H J Dileep vs State Of Karnataka
2023 Latest Caselaw 3918 Kant

                           1



  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 4th DAY OF JULY, 2023

                       PRESENT

       THE HON'BLE MR JUSTICE K.SOMASHEKAR

                          AND

        THE HON'BLE MR JUSTICE RAJESH RAI K

          CRIMINAL APPEAL NO. 390 OF 2017
                       C/W
          CRIMINAL APPEAL NO. 2159 OF 2016

IN CRL.A.NO.390 OF 2017

BETWEEN

   H.S. ANIL @ ANI,
   S/O SUBRAMANI,
   AGED ABOUT 27 YEARS,
   LABOURER, NEHRU COLONY,
   ARVATHOKLU VILLAGE,
   VIRAJPET TALUK,
   KODAGU DISTRICT - 571 201.
                                         ...APPELLANT

(BY SRI. MAHADEVA R.K, ADVOCATE)

AND

    THE STATE OF KARNATAKA
    REP. BY THE STATION HOUSE
    OFFICER, GONIKOPPA POLICE STATION,
    VIRAJPET TALUK,
    KODAGU DISTRICT - 571 201.
                               2




    REPRESENTED BY
    ITS STATE PUBLIC PROSECUTOR,
    HIGH COURT BUILDING,
    BENGALURU - 560 001.
                                           ...RESPONDENT

(BY SRI. H.S.SHANKAR, HCGP)

     THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT AND SENTENCE DATED 21.11.2016
PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS
JUDGE, KODAGU, MADIKERI SITTING AT VIRAJPET IN
S.C.NO.41/2014 - CONVICTING THE APPELLANT/ACCUSED FOR
THE OFFENCE P/U/S 341, 326, 307 R/W 34 OF IPC.


IN CRL.A.NO.2159 OF 2016

BETWEEN

   H.J.DILEEP,
   S/O H.B.JAYA,
   ELECRICIAN,
   AGED ABOUT 29 YEARS,
   R/O NEHRU COLONY,
   ARVATHOKLU VILLAGE,
   KODAGU DISTRICT - 571 218.
                                             ...APPELLANT

(BY SRI. KRISHNAMOORTHY.P, ADVOCATE)


AND


   STATE OF KARNATAKA,
   REPRESENTED BY
   SUB INSPECTOR OF POLICE,
   GONIKOPPA POLICE STATION,
                                 3




   KOLAR REPRESENTED BY SPP,
   HIGH COURT OF KARNATAKA,
   BENGALURU-560 001.
                                                  ...RESPONDENT

(BY SRI. H.S.SHANKAR, HCGP)

     THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER DATED 21.11.2016
PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS
JUDGE, KODAGU-MADIKERI, SITTING AT VIRAJPET IN
S.C.NO.41/2014 - CONVICTING THE APPELLANT/ACCUSED NO.2
FOR THE OFFENCE P/U/S 341, 326, 307 R/W 34 OF IPC.

     THESE CRIMINAL APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 14.06.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY, RAJESH RAI.K J.,
DELIVERED THE FOLLOWING:


                          JUDGMENT

These two appeals are directed against the judgment of

conviction and order of sentence passed in S.C.No.41/2014 by

the II Addl. District and Sessions Judge, Kodagu-Madikeri sitting

at Virajpet dated 21.11.2016 wherein, the appellants are

convicted for the offence punishable under Sections 341, 326,

307 r/w Section 34 of IPC and they are directed to undergo

imprisonment for a period of 10 years and also shall liable to pay

a fine of Rs.15,000/- each in default of payment of fine, shall

undergo simple imprisonment for a period of 2 years for the

offence punishable under Section 326 r/w Section 34 of IPC.

They were also directed to undergo simple imprisonment for a

period of 1 month and to pay fine of Rs.500/- in default of

payment of fine, shall undergo simple imprisonment for a period

of 5 days for the offence punishable under Section 341 r/w

Section 34 of IPC. Further, these appellants/accused Nos.1 & 2

were directed to undergo rigours imprisonment for life and also

liable to pay a fine of Rs.30,000/- each in default of payment of

fine, shall undergo simple imprisonment for a period of 3 years

for the offence punishable under Section 307 r/w Section 34 of

IPC. Against the said judgment of conviction and order of

sentenced, accused No.1 preferred Crl.A.No.390/2017 and

accused No.2 preferred Crl.A.No.2159/2016. Since both the

appeals are arising out of the common judgment passed in

S.C.No.41/2014, they are clubbed together and taken up for

disposal together.

