Karnataka High Court
Nandisha vs State Of Karnataka on 14 August, 2023
Bench: Shivashankar Amarannavar
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CRL.A No. 492 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO. 492 OF 2012
BETWEEN:
1. NANDISHA ,
S/O NAGAPPA,
AGED ABOUT 30 YEARS,
GOODS TEMPO DRIVER,
HARALIKATTE VILLAGE,
CHAMARAJANAGAR TALUK,
PRESENTLY RESIDING AT
GATTAVADI VILLAGE,
NANJANGUD TALUK.
2. BABU,
S/O RAMU KUTTI,
AGED ABOUT 30 YEARS,
GOODS TEMPO DRIVER,
RESIDING AT NO.146/14,
6TH MAIN, 3RD CROSS,
VIDYARANYAPURAM,
Digitally signed by MYSORE.
LAKSHMINARAYANA
MURTHY RAJASHRI
Location: HIGH 3. UMESH,
COURT OF
KARNATAKA S/O LAKSHMIGOWDA,
AGED ABOUT 26 YEARS,
GOODS TEMPO DRIVER,
RESIDING AT NO.437,
2ND CROSS, DODDAVAKKALIGERI,
K.R.HOSPITAL ROAD,
MYSORE.
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CRL.A No. 492 of 2012
4. GURU,
S/O RAMANNA,
AGED ABOUT 30 YEARS,
RESIDING AT NO.101,
JAYANAGAR, MYSORE.
5. SHASHI KUMAR,
S/O GURULINGAPPA,
AGED ABOUT 35 YEARS,
AGRICULTURIST, MOODANAKUDU VILLAGE,
CHAMARAJNAGAR TALUK,
CHAMARAJNAGAR DISTRICT.
...APPELLANTS
(BY SRI G. JAIRAJ, ADVOCATE)
AND:
STATE OF KARNATAKA,
BY CHAMARAJANAGAR RURAL POLICE.
...RESPONDENT
(BY SRI RAHUL RAI K, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT
DT.17.4.2012 PASSED BY THE DIST., AND S.J.
CHAMARAJANAGAR IN S.C.NO.29/2009-CONVICTING THE
APPELLANTS/ACCUSED FOR THE OFFENCE P/U/S 143, 147,
148, 324, 323, 448, 504 AND 307 OF IPC AND ETC.,
THIS APPEAL COMING ON FOR DICTATING JUDGMENT
THIS DAY THE COURT DELIVERED THE FOLLOWING:
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CRL.A No. 492 of 2012
JUDGMENT
This appeal is filed by accused Nos.1 to 5 praying to
set-aside the judgment and sentence dated 17.04.2012
passed in Sessions Case No.29/2009 by the District and
Sessions Judge, Chamarajanagar.
2. Appellants No.1 to 5 were convicted for the
offences punishable under Sections 143, 147, 148, 324,
323, 448, 504 and 307 read with 149 Indian Penal Code
(for short hereinafter referred to as 'IPC'). Accused Nos.1
to 5 were sentenced to undergo imprisonment for a period
of six months and pay fine of Rs.1,000/- in default to
undergo further imprisonment for one month for offence
under Section 143 of IPC; further sentenced to undergo
imprisonment for one year and to pay fine of Rs.2,000/- in
default to undergo further imprisonment for the period of
two months for offence under Section 147 read with
Section 149 IPC; further sentenced to undergo
imprisonment for a period of two years and to pay fine of
Rs.3,000/- each in default to undergo further
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CRL.A No. 492 of 2012
imprisonment for a period of three months for the offence
under Section 148 read with Section 149 of IPC; further
sentenced to undergo imprisonment for a period of three
years and to pay fine of Rs.4,000/- each and in default to
undergo further imprisonment for a period of four months
for offence under Section 324 read with Section 149 of
IPC; further sentenced to undergo imprisonment for a
period of one year and to pay fine of Rs.2,000/- each in
default to undergo imprisonment further for a period of
two months under Section 323 read with Section 149 IPC;
further sentenced to undergo imprisonment for a period of
one year and to pay fine of Rs.1,000/- each in default to
undergo further imprisonment for one month for offence
under Section 448 read with Section 149 IPC; further
sentenced to undergo imprisonment for a period of two
years and to pay fine of Rs.2,000/- each in default to
undergo further imprisonment for a period of two months
under Section 504 read with Section 149 IPC and further
sentenced to undergo imprisonment for a period of four
years for the offence punishable under section 307 read
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CRL.A No. 492 of 2012
with Section 149 IPC and pay fine of Rs.25,000/- each in
default to undergo further imprisonment for a period of
five months under Section 307 read with Section 149 of
IPC.
