Karnataka High Court
Sri Shivalingam vs State By Magadi Road Police on 5 December, 2023
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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CRL.A No. 735 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL NO. 735 OF 2012
BETWEEN:
1. SRI SHIVALINGAM
S/O LATE R. MANICKAM
AGED ABOUT 51 YEARS
2. NAVEENA
S/O SHIVALINGAM
AGED ABOUT 20 YEARS
BOTH ARE R/AT NO.16/A,
3RD CROSS, 6TH BLOCK
Digitally RAJAJINAGAR
signed by BANGALORE-560010.
SUMITHRA R ...APPELLANTS
Location: (BY SRI. DINESH GAONKAR., ADVOCATE)
High Court of
Karnataka
AND:
1. STATE BY MAGADI ROAD POLICE
REP. BY SPECIAL PUBLIC PROSECUTOR
BANGALORE.
...RESPONDENT
(BY SRI. B.LAKSHMAN, HCGP)
THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT DATED 13.06.2012 AND SENTENCE
DATED 15.06.2012 OF CONVICTION PASSED BY THE P.O.,
F.T.C (SESSIONS)-XI, BANGALORE IN S.C.NO.1299/2011 -
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CRL.A No. 735 of 2012
CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCE
P/U/S 324 R/W SEC.34 OF IPC.
THIS APPEAL IS COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The Judgment and Order dated 13.06.2012 passed
by the Court of Fast Track (Sessions) Judge, Bangalore in
Sessions Case No.1299/2011, convicting the
appellants/accused Nos.1 and 2 for the offence punishable
under Section 324 r/w Section 34 of IPC, is under
challenge in this appeal.
2. Heard the arguments of the learned counsel for
appellants and the learned High Court Government Pleader
for respondent-State and perused the evidence and the
material on record.
3. It is the case of the prosecution that on
13.01.2011 at about 9.45 p.m., in front of house
No.16/17, 3rd Cross, 6th Block, Rajajinagar, within the
jurisdiction of Magadi Road Police Station, accused Nos.1
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and 2 picked up quarrel with PW3-Smt.Vinutha regarding
some financial transaction and when PW4-Shankar Reddy
and PW1-Ananda intervened, accused No.2 voluntarily
caused hurt to PW1 by fisting on his face and kicking with
legs and further accused No.1 attempted to commit his
murder by assaulting with a paper cutter on his neck and
caused grievous injuries to him. Further, both the accused
abused PW1 in filthy language and thereby committed
offences punishable under Section 323, 307 and 504 r/w
34 of IPC.
4. The learned Sessions Judge, on appreciation of
the oral and documentary evidence on record has come to
the conclusion that to constitute an offence under Section
307 of IPC, there must be an intention to commit murder.
The incident took place in a spur of moment. Even
though the accused caused hurt on the neck of PW1, the
injury is simple in nature and it is a superficial cut injury.
Hence, the learned Sessions judge held that there is no
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intention on the part of the accused to commit murder of
PW1.
5. The learned Sessions Judge has placed reliance
on the evidence of PWs.1, 3 and 4 and also the medical
evidence to come to the conclusion that accused No.1 has
assaulted PW1 with a paper cutter and caused simple
injuries and accused No.2 assaulted him with hands and
both the accused shared common intention to cause injury
to the complainant.
6. The learned Sessions Judge has acquitted
accused Nos.1 and 2 of the offences punishable under
Section 307, 323, 504 r/w Section 34 IPC and convicted
them for the offence punishable under Section 324 r/w 34
IPC. Accused No.1 was sentenced to undergo rigorous
imprisonment for two years and to pay fine of Rs.2,000/-,
in default, to further undergo simple imprisonment for one
month and accused No.2 was sentenced to pay fine of
Rs.2000/-, in default, to undergo simple imprisonment for
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one month for the offence punishable under Section 324
r/w 34 of IPC.
7. In the complaint lodged by PW1, which is
marked as Ex.P1, it is stated that on 13.04.2011, the
complainant had gone to the house of PW3-Vinutha. Her
husband PW4-Shankar Reddy informed him that PW3 had
gone to the house of accused No.1. At that time, PW3
called her husband i.e., PW4 over her mobile phone and
informed that accused No.1 and his son-accused No.2 are
quarreling with her. As such, PWs.3 and 4 went near the
house of the accused persons and saw they were
quarreling with PW3. PWs.1 and 4 tried to pacify the
quarrel, at that time both the accused started abusing
them in filthy language and accused No.2 assaulted on the
face of PW1 and also kicked him, accused No.1 assaulted
with a paper cutter causing injury on the right side of the
neck of PW1, on account of which he sustained bleeding
injuries.
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8. The injured-PW1 has reiterated the complaint
averments. He has stated in his evidence that both PWs.3
and 4 took him to the police station and from there the
police took him to Victoria hospital for treatment.
Thereafter, he lodged the complaint as per Ex.P1.
9. PW7-PSI of Magadi Road Police Station has
deposed that on 13.04.2011 at about 10.10 p.m., the
injured came to the police station and he was sent to the
hospital along with the Head Constable and at about
1.30 a.m., on 14.04.2011 he was brought back to the
police station and then he received a written complaint
from him and registered a case and issued FIR-Ex.P5. He
has further stated that at about 9.30 a.m., he went to the
spot and prepared a mahazar and seized a paper cutter,
blood stained shirt and banian of PW1 under a mahazar-
Ex.P2.