2. The factual matrix of the prosecution case, which are

necessary for disposal of these appeals, are that on 11.01.2014

at about 9:15 pm on public road in front of the house of Pali of

Nehru colony, Arvathoklu village, accused Nos.1 & 2, in

furtherance of their common intention, wrongfully restrained the

injured-CW.1 and caused grievous injuries to CW.1 by means of

chopper and thereby, attempted to kill him. Hence, a complaint

has been lodged by the injured himself on 14.01.2014 at about

1.30 pm before the Gonikoppa police station and the same has

been registered in crime No.3/2014 for the offences punishable

under Sections 341 and 324 r/w Section 34 of IPC initially and

subsequently, based on the further statement of the said

injured-H.K.Ravi, the respondent police registered the FIR for

the offence punishable under Sections 341 and 307 r/w Section

34 of IPC. After the investigation of the case, the respondent

police laid the charge sheet against accused Nos.1 & 2 for the

offence punishable under Sections 341, 326 and 307 r/w Section

34 of IPC. Before the committal Court, the charges framed for

the aforesaid offences and the accused denied the same and

claims to be tried.

3. In order to bring home the guilty of the accused, the

prosecution in all examined 12 witnesses as PW.1 to PW.12 and

got marked 17 documents as per Exs.P1 to 17 so also two

material objects as MOs.1 and 2. However, the accused did not

choose to examine any witness on their favour and also not

produced any documents. The defence of the accused is one of

total denial and that of false implication.

4. After assessment of the oral as well as documentary

evidence placed before the trial Court and also appreciating the

evidence available on record, the learned Sessions Judge passed

the impugned judgment, challenged herein, by convicting

accused Nos.1 and 2 for the offences charged against them and

sentenced them as stated supra. Being aggrieved by the same,

the accused preferred these appeals to set aside the impugned

judgment passed by the learned Sessions Judge in

S.C.No.41/2014.

5. We have heard Sri. R.K. Mahadev, learned counsel

for accused No.1 i.e. the appellant in Crl.A.No.390/2017 so also

Sri. P.Krishna Moorthy, learned counsel for accused No.2 i.e., the

appellant in Crl.A.No.2159/2016 and also the learned High Court

Government Pleader Sri H.S.Shankar for the respondent-State.

6. Learned counsels for the appellants, vehemently,

contended that the impugned judgment passed by the trial Court

suffers form perversity and illegality and the same has passed

without properly appreciating the evidence available on record.

According to the learned counsels, the Sessions Judge proceeded

to convict the accused based on the presumptions and

assumptions in spite of material contradictions in the evidence of

the witnesses. They would further contend that the evidence of

the injured witness-PW.1 does not inspire confidence to rely on

the same and to convict the accused persons. According to the

learned counsels, by perusal of the evidence of PW.1, the said

witness failed to depose the motive behind the alleged incident

and there are material contradiction in respect of his complaint,

further statement and evidence before the Court.

7. Learned counsels would further contend that the

evidence of PW.1 and 2 are contradictory in nature wherein,

according to PW.1, he deposed that accused No.1 only assaulted

the victim and accused No.2 was not there in the spot but PW.2

deposed in a different manner that accused No.2 also

participated in the crime. Hence, much evidentiary value cannot

to be attached to the evidence of PW.1-the injured witness and

PW.2-the eyewitness. The learned counsels would further

contend that PW.3, who is a hearsay witness, turned hostile to

the prosecution case. The evidence of the other witnesses

examined by the prosecution no way helpful to the prosecution

case and the recovery of MO.1 also not proved in accordance

with the provisions of Section 27 of Indian Evidence Act. The

learned counsels would further contend that as per the wound

certificate, there are as many as 10 injuries forthcoming.

However, in the evidence of PW.1 and PW.2, there are four

injuries inflicted by the accused. Hence, the version of PW.1 and

3 is quite contradictory to the wound certificate. As such,

according to the learned counsels, the prosecution utterly failed

to prove the charges levelled against the accused. Hence, they

pray to allow the appeals.