3. The factual matrix of the case is that PW-1
Mahesha married one Renuka, the sister of accused No.1
and out of the wedlock, they have 2½ years old male
child. Since there was galata on domestic matter, Renuka
got angry and went to her parents house. When father of
PW-1 i.e., PW-2 and one Koosappa went to bring Renuka
back, the family members of Renuka abused them and
sent them back. The complainant (PW-1) - the husband of
Renuka did not go to bring back his wife Renuka stating
that she herself has gone and she herself has to come
back. That on 14.08.2008 at about 9.30 pm when PW-1
was standing in front of his house, accused No-1 the elder
brother of Renuka along with his friends accused
Nos.2 to 5 came in goods tempo holding long choppers
and accused No.1 abused PW-1 in filthy language and
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slashed long chopper on the neck of PW-1 and he escaped
trespassed into the house and dragged out PW-2, the
father of PW-1. Upon hearing the noise, the neighbours
came. Accused Nos.1 and 2 threw long choppers. Accused
No.1 made PW-2 to fall on the ground and assaulted him
with hands and also bit on his stomach. At that time, PW-
3 Rathnamma, the aunt of PW-1 intervened to pacify the
quarrel. At that time accused No.1 slapped her on her
cheeks and accused Nos.3 and 4 kicked and trampled her.
A case came to be registered against accused Nos.1 to 5,
who are appellants herein in Crime No. 152/2008 of
Chamrajnagar Rural Police Station. After investigation
charge sheet came to be filed against the
appellants/accused Nos.1 to 5 for the offences under
Sections 143, 147, 148, 307, 323, 324, 448 and 504 read
with Section 149 of IPC. The case came to be committed
to the Sessions Court. The Sessions Court framed charges
for the said offences. The prosecution has examined 12
witnesses as PW-1 to PW-12 and got marked 11
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documents as Ex.P-1 to Ex.P-11 and three Material
Objects as MOs 1 to 3. The statement of the
appellants/accused came to be recorded under Section
313 of Cr.P.C.
4. After hearing the arguments on both sides, the
trial Court framed the points for consideration and
convicted the appellants for the offence punishable under
Sections 143, 147, 148, 323, 324, 448, 504, 307 read
with Section 149 of IPC. To the said judgment of
conviction, order of sentence has been challenged by
appellants/accused Nos.1 to 5.
5. Heard the arguments of learned counsel for the
appellants and learned High Court Government Pleader for
the respondent-State.
6. Learned counsel for the appellants wound
contend that there was a matrimonial dispute between
PW-1 and his wife Renuka and therefore, Renuka had gone
to her parents house and PW-1 did not go to bring her
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back and therefore, it is alleged that enraged by that
accused No.1 along with other accused came in a tempo
and assaulted PWs-1 to 3. PW-1 is the brother-in-law of
accused No.1 and there is no question of attempt to
commit his murder as he is wife's husband and they have
a child. The alleged act of accused No.1 slashing long
chopper on the neck of PW-1 and he escaping is a
concocted story. The seizure of MO-1 and MO-3 -long
choppers have not been proved as the panchas PW-7 and
PW-10 turned hostile. PW-1 has not sustained any injury
in the alleged incident. The injuries sustained by PW-2 and
PW-3 as per the wound certificates at Ex.P-5 and Ex.P-6
are simple injuries. He further contended that there are
contradictions in the evidence of PWs1 to 3 and PWs 4 to
6, who are stated to be the eye- witnesses to the incident.
