Karnataka High Court

Murthy vs State Of Karnataka on 22 August, 2023

Bench: Shivashankar Amarannavar

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                                                             NC: 2023:KHC:29952
                                                          CRL.A No. 51 of 2012




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 22ND DAY OF AUGUST, 2023

                                              BEFORE
                      THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
                                 CRIMINAL APPEAL NO. 51 OF 2012
                      BETWEEN:

                         MURTHY
                         S/O KRISNEGOWDA
                         AGED ABOUT 28 YEARS
                         R/AT KOTEGALA VILLAGE
                         HUNSUR TALUK.
                                                                ...APPELLANT
                      (BY SRI VEERANNA G TIGADI, ADVOCATE)

                      AND:

                         STATE OF KARNATAKA
                         REPRESETNED BY ITS SPP
                         HIGH COURT BUILDING
                         BANGALORE - 560 001.
                         THROUGH S.H.O HUNSUR
                         RURAL POLICE STATION,
                         HUNSUR TALUK, MYSORE DISTRICT.
Digitally signed by
                                                               ...RESPONDENT
LAKSHMINARAYANA
MURTHY RAJASHRI
Location: HIGH
                      (BY SRI JAIRAM SIDDI, HCGP)
COURT OF
KARNATAKA


                           THIS CRL.A. IS FILED U/S. 374(2) CR.P.C PRAYING TO
                      SET ASIDE THE ORDER DATED:24.12.11 PASSED BY THE VI
                      ADDITIONAL S.J., AND SPL. JUDGE UNDER SC AND ST(POA)
                      ACT, 1989, MYSORE IN SPL.C.No.31/11 - CONVICTING THE
                      APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 341, 504, 326
                      OF IPC AND U/S 3(1)(X) OF SC AND ST (POA) ACT, 1989. AND
                      THE APPELLANT/ACCUSED IS SENTENCED TO PAY FINE OF
                      RS.200/- FOR THE OFFENCE P/U/S 341 OF IPC AND IN
                      DEFAULT OF PAYMENT OF FINE, HE IS DIRECTED TO UNDERGO
                      S.I. FOR TEN DAYS. AND THE APPELLANT/ACCUSED IS
                      DIRECTED TO UNDERGO S.I. FOR SIX MONTHS, FOR THE
                      OFFENCE P/U/S 504 OF IPC.
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                                                     NC: 2023:KHC:29952
                                                  CRL.A No. 51 of 2012




    THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                               JUDGMENT

1. This appeal is filed against the judgment of

conviction dated 23.12.2011 and order on sentence dated

24.12.2011 passed in Special Case No.31/2011 by the

VI Additional District and Sessions Judge and Special

Judge, Mysuru, convicting the appellant - accused for the

offences punishable under Sections 341, 504 and 326 of

the Indian Penal Code, 1860 (for short hereinafter referred

to as "IPC") and Section 3(1)(x) of the Scheduled Castes

and the Scheduled Tribes (Prevention of Atrocities) Act,

1989 (for short hereinafter referred to as "the Act").

2. The appellant - accused has been sentenced to pay

fine of Rs.200/-, in default, to undergo Simple

Imprisonment for ten days for the offence under Section

341 of IPC; further sentenced to undergo Simple

Imprisonment for six months for the offence under Section

504 of IPC; further sentenced to undergo Simple

Imprisonment for two years and fine of Rs.3,000/-, in

NC: 2023:KHC:29952 CRL.A No. 51 of 2012

default, to undergo Simple Imprisonment for two months

for the offence under Section 326 of IPC and further

sentenced to undergo Simple Imprisonment for six months

and to pay fine of Rs.500/-, in default, to undergo Simple

Imprisonment for fifteen days, for the offence under

Section 3(1)(x) of the Act.

3. The factual matrix of the case is that; PW1 -

Sri.Nagaesh, S/o Sri.Shivannanaika (complainant) is the

resident of Kottegala village, residing with his wife and

children in the house standing in the name of his mother

which is abutting the house of Sri.Krishnegowda, father of

the appellant - accused. There is a live-hedge in between

the house of PW1 and Sri.Krishnegowda. There was a

dispute between PW1 and the said Sri.Krishnegowda in

respect of the said fence, since four years prior to filing of

the complaint. Three days earlier to the incident, the

appellant - accused has cut the branches of one jungle

wood tree grown in the said live-hedge in the absence of

PW1 and at that time, when the wife of PW1 enquired, the

NC: 2023:KHC:29952 CRL.A No. 51 of 2012

appellant - accused abused her in filthy language.