8. Per contra, learned High Court Government Pleader

H.S.Shankar vehemently contended that the judgment under

appeal does not suffers from any perversity or illegality and the

learned Sessions Judge after perusal of the entire evidence on

record passed the said judgment. As such, the same does not

call for any interference by this Court. He would further contend

that the evidence of the injured witness-PW.1 coupled with the

evidence of the eyewitness-PW.2, the prosecution clearly proved

the charges levelled against the accused. Though PW.1 failed to

depose about the role played by accused No.2, however, PW.2

categorically deposed about the same. As such, a conjoint

reading of evidence of PW.1 and PW.2, the prosecution proved

the charges levelled against the accused. He would further

contend that the evidence of PW.9, who treated the injured and

issued the wound certificate as per Ex.P14, clearly depicts that

there all as many as 10 injuries and all the injuries are grievous

in nature. As such, the intention of the accused is to take away

the life of the injured with preparation. Therefore, the learned

Sessions Judge rightly convicted the accused for the offence

under Sections 307 and 326 of IPC. Accordingly, learned High

Court Government Pleader prays to dismiss the appeal.

9. We have bestowed our anxious consideration on the

oral and documentary evidence placed before us and also

meticulously perused the material available on record including

the trial Court records.

10. Having heard the learned counsel for the appellants

and the learned HCGP for the State, the points that would arise

for our consideration are:

(i) Whether the judgment under this appeal suffers from perversity and illegality? and

(ii) Whether the learned Sessions Judge is justified in convicting the appellants for the offence punishable under Sections 341, 326, 307 r/w Section 34 of IPC?

11. This Court being the Appellate Court, in order to

re-appreciate the entire material on record, it is relevant to

consider the entire prosecution witnesses and the documents

relied upon.

12. PW.1-H.K.Ravi, who is the injured in this case,

deposed before the Court that about 2 years back at about 9:00

p.m., when he was proceeding to his house along with CW.2

i.e.PW.2 and taking turn near his house, accused No.1 came

there and assaulted him with the help of chopper on his left

hand, right shoulder, right side neck, left elbow and also on his

head. According to him, accused No.2 was standing at some

distance when the incident was going on. Thereafter, CWs.2, 4

and 5 shifted the injured into the Government Hospital,

Gonikoppa and the doctor treated him. Thereafter, he lodged a

complaint to the police as per Ex.P1. In his cross-examination,

he stated that the quarrel taken place within 15 minutes and he

cried loudly for help. He also admitted that he lodged the second

complaint as per Ex.P2 subsequently.

13. PW.2-H.R.Bopanna, who is the eye witness to the

alleged incident, deposed before the Court that 2 years back, he

himself and PW.1-the injured were coming from town towards

their house and about 9:30 p.m., accused No.1 assaulted PW.1

with chopper and accused No.2 was holding PW.2 tightly. He

further stated that he was not known the reason why the quarrel

has taken place. However, he identified MO.1-chopper. In the

cross-examination, he stated that PW.1 and himself had been to

shock and the police taken his statement. He further stated that

his house situated 1 km distance from the alleged spot of

incident.

14. PW.3-H.Uday kumar, who is a hearsay witness,

turned hostile to the prosecution case. However, he admitted

that he came to know through somebody about the verbal

altercation took place between PW.1 and the accused.

15. PW.4-Aiyappa, who is also a hearsay witness,

deposed that he came to know that on 11.01.2014 at about 9.00

p.m., a quarrel took place in between the accused and PW.1 in

front of the house one Sri.Vali. In the said quarrel, the accused

assaulted PW.1 with the chopper. According to him, he came to

know the said aspect on the next day. This witness is also a

witness for Exs.P3 and P5 i.e., mahazars. On 12.01.2014, the

police seized the weapon i.e., the chopper said to have been

used for the commission of the crime at the instance of accused

No.1. However, this witness turned hostile to that effect.

16. PW.5-H.S.Thimmaiah is a witness for Ex.P6-

Panchanama i.e. seizure of MO.1 at this instance of the accused.

However, this witness turned hostile to the prosecution case.