As per the evidence of PWs 4 to 6, accused Nos.1 and 2
were caught on the spot and they were tied to a tree but
as per the case of the prosecution, they were arrested on
18.08.2008. No specific overt act has been alleged
against accused Nos.2 to 5. It is alleged that accused
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No.1 bit on the stomach of PW-2 but as per the wound
certificates, there is no mention that the wound sustained
by PW-2 is a bite wound. He submits that it is not
possible to bite on the stomach. On looking to the
evidence of PWs.1 to 6 and their cross-examination, the
alleged act of accused No.1 slashing with long chopper on
the neck of PW1 and he escaping, is not established and
their evidence in that regard is not believable. If their
would have been any intention on the part of accused No.1
to kill PW-1, he ought to have made further attempts to
assault him with the long chopper. As PW.1 has not
sustained any injury, the offence under Section 307 is not
attracted. On that point, he places reliance on the
decision of the Hon'ble Apex Court in the case of
SAGAYAM vs. STATE OF KARNATAKA reported in AIR
2000 SC 2161 wherein it is held as under:
"6. To justify conviction under this Section
under S.307, IPC, it is not essential that bodily injury
capable of causing death should have been inflicted.
An attempt in order to be criminal need not be the
penultimate act foreboding death. It is sufficient in
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law if there is present an intent coupled with some
overt act in execution thereof, such act being
proximate to the crime intended and if the attempt
has gone so far that it would have been complete but
for the extraneous intervention which frustrated its
consummation. There are different stages in a crime.
First intention to commit it; second preparation to
commit it; third, an attempt to commit it. If at the
third stage, the attempt falls, the crime is not
complete but law punishes for attempting the same.
An attempt to commit crime must be distinguished
from an intent to commit it or preparation of its
commission.
7. ASI Rajanna P.W.2 was deputed to
search the house of the appellant along with two
other members of his staff. When he went to the
house of the appellant along with the other officers,
the accused tried to assault them. He somehow
escaped from the assault. Again accused is said to
have tried to pierce with a sword but he escaped that
assault and caught hold of him but then he
threatened that he would kill. This is all the evidence
that have been given by the ASI which would only
mean that there was only a threat to assault the said
Rajanna but the overt acts attributed to him would
not amount to attempt to murder, at best it can be
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one of attempt to assault but there is not even an
injury upon the victim.
8. A charge of this nature when there is not
even an injury upon the victim cannot lead to an
inference that there was any attempt to kill when the
incident took place. It is possible that the accused
confronted the ASI Rajanna but that by itself would
not result in coming to the conclusion that it was an
attempt to murder him''.
7. It is his further submission that there are
contradictions in the evidence of the witnesses, the
prosecution has failed to prove the offence alleged against
them. If the Court comes to the conclusion that the
appellants have committed the offence under Sections
143, 144, 147, 148, 324, 323, 448, 504 read with Section
149 IPC, then the Court can impose the sentence of the
period already undergone by them and may enhance the
fine amount.
8. Learned High Court Government Pleader argued
that the trial Court on proper appreciation of the evidence
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on record has rightly convicted the appellants. He has
supported the reasons assigned by the trial Court. He
further argued that evidence of PWs.1 to 6 is suffice to
convict the appellants for the offence levelled against
them. He contended that inflicting of bodily injury capable
of causing death is not always necessary. Intention or
knowledge can be ascertained from other circumstances.
On that point he relied on the decision of the Hon'ble Apex
Court in the case of R PRAKASH vs. STATE OF
KARNATAKA reported in AIR 2004 SC 1812 wherein it
is held as under:
"9. It is sufficient to justify a conviction under
Section 307 if there is present an intent coupled with
some overt act in execution thereof. It is not
essential that bodily injury capable of causing death
should have been inflicted. Although the nature of
injury actually caused may often give considerable
assistance in coming to a finding as to the intention
of the accused, such intention may also be deduced
from other circumstances, and may even, in some
cases, be ascertained without any reference at all to
actual wounds. The Section makes a distinction
between the act of the accused and its result, if any.
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The Court has to see whether the act, irrespective of
its result, was done with the intention or knowledge
and under circumstances mentioned in the Section.