Thereafter, PW1 enquired one Sri.Venkatesh Naika. He

told that the tree belongs to PW1 and he could cut and

take the same. A day prior to the date of the incident, at

about 6.00 pm., PW1 cut the branches of the said tree. on

the next day ie., on 13.02.2011 at about 7.30 pm, when

PW1 was coming from the tank towards his house, the

appellant - accused restrained him, abused him taking his

caste name and enquired as to why he has cut the tree

situated in the live-hedge and abused PW1 in filthy

language. When PW1 requested the appellant - accused

not to abuse him, the appellant - accused went and

brought chopper from his house and came to assault PW1.

At that time, father of the appellant - accused and

brothers of the appellant - accused also came to assault

PW1. One Sri.Chandrappanaika snatched the chopper

from the hands of the appellant - accused. The appellant

- accused picked up a stone from the ground and threw it

at PW1 and it hit the head of PW1, as a result, he

sustained bleeding injury. One Sri.Venkatesh Naika,

NC: 2023:KHC:29952 CRL.A No. 51 of 2012

Sri.Mancha Naika and Sri.Swamy Naika came and pacified

the quarrel. PW1 was taken to Government Hospital,

Hunsur. The Police Sub-Inspector who received the memo

from the Government Hospital, Hunsur, went to the

Government Hospital, Hunsuru and recorded the

statement of PW1 and registered the case. After

completing the investigation, charge sheet came to be

filed against this appellant - accused for the offences

punishable under Sections 341, 504, 326 of IPC and

Section 3(1)(x) of the Act.

4. The prosecution examined 13 witnesses as PWs.1 to

13 and got marked Exs.P1 to P18 and MOs.1 to 3. The

statement of the appellant - accused has been recorded

under Section 313 of Cr.P.C.

5. After hearing the arguments on both sides, the Trial

Court framed the points for consideration and convicted

the appellant - accused for the offences under Sections

341, 504, 326 of IPC and Section 3(1)(x) of the Act. The

NC: 2023:KHC:29952 CRL.A No. 51 of 2012

said judgment of conviction and order on sentence has

been challenged by the appellant - accused in this appeal.

6. Heard the arguments of learned counsel for the

appellant - accused and learned High Court Government

Pleader for the respondent - State.

7. Learned counsel for the appellant - accused argued

that there is a dispute between PW1 and the family

members of the appellant - accused regarding the

boundary situated in between their houses. The alleged

incident has taken place with regard to the said boundary

dispute, as PW1 - complainant cut the branches of the

tree situated on the boundary and not for the reasons that

PW1 belongs to the Scheduled Caste. The Author of

Ex.P16 - caste certificate has not been examined. He

further argued that PW1 is the injured and PWs.2 to 6 and

8 are the eye witnesses to the incident and he is not

disputing their evidence with regard to the restraining PW1

and assault by the appellant - accused, by throwing the

stone at the head of PW1. He raised two points of

NC: 2023:KHC:29952 CRL.A No. 51 of 2012

arguments. One is with regard to the stone used by the

appellant - accused to cause injury to PW1 and the stone

is handful stone cannot be termed as a 'dangerous

weapon' to attract the offence under Section 326 of IPC.

It is further argued that at the most, the offence which

attracts is under Section 325 of IPC, as the stone is not a

dangerous weapon.

8. He has not disputed the injury sustained by PW1 is

grievous injury. He further argued that the appellant -

accused was 28 years old at the time of the incident, now

12 years have elapsed. He is having wife and children and

there is no minimum sentence for the offence under

Section 325 of IPC and prays for imposing the sentence of

imprisonment for one day and imposing heavy fine. To

substantiate his contention that the stone is not a

dangerous weapon, he placed reliance on the decision of

the Hon'ble Apex Court in the case of Mathai Vs. State of

Kerala reported in (2005) 3 SCC 260.

NC: 2023:KHC:29952 CRL.A No. 51 of 2012

9. The second limb of his argument is that the alleged

incident has taken place as there is bounded dispute of

cutting of branches of the tree by the complainant - PW1

and not for the reason that the complainant belongs to the

Scheduled Caste. The eye witnesses examined by the

prosecution namely, PWs.2 to 6 and 8 are the caste-men

and the relatives of PW1 and no other independent

witnesses have been examined. PW1 has initially filed a

complaint against five persons stating their involvement

and abuse by this appellant - accused and another by

name Sri.Nanjegowda, but the charge sheet has been filed

based on the statement of other witnesses only against

this appellant - accused which shows that the version of

PW1 regarding the abuse taking the caste name is not

reliable. Even the evidence of other witnesses namely

PWs.2 to 6 and 8 cannot be relied as they are caste-men

and relatives of PW1. He prays for acquittal of the

appellant - accused under Section 3(1)(x) of the Act.