10. Both PWs.3 and 4 have deposed in their
evidence about the quarrel which has taken place. They
have deposed in consonance with the evidence of PW1.
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11. PW5 is the medical officer, who treated the
injured-PW1 and issued wound certificate marked as
Ex.P3. As per the wound certificate, the injured sustained
a superficial cut injury in front of the neck
15x2 cms. extending from right sternocleido muscle to left
sternocleido muscle. It is stated that the said injury is a
fresh injury.
12. PW5 has deposed that at about
10.45 p.m., on 13.04.2011 the injured-PW1 came for
treatment along with a police with a history of assault.
He has stated that such injury could be caused if assaulted
with a sharp blade/knife.
13. The learned counsel for the appellants has
contended that the accused have not disputed the quarrel
which took place at about 9.45 p.m. on 13.04.2011 but
contends that the accused have not inflicted any injury
either to PW1 or they have abused him as alleged by the
prosecution. It is contended that the injured himself
came near the house of the accused along with PW4 and
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started assaulting them and later filed a false complaint
after inflicting injuries to himself. He has contended that
the injuries noticed in Ex.P3 is a self inflicted injury. The
learned counsel has relied on the evidence of
DW1-neighbour, to contend that the accused have not
caused any injury to PW1.
14. The witnesses have denied the suggestion
made by the defence that the injuries were self inflicted by
PW1. There is nothing elicited in the cross-examination of
PWs.1, 3 and 4 so as to disbelieve the incident. However,
what is relevant to be seen is that the incident has taken
place near the house of the accused. According to
PW1-Anand, PW3-Vinutha had taken loan of Rs.10,000/-
from him and she had assured him that she would return
the said amount on 13.04.2011 and therefore, he went
near her house. PW4-Shankar Reddy informed him that
PW3 has gone near the house of the accused. PW3, in
her evidence has deposed that one Selvi i.e., wife of
accused No.1 had taken loan of Rs.15,000/- and one
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Mangalya chain from her and she had taken a sum of
Rs.10,000/- from PW1. Since PW1 was insisting her to
return the amount, in order to recover the loan given to
Selvi, she went near her house and at that time Selvi was
not present but her husband i.e., accused No.1 and his
son-accused No.2 were present. When she asked accused
No.1 to return the amount, both the accused started
quarrelling with her and she informed the same over
phone to her husband, at that time PWs.1 and 4 came
near the house of the accused. She has stated that when
PW1 intervened, the accused persons abused him in filthy
language and accused No.2 assaulted him on his face and
accused No.1 assaulted on his neck with a paper cutter.
15. A perusal of the evidence of PWs.1, 3 and 4
clearly reveal that initially PW3 went near the house of the
accused to request them to return the amount taken by
the wife of accused No.1 and thereafter both PWs.1 and 4
went near the house of the accused. At that time, they
saw accused Nos.1 and 2 were quarrelling with PW3.
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When PW1 tried to intervene, both accused Nos.1 and 2
are alleged to have assaulted him. Even accepting the
case of the prosecution that accused No.1 has caused
injury over the neck of PW1 with MO3-paper cutter, it
cannot be said that there was any intention on the part of
the accused persons to cause any such injury. As rightly
held by the learned trial Judge, the incident has taken
place in a sudden quarrel and in a spur of moment and
due to sudden provocation. According to prosecution, the
wife of accused No.1 was due some amount to PW3 and
not to PW1 i.e., the injured. Therefore, there was no
motive for the accused persons to cause any hurt or injury
to PW1. It is only when PW1 tried to intervene, the
accused are said to have abused and assaulted him. As
per Ex.P3-wound certificate, the injury sustained by PW1
is simple in nature. Hence, in the facts and circumstances
of the case, the offence committed by the accused would
fall under Section 334 of IPC and not under 324 IPC.
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16. The trial Court has acquitted accused Nos.1 and
2 of the offences punishable under Sections 323, 504 r/w
34 IPC. The punishment prescribed for the offence under
Section 334 is imprisonment of either description for a
term which may extend to one month, or with fine which
may extend to five hundred rupees, or with both.
17. Accused No.1 was in custody from 15.04.2011
to 28.04.2011. The period of custody undergone by
accused NO.1 can be held sufficient.
18. For the forgoing reasons, the following:
ORDER
i. The appeal is partly allowed.
ii. The Judgment and Order dated 13.06.2012
passed by the Court of Fast Track (Sessions) Judge,
Bangalore, in Sessions Case No.1299/2011
convicting and sentencing the appellants/accused
Nos.1 and 2 for the offence punishable under Section
324 r/w 34 IPC is hereby set aside.
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iii. Accused Nos.1 and 2 are convicted for the
offence punishable under Section 334 r/w 34 IPC.
iv. The period of custody already undergone by
accused Nos.1 and 2 is held sufficient. Both the
accused are sentenced to pay a fine of
Rs.500/- each, in default of payment of fine, shall
undergo simple imprisonment for a period of
15 days.
It is submitted that the fine amount has already
been deposited by accused Nos.1 and 2.
If any amount has been paid to PW1 as
compensation, the same shall not be recovered.
Sd/-
JUDGE
TL