Therefore, it is not correct to acquit an accused of
the charge under Section 307 IPC merely because
the injuries inflicted on the victim were in the nature
of a simple hurt".
9. On these grounds, he sought for dismissal of
the appeal.
10. On the grounds made out and considering the
arguments advanced, the following points arises for my
consideration:
(1) Whether the trial Court has erred in
convicting the appellants/accused Nos.1 to 5 for
offence punishable under Sections 143, 147, 148,
323, 324, 448, 504 read with Section 149 of IPC?
(2) Whether the trial Court has erred in
convicting the appellants/accused Nos. 1 to 5 for the
offence punishable under Section 307 read with 149
of IPC?
11. My answer to point No.1 is in the negative and
point No.2 is in the affirmative for the following reasons:
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12. PW-1 is married to one Renuka - the younger
sister of accused No.1. It is not in dispute that there was
quarrel between PW-1 and his wife Renuka and she went
to her parents house. She refused to go back when PW-2
and another went to her parents house. PW-1 did not go
to bring her back and therefore, appellant No.1/accused
No.1 was enraged against PW-1. As per the case of the
prosecution, appellants/accused Nos.1 to 5 came in tempo
to the house of PW-1 on 14.08.2008 at about 9.30 p.m. It
is the evidence of PWs.1 to 6 that accused Nos.1 to 5
came in tempo and trespassed into the house of PW.1. As
per the evidence of PW-1, accused Nos.1 and 2 were
holding long choppers and accused No.1 slashed the long
chopper on his neck and he escaped. The police seized
the chopper - MO-1 produced by PW1 at the time of
drawing the spot mahazar - Ex.P.2. The police also seized
another chopper - MO3 produced by PW1 which has been
given to him by one Madappa after three days of the
incident. MO.1 has been seized on 16.08.2008 on the
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third day of the incident and MO3 - chopper has been
seized on 23.08.2008. PWs.7 and 10 have been examined
to prove the seizure of MO1 and MO3 - long choppers but
they have not supported the case of the prosecution.
Therefore, the prosecution has failed to establish the
seizure of MO-1 and MO-3-the long choppers under
Mahazars Exs.P.2 and 3 respectively.
13. PW.2 has deposed regarding the slashing of
long chopper by accused No.1 on the neck of PW1 and he
escaped the same. PW3 has deposed that accused No.1
slashed with the chopper on the neck of PW1 and he
escaped and ran away. PW4 has deposed that accused
No.1 tried to assault PW1 with chopper, he escaped and
ran away. PW5 has deposed that accused No.2 - Babu
tried to assault PW1 with a long chopper and at that time,
he took long chopper from accused No.2 and PW1 ran
away from the spot. But in his cross examination after
treating him as hostile, he has admitted the suggestion
that accused No.1 tried to assault PW1 with chopper and
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he escaped and ran away. In the cross examination by
the counsel for the accused, he again stated that accused
No.2 tried to assault PW1 with long chopper but he
escaped and the long was handed over to the police in the
spot on the date of the incident at about 10 p.m. The
evidence of PW.5 is in contradiction to the evidence of
PWs.1 to 4. PW.6 has not stated with regard to accused
No.1 slashing with long chopper on the neck of PW1 in his
chief examination but after treating him hostile however,
in the cross-examination he has admitted the suggestion
that accused No.1 abused PW1 and tried to assault with
long chopper but PW1 escaped. In the cross examination
by the accused, he has stated that he was outside the
house when accused No.1 tried to assault PW1. If accused
No.1 had an intention to kill PW1, he ought to have chased
PW1 and again made an attempt to assault him with the
chopper. Looking to the evidence on record and the close
relationship of accused No.1 and PW1, PW1 has not
sustained any injury and even the other two witnesses i.e.
