take away his life they would
have inflicted severe injuries, whereas the injury inflicted
to PW.1 according to PW.5 is only one injury.
20. Ex-P9 is the wound certificate pertaining to
PW-1. PW-1 has sustained a stab injury measuring 2cm
x 0.25cm middle and 0.5cm depth. Injury is stated to be
simple in nature. In the facts and circumstances of the
case and also considering the nature of injury sustained
by PW.1, it is difficult to come to a conclusion that the
accused have abducted PW.1 in order to commit his
murder or to put him in danger of being murdered. The
prosecution has failed to establish the ingredients of
Section 364 of IPC and therefore, the reasons assigned
by the trial Court and the conclusion arrived for
convicting the accused for the offence punishable under
Section 364 of IPC is not proper.
21. From the evidence of PWs.1, 2 and 3 and the
medical evidence, the prosecution has been able to
establish that the accused wrongfully restrained PW.1
and took him in their vehicle forcibly and caused simple
injury with MO-3 and therefore, the findings recorded by
the trial Court in respect of offence punishable under
Section 341 and 324 read with 34 of IPC is in accordance
with law.
22. Admittedly, accused No.1 is no more. The
appeal against accused No.1 has abated. The incident
took place in the year 2008. Already 14 years have
passed. Except the case on hand there is no criminal
antecedents against accused No.2. The motive is also
attributed against accused No.1.
23. Section 341 is punishable with simple
imprisonment for a term which may extend to one month
or with fine which may extend to Rs.500/- (Rupees Five
Hundred only) or with both.
24. Section 324 is punishable with imprisonment
of either description for a term which may extend to
three years or with fine or both.
25. Considering the entire facts and
circumstances of the case this Court is of the view that
sending accused No.2 to prison at this stage will not
serve any purpose and instead the substantial fine
amount may be imposed against him. Hence, the
following:
ORDER
The appeal is allowed in part.
i. Appeal against accused No.1 is abated. The
judgment and order dated 29.03.2011, passed by the
Court of the Principal District and Sessions Judge, Mysore
in Sessions case No.135/2009, convicting and sentencing
accused No.2 for the offence punishable under Section
364 read with 34 of IPC is hereby set aside.
ii. The conviction of accused No.2 for the offence
punishable under Sections 341 and 324 read with
Section 34 of IPC is confirmed.
iii. The sentence imposed against accused No.2
for the offences punishable under Section 341 and 324
read with 34 of IPC is modified.
iv. Accused No.2 is sentenced to pay a fine of
Rs.500/- (Rupees Five Hundred only) for the offence
punishable under Section 341 of IPC and in default of
payment of fine to undergo simple imprisonment for a
period of 15 days.
v. Accused No.2 is sentenced to pay a fine of
Rs.20,000/- (Rupees Twenty Thousand only) and in
default of payment of fine to further undergo simple
imprisonment for a period of six months for the offence
punishable under Section 324 of IPC read with 34 of IPC.
vi. If the fine amount is realized, a sum of
Rs.15,000/- (Rupees Fifteen Thousand only) shall be
paid to PW.1 Sri. D. Thirumurthy, as compensation.
Sd/-
JUDGE
TL/JY