NC: 2023:KHC:29952 CRL.A No. 51 of 2012

10. Per contra, learned High Court Government Pleader

for the respondent - State argued that the Trial Court on

proper appreciation of the evidence on record has rightly

convicted the appellant - accused. He has supported the

reasons assigned by the Trial Court. He further argued

that the evidence of PWs.2 to 6 and 8 is sufficient to

convict the appellant - accused for the offences alleged

against him. On these grounds, he sought for dismissal of

the appeal.

11. On the grounds made out and considering the

arguments, the following points would arise for my

consideration;

"(i) Whether the Trial Court erred in convicting the appellant - accused for the offence under Section 326 of IPC, instead of the offence under Section 325 of IPC?

(ii) Whether the Trial Court has erred in convicting the appellant - accused for the offence under Section 3(1)(x) of the Act?"

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NC: 2023:KHC:29952 CRL.A No. 51 of 2012

12. My answer to the above points is in the affirmative,

for the following reasons;

PW1 and the appellant - accused are the neighbours

and there is a boundary dispute between them. As per the

averments of Ex.P1 - complaint, three days prior to the

incident, the appellant - accused has cut the branches of

the tree situated on the boundary and at that time, wife of

PW1 has questioned the same and the appellant - accused

has abused her in filthy language. The said aspect goes to

show that there is a boundary dispute between PW1 and

his family members and the appellant - accused and his

family members and there used to be quarrels between

them. Even the said quarrel has taken place, three days

prior to the incident, the wife of PW1 had not filed any

complaint against the appellant - accused.

13. PW1, a day prior to the date of incident in the

evening at 6.00 pm has cut the tree situated on the

boundary. On the next day morning, at about 7.30 am.,

the alleged quarrel has taken place when the appellant -

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accused questioned PW1 - complainant regarding why he

has cut the tree situated on the boundary. At that time,

this appellant - accused abused PW1 touching his caste

and threw a stone on his head and it caused injury. The

evidence of PWs.2 to 6 and 8 clearly establishes that the

appellant - accused restrained PW1 when he was

proceedings on the road and quarreled with him and

abused him, threw a stone and it hit his head, as a result,

he sustained injuries. Ex.P6 is the wound certificate which

reveal that the injury sustained by PW1 is grievous injury.

The doctors who have examined PW1, who has taken

C.T.Scan and who has treated PW1 in K.R.Hospital are

examined as PWs.7 and 12 respectively. Their evidence

also establishes that PW1 has sustained grievous injury.

14. The assault said to have been made by this appellant

- accused is by a stone thrown at the head of PW1 at a

distance. In the evidence of the prosecution, it has come

that the appellant - accused took the stone fallen on the

ground and threw it on PW1. The said stone has been

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seized from the spot under Mahazar - Ex.P5. The said

stone is stated to be a handful stone. The measurement

of the said stone is not mentioned in the said mahazar.

Even the said stone has been sent to PW7 - the doctor

who examined PW1, who has opined as per Ex.P7 stating

that it can cause injury sustained by PW1. PW7 - doctor

also not stated the measurement of the said stone.

15. Learned counsel for the appellant has contended that

the stone used by the appellant - accused to cause injury

to PW1 is not a dangerous weapon. It is not in dispute

that the said stone with which the appellant - accused

caused injury on the head of PW1 is a handful stone,

which the appellant - accused had taken from the ground

as it has fallen there. Whether a stone is a dangerous

weapon or not has been considered by the Hon'ble Apex

Court in the case of Mathai Vs. State of Kerala reported

in (2005) 3 SCC 260, wherein it has observed thus;

"16. The expression "any instrument which, used as a weapon of offence, is likely to cause death" has to

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be gauged taking note of the heading of the Section.

What would constitute a 'dangerous weapon' would depend upon the facts of each case and no generalization can be made.

17. The heading of the Section provides some insight into the factors to be considered. The essential ingredients to attract Section 326 are : (1) voluntarily causing a hurt; (2) hurt caused must be a grievous hurt; and (3) the grievous hurt must have been caused by dangerous weapons or means. As was noted by this Court in State of U.P. v. Indrajeet there is no such thing as a regular or earmarked weapon for committing murder or for that matter a hurt. Whether a particular article can per se cause any serious wound or grievous hurt or injury has to be determined factually. As noted above the evidence of the doctor (PW 5) clearly shows that the hurt or the injury that was caused was covered under the expression 'grievous hurt' as defined under Section 320 IPC. The inevitable conclusion is that a grievous hurt was caused. It is not that in every case a stone would constitute a dangerous weapon. It would depend upon the facts of the case. At this juncture, it would be relevant to note that in some provisions e.g. Sections 324 and 326 expression "dangerous weapon" is used. In some other more serious offences the expression used is "deadly weapon" (e.g. Sections

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397 and 398). The facts involved in a particular case, depending upon various factors like size, sharpness, would throw light on the question whether the weapon was a dangerous or deadly weapon or not. That would determine whether in the case Section 325 or Section 326 would be applicable.