PWs 2 and 3 have not been assaulted with long choppers
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CRL.A No. 492 of 2012
by the accused, would go to show that accused were not
having any intention to commit murder of PW1 or other
witnesses. Even it is stated by PWs 1 to 6 that police
came to the spot on the day of the incident and therefore,
the seizure of MOs 1 and 3 - long choppers subsequently
on 16.08.2008 and 23.08.2008 under Exs.P.2 and 3
alleged to be snatched from them at the time of accident
appears to be doubtful. Therefore, the appellants entering
the house of PW-1 holding long choppers with an intention
to kill PW1 is doubtful. The evidence of PWs 1 to 6 only
establishes that accused Nos.1 to 5 came in tempo and
trespassed into the house of PW-1, assaulted PWs 2 and 3
and caused simple injuries. As per the evidence of PWs 1
to 6, accused No.1 bit on the stomach of PW2 and slapped
PW3 on her cheek and caused simple injuries. Therefore,
the evidence of PWs 1 to 6 regarding accused No.1 biting
on the stomach of PW2 and slapped on the cheeks of PW3
is consistent. PWs 2 and 3 have not stated any overt acts
of accused Nos.2 to 5 but they have stated their presence
on the spot at the time of the incident. Even, PW-5 has
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not stated any overt acts of accused Nos.2 to 5 so also
PW-6. Therefore, the evidence of PWs 1 to 6 is consistent
with regard to accused No.1 biting on the stomach of PW-
2 and slapped PW-3 on her cheek. Even Exs.P.5 and 6 -
wound certificates of PWs 2 and 3 would corroborate the
said injuries sustained by PW2 on the stomach and PW3
on her cheek. The trial Court has erred in convicting the
appellants/accused Nos.1 to 5 for offence under Sections
307 read with Section 149 IPC. Therefore, accused Nos.1
to 5 are required to be acquitted under Section 307 read
with Section 149 IPC.
14. The trial Court has rightly convicted the
appellants/accused Nos.1 to 5 for offence under Sections
143, 147, 148, 324, 323, 448 and 504 IPC. The trial
Court has imposed the maximum sentence on the
appellants for offence under Sections 324, 448 and 504
IPC.
15. Looking to the relationship between PWs 1 to 3
and accused No.1, simple injuries sustained by PWs 2 to 3,
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no overt act against accused Nos.2 to 5, the sentence
imposed by the trial Court on them is harsh and excessive
and requires to be modified.
16. Appellants 1 to 4/accused Nos.1 to 4 were in
judicial custody for a period of 27 days (from 18.08.2008
to 15.09.2008) and for 20 days after passing of the
impugned judgment (from 17.04.2012 to 07.05.2012).
Appellant No.5 was in judicial custody for 20 days from the
date of judgment i.e. 17.04.2012 to 07.05.2012.
Therefore, appellants 1 to 4/accused Nos.1 to 4 were in
judicial custody totally for a period of 47 days and
appellant No.5/accused No.5 was in judicial custody for 20
days.
17. In view of the close relationship of PWs 1 to 3
and accused No.1, no overt act against accused Nos.2 to
5, the sentence is modified to the period already gone by
them in the custody for the offence under Sections 143,
147, 148, 324, 323, 448, 504 read with Section 149 IPC.
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18. In view of reduction of the sentence of
imprisonment, fine imposed on them requires to be
enhanced.
19. In the result, the following:
ORDER
(i) Appeal is allowed-in-part.
(ii) The conviction of the appellants 1 to
5/accused Nos.1 to 5 for offence under
Sections 143, 147, 148, 323, 324, 448, 504
read with Section 149 IPC is confirmed.
(iii) The sentence imposed on appellants/
accused Nos.1 to 5 for the said offence
under Sections 143, 147, 148, 324, 323,
448, 504 read with Section 149 IPC is
modified and reduced to the period of
custody undergone by them.
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(iv) The fine imposed by the trial Court for the
said offences is modified and enhanced by
Rs.1,000/- for each of the offences on each
of the appellants in view of the modification
of the sentence of imprisonment.
(v) The appellants/accused Nos.1 to 5 are
acquitted for the offence under Section 307
read with Section 149 IPC.
(vi) The order of the trial Court regarding
running of the sentence concurrently is
confirmed.
(vii) The award of compensation out of the fine
amount by the trial Court is confirmed.
Sd/-
JUDGE
BRN