17. PW.6-P.G. Devaraja is the then Head Constable of

Gonikoppa Police Station, who received the further complaint

from the victim as per Ex.P2 on 21.01.2014. He also

apprehended accused Nos.1 and 2 and produced them before

the Investigation Officer. To that effect, he gave a report as per

Exs.P8 & 9 respectively.

18. PW.7-Dr.Chayakumari is the Scientific Officer, who

examined two articles i.e. one Iron Katti (sickle) and one T-shirt.

She subjected the benzidine test after the scrapings were

obtained from both the articles and after the analysis was found

to be positive as far as both articles are concerned and both the

articles were stained with the blood and it was found to be

human origin and the blood belongs to 'O' group.

19. PW.8-Bhopanna is a witness for Ex.P6-mahazar i.e.

the seizure of MO.1. However, this witness turned hostile.

20. PW.9-Dr.Pemmaiah examined the injured-PW.1.

According to him, he found 10 injuries on the person of PW.1

and accordingly, he issued the wound certificate as per Ex.P14

and the MLC register as per Ex.P15. He gave an opinion in

respect of MO.1 and opined that except the contusion injury that

he found over the person of PW.1, the rest of the injuries can be

caused by MO.1. The said opinion is marked as Ex.P16.

However, in the cross-examination, he admitted that if a person

falls on the glass piece such injuries would caused.

21. PW.10-P.S.Udaya Kumara, the then Head Constable

of Gonikoppa Police Station apprehended accused No.1 on

21.01.2014 and produced him before the Investigation Officer.

22. PW.11.M.S.Bopaiah is the then Head Constable of

Gonikoppa Police Station and who received the MLC intimation

from the Government Hospital, Gonikoppa and thereby, he went

to the Hospital and recorded the statement of PW.1 and

registered the FIR in crime No.3/2014 and transmitted the FIR

through his staff.

23. PW.12-J.E.Mahesh is the then P.S.I of Gonikoppa

Police Station, who conducted the further investigation from

PW.15, received the FSL report as per Ex.P11 and he concluded

the investigation and laid charge sheet against the accused.

24. By meticulous examination of the above witnesses, it

could be seen that PW.1 lodged the complaint immediately after

the incident on 11.01.2014 at about 11.30 p.m., as per Ex.P1

and thereafter, he admitted to the hospital. Subsequently,

PW.15, based on the intimation from the hospital, went to the

hospital and recorded the statement of PW.1 and thereby,

registered the case in crime No.3/2014. PW.1 also identified his

subsequent statement as per Ex.P2. By perusal of the evidence

of PW.1, he categorically stated in his evidence that accused

No.1 assaulted him with the chopper on his left hand, right

shoulder, right side neck, left elbow and on his head. Those

injuries are even found in the wound certificate and PW.9-the

Doctor, who examined PW.1, categorically stated to that effect.

Even the wound certificate-Ex.P14 also depicts those injuries.

Though the learned defence counsel cross-examined this

witness, nothing has been elicited from the mouth of this witness

to disbelieve his version. PW.1 categorically stated that the

reason behind the incident is due to old ill-will.

25. PW.2 is an eyewitness to the alleged incident and he

also clearly stated that accused No.1 assaulted PW.1 with the

chopper and accused No.2 was holding the victim PW.1 tightly.

He further deposed that PW.2 and the others were shifted the

injured to the hospital. Hence, by perusal of the evidence of

PW.1 and PW.2, there is no much contradictions are forthcoming

and there is no reason to disbelieve their evidence in respect of

alleged offence committed by accused Nos.1 and 2. Even

otherwise, the evidence of PW.1 and PW.2 is supported by the

evidence of PW.3 and PW.4. Though PW.3 turned hostile in his

chief examination, but during the cross-examination by the

public prosecutor, he categorically admitted that he came to

know about the incident on 11.01.2014 about 9.00 pm.

26. PW.4, another hearsay witness, though turned

hostile in respect of the seizure of MO.1 under Ex.P6, the

Investigation Officers i.e., PWs.10, 11 & 12 categorically stated

about the seizure of MO.1. Moreover, PW.8, who is an

independent witness, has identified his signature as per Ex.P6.