18. In the instant case considering the size of the stone which was used, as revealed by material on record, it cannot be said that a dangerous weapon was used. Therefore, the conviction is altered to Section 325 IPC. No hard - and - fast rule can be applied for assessing a proper sentence and a long passage of time cannot always be a determinative factor so far as sentence is concerned. It is not in dispute that a major portion of the sentence awarded has been suffered by the appellant. On the peculiar facts of the case we restrict it to the period already undergone."

16. The stone used by the appellant - accused which

caused injury to PW1 is a handful stone. Considering the

said aspect, it cannot be said that it is a dangerous

weapon. Therefore, the conviction of the appellant -

accused for the offence under Section 326 of IPC requires

to be altered to Section 325 of IPC. The punishment

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provided under Section 325 of IPC is imprisonment which

may extent to seven years. There is no minimum sentence

prescribed for the offence under Section 325 of IPC.

Considering the age of the appellant - accused and lapse

of twelve years and as the appellant - accused is having

dependents to look after, one day sentence requires to be

imposed on him with fine of Rs.1,50,000/-, in default to

undergo Simple Imprisonment for three months for the

offence under Section 325 of IPC.

17. The incident has taken place with regard to cutting of

the branches of the tree by the complainant (PW1). The

said branch of the said tree is situated on the boundary in

between the houses of the appellant - accused and PW1.

There is a dispute regarding the boundary of the appellant

- accused and PW1 and there used to be quarrels between

them in that regard. Even three days prior to the date of

incident, a quarrel had taken place between the accused -

appellant and wife of PW1, when this appellant - accused

cut the branches of the said tree and no complaint has

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been filed in that regard by the wife of PW1. The abuse

taking the caste name by this appellant - accused is not

believable, as PW1 not only stated that this appellant -

accused abused him taking his caste name and so also,

another person by name Sri.Krishnegowda against whom

no charge sheet is filed even though the case is registered

against the said Sri.Krishnegowda. The said Krishnegowda

is the father of this appellant - accused. The very act of

filing the complaint by this PW1 against this appellant -

accused, Sri.Krishnegowda and three others itself show

that he intends to take revenge against this appellant -

accused and his family members with regard to the said

boundary dispute. The other witnesses namely PWs.2 to 5

are the relatives of PW1, PW6 is the brother of PW1 and

PW8 is the wife of PW1. Their evidence with regard to

abuse by this appellant - accused taking the caste name

in filthy language cannot be relied on, as they are

caste-men / relatives of PW1.

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18. Without considering these aspects, the Trial Court

erred in convicting the appellant - accused for the offence

under Section 3(1)(x) of the Act. Therefore, the conviction

of the appellant - accused for the offence under Section

3(1)(x) of the Act, requires to be set-aside.

19. The appellant - accused has been sentenced to

undergo imprisonment for six months for the offence

under Section 504 of IPC. The punishment provided for

the offence under Section 504 of IPC is imprisonment of

either description of a term which may extend to two

years or with fine or with both. As the quarrel took place

between PW1 and the appellant - accused is with regard

to the boundary dispute of cutting the branches of the tree

situated on the boundary, it is sufficient, if a sentence of

fine alone is imposed for the offence under Section 504 of

IPC.

20. For the reasons stated above, the conviction and

sentence of the appellant - accused for the offence under

Section 341 of IPC requires to be upheld. The sentence

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for the offence under Section 504 of IPC requires to be

modified, imposing the sentence of fine of Rs.10,000/-, in

default to undergo Simple Imprisonment for fifteen days.

The conviction of the appellant - accused for the offence

under Section 326 of IPC is altered to Section 325 of IPC.

In the result, the following;

ORDER

(i) The appeal is allowed in part.

(ii) The order of conviction and sentence for the

offence under Section 341 of IPC is affirmed.

(iii) The order on sentence for the offence under

Section 504 of IPC is modified, imposing fine of

Rs.10,000/-, in default, the appellant - accused

is sentenced to undergo Simple Imprisonment

for fifteen days.

(iv) The conviction of the appellant - accused for

the offence under Section 326 of IPC is altered to

Section 325 of IPC and the appellant - accused