Karnataka High Court

Dileep @ Dileep Kumar vs State By on 1 December, 2023

Author: Mohammad Nawaz

Bench: Mohammad Nawaz

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                                                       NC: 2023:KHC:43418
                                                    CRL.A No. 686 of 2012




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 1ST DAY OF DECEMBER, 2023

                                         BEFORE
                       THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
                            CRIMINAL APPEAL NO. 686 OF 2012
                BETWEEN:

                1.    DILEEP @ DILEEP KUMAR
                      AGED ABOUT 30 YEARS
                      S/O GUDDE MARI SHIVANNA @
                      SHIVASHETTY
                      R/O DODDAPALYA,
                      SRIRANGAPATNA TALUK,
                      MANDYA DISTRICT.

                2.    SHIVARAMU @ SRIRAMA
                      AGED ABOUT 47 YEARS
                      S/O SIDDA SHETTY,
                      R/O T M HOSURU VILLAGE
                      K. SHETTY HALLI HOBLI.
Digitally             SRIRANGAPATNA TALUK
signed by             MANDYA DIST.
SUMITHRA R
                                                            ...APPELLANTS
Location:
High Court of   (BY SRI. L SUDHARSHAN., ADVOCATE)
Karnataka
                AND:
                1.    STATE BY
                      SRIRANGAPATNA POLICE
                      REPTD. BY SPP HIGH COURT
                      BENGALURU.




                                                           ...RESPONDENT
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                                       NC: 2023:KHC:43418
                                    CRL.A No. 686 of 2012




(BY SRI. B.LAKSHMAN, HCGP)

     THIS CRL.A. IS FILED U/S.374(2)CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT OF CONVICTION DATED 18.06.2012 ON
THE FILE OF THE S.J., FTC, SRIRANGAPATNA IN
S.C.NO.150/2011 - CONVICTING THE APPELLANTS/ACCUSED
FOR THE OFFENCE P/U/S 341, 504 AND 326 R/W SEC.34 OF
IPC. THE APPELLANTS/ACCUSED PRAYS THAT THEY BE
ACQUITTED.

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

                       JUDGMENT

against the judgment and order dated 18.06.2012 passed

by the Court of Sessions Judge, Fast Track Court at

Srirangapatna in SC No.150/2011, wherein the learned

Sessions Judge has convicted them for the offence

punishable under Sections 341, 504 and 326 r/w 34 IPC.

2. The trial Court has sentenced accused Nos.1

and 2 to undergo rigorous imprisonment for a period of

two years and to pay fine of Rs.2,500/- each and in

default of payment of fine, to further undergo simple

imprisonment for one month for the offence punishable

under Section 326 r/w 34 IPC. No separate sentence has

NC: 2023:KHC:43418

been imposed against the accused for the offence

punishable under Section 341 and 504 of IPC, in view of

the imposition of substantive sentence for the offence

punishable under Section 326 of IPC.

3. Heard both sides and perused the evidence and

the material on record.

4. Case of the prosecution is that, on 22.08.2010

at about 5.00 p.m., near Neelanakoppalu on the road

leading to Govindegowda's Crusher, accused Nos.1 and 2

wrongfully restrained PW3-Shivanna, who was coming on

a scooter and intentionally insulted him by abusing in filthy

language and asked him to give money. When he refused

to give money, accused No.1 assaulted him with a rod on

his shoulders and hands and accused No.2 assaulted him

with a knife and caused injuries to his cheek and left

shoulder etc.

5. Charges were framed against accused Nos.1

and 2 for the offence punishable under Sections 341, 504

and 307 r/w 34 IPC.

NC: 2023:KHC:43418

6. The learned Sessions Judge, after appreciating

the evidence and material on record came to the

conclusion that the accused had no intention to commit

the murder of PW3 and hence held that the prosecution

has failed to prove the ingredients of Section 307 of IPC.

7. The first informant is PW2. Injured PW3 is his

uncle. As per Ex.P2-complaint, PW2 was informed about

the incident by one Venkataiah (PW6). Immediately, he

visited Neelanakoppalu and from there he shifted the

injured to Srirangapatna Hospital and from there to

K.R.Hospital, Mysore.

8. PWs.6 and 7 are the eye witnesses to the

incident. However, both the said witnesses have turned

hostile. Therefore, the evidence of PWs.2, 3 and the

medical evidence is relevant to appreciate the prosecution

case.