Hence, the recovery of the MO.1 is proved by the evidence of

PWs.8, 10, 11 & 12. The Doctor, who treated injured also given

an opinion as per Ex.P16 that the injuries shown in the wound

certificate can be caused by MO.1. In such circumstances, the

prosecution proved the recovery of MO.1 also. As stated supra,

there is an earlier ill-will between accused No.1 and PW.1 and

that is the motive behind the incident. The FSL Officer i.e., PW.7

also clearly stated that she examined MO.1-chopper and T-shirt

and both those articles stained with the human blood and that of

'O' group. This evidence of PW.7 corroborated with the evidence

of PW.9-the doctor who issued the wound certificate as per

Ex.P14. Hence, by perusal of the evidence of the said witnesses,

in our considered opinion, the persecution proved the case

against the accused persons for the offences charged against

them.

27. However, learned counsel for accused Nos.1 and 2

alternatively contended that the learned Sessions Judge imposed

the maximum punishment for the offence punishable under

Section 307 of IPC to accused Nos.1 and i.e., imprisonment for

life. Hence, as per the sentencing policy is concerned, it is

argued that since there are lot of discrepancy in the evidence

and there was no such intention or motive on the part of the

accused, this Court may take some lenient view in respect of the

sentence to the accused. The ingredients of Section 307 of IPC

read thus:

"307. Attempt to murder:- whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and it hurt is caused to any person by such act, the offender shall be liable either to [imprisonment of life], or to such punishment as is hereinbefore mentioned.

Attempts by life-convicts - When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.

Illustrations

a) A shoots at Z with intention to kill him, under such circumstances that, if death ensued A would be guilty of murder. A is liable to punishment under this section.

b) A, with the intention of causing the death of a child of tender years, exposes it in a desert place A has committed the offence defined by this section, though the death of the child does not ensue.

c) A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. He has committed the offence defined in this section, and, if by such firing he wounds Z, he is liable to the punishment provided by the latter part of the first paragraph of this section.

d) A, intending to murder Z by poison, purchases poison and mixes the same with food which remains in A's keeping; A has not yet committed the offence in this section. A places the food on Z's table or delivers it to Z's servants to place it on Z's table. A has committed the offence defined in this section.

The first part of Section 307 refers to "an act with such intention or knowledge, and under such circumstances that, if he by the act caused death, he would be guilty of this murder". The second part of Section 307, which carries a heavier punishment, refers to "hurt" caused in pursuance of such an "act".

28. By perusal of the evidence of PW.1, he categorically

stated that accused No.1 assaulted him with the chopper on his

left hand, right shoulder, right side neck, left elbow and on his

head. Even PW.2 also deposed in a similar manner that accused

No.2 held the victim and facilitated accused No.1 to assault and

even the weapon used by the accused also dangerous weapon.

As such, the intention or motive can be gathered by the act of

accused Nos.1 and 2. Hence, in our considered opinion, the

prosecution proved the act of accused comes within the ambit of

Section 307 of IPC.

29. This Court as well as the Hon'ble Apex Court in

several judgments interpreted the ingredients and ambit of

Section 307 of IPC. The Hon'ble Apex Court in the case of State

of Maharashtra vs Balram Bama Patil reported in 1983 (2)

SCC 28 wherein, it held that it is not necessary that a bodily

injury sufficient under normal circumstances took of death

should have been inflicted. To justify the conviction under

Section 307, 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 accused, such intention

may also be deduced from other circumstances, and may even,

in some cases, be ascertained without any reference to all actual

wounds. The section makes a distinction between an act of the

accused and its result, if any. Such an act may not be attended

by any result so far as the person assaulted is concerned, but

still there may be cases in which the culprit would be liable

under this section. It is not necessary that injury actually caused

to the victim of assault should be sufficient under ordinary

circumstance to cause the death of the person assaulted. What

the Court has to see is whether the act, irrespective of its result,

was done with the intention or knowledge and under

circumstances mentioned in this section and an attempt in order

to be criminal need not be the penultimate act. It is sufficient in

law, if there is present an intent coupled with some overt act in

execution thereof. Thus, the Hon'ble Apex Court comes to the

conclusion that the proof of grievous or life threatening hurt is

not a sine qua non for the offence under Section 307 of IPC. The

intention of the accused can be ascertain from the actual injury,

if any, as well as from surrounding circumstances among other

things, the nature of the weapon used and the severity of the

blows inflicted can be considered into infer intent.

30. In the case on hand, the trial Court