9. The injured who is examined as PW3 has stated

that both the accused asked him to give a sum of

Rs.1,000/- and when he said that he has not received the

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salary, they abused him and accused No.1 assaulted him

with a rod on his shoulder and accused No.2 wielded a

knife which blow fell on his cheek and shoulder. Again

accused No.1 assaulted him on his thigh and accused No.2

kicked him on his abdomen and back. When he

screamed, CW3 and Venkataiah(PW6) came to the spot

and at that time the accused persons threw the rod and

knife at the spot and ran away.

10. PW1 is the medical officer who examined the

injured-PW3 at Government Hosptial, S.R.Patna. His

evidence reveal that on 22.08.2010 at about 8.10 p.m., he

examined the injured who came to the hospital with a

history of assault by accused Nos.1 and 2 with a rod at

around 5.00 p.m. On 22.08.2010. He noticed the

following injuries:

i. Slit wound bleeding with contusion of right forearm.

ii. Left shoulder dislocation and

iii. Slit wound on right thigh 6 cm x 3 cm.

NC: 2023:KHC:43418

11. PW1 has stated that after first aid treatment the

patient was referred to HMC. The wound certificate

issued by PW1 is marked as Ex.P1.

12. In Ex.P1 only the descriptions of the injuries are

mentioned. However, PW1 has stated that injury No.1 is

grievous in nature, on the basis of the MLC Extract and

MLC report received from K.R.Hospital. The prosecution

has not placed on record the MLC register or MLC extract.

As per Ex.P1-Wound Certificate, there was a hairline

fracture of right radius, however, the X-ray is not

produced and marked. The injured-PW3 has nowhere

stated that X-ray was taken or that he sustained grievous

injury in the incident. Though there is nothing elicited in

the cross-examination of PW3 to disbelieve the incident,

however, it cannot be said that the prosecution has been

able to establish beyond reasonable doubt that he

sustained grievous injury in the incident.

13. MOs.1 and 2 are the iron rod and knife seized

from the spot under a mahazar-Ex.P3. The panch

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witnesses to Ex.P3 namely PW6 and PW8 have turned

hostile and not supported the case of the prosecution.

However, PW3 has spoken regarding the seizure mahazar-

Ex.P3.

14. From the above evidence adduced by the

prosecution, it cannot be held that the prosecution has

been able to establish the guilt of the accused punishable

under Section 326 of IPC. However, considering the

wound certificate and the evidence of PW3, there is no

hesitation in holding that the accused have committed the

offence under Sections 341, 504 and 324 r/w 34 IPC.

15. The learned counsel for the appellants has

submitted that the appellants and PW3-injured have

resolved their dispute and they are having a cordial

relationship. He submits that both the parties belong to

neighbouring villages and they have settled their dispute

and they want to live in harmony with cordial relationship.

He has filed an application along with the affidavits of the

appellants as well as the complainant/injured.

NC: 2023:KHC:43418

16. The parties are also present before the Court.

The complainant submits that he is having a cordial

relationship with the appellants and he wants to live with

them in harmony.

17. It is submitted that accused No.1 was in

custody for a period of 1½ months. Even though it is

alleged that accused No.2 assaulted PW3 with a knife, in

the wound certificate there is no mention regarding the

assault on PW3 with a knife. On the other hand, according

to Ex.P1, the injured came with a history of assault with a

rod. The incident has taken place in the year 2010.

13 years have lapsed. The parties are living cordially. In

the facts and circumstances, sending the appellants to the

prison at this stage will not serve any purpose.

Accordingly, the following:

ORDER

i. The appeal is partly allowed.

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ii. The Judgment and Order dated 18.06.2012

passed by the Court of Sessions Judge, Fast Track Court at

Srirangapatna in SC No.150/2011, convicting the

appellants/accused Nos.1 and 2 for the offence under

Section 326 IPC is hereby set aside. Conviction under

Section 341 and 504 IPC is confirmed.

iii. The appellants/accused Nos.1 and 2 are

convicted for the offence under Section 324 IPC.

iv. The appellants/accused Nos.1 and 2 shall pay a

total fine of Rs.2,500/- each and in default of payment of

fine, they shall undergo simple imprisonment for a period

of one month each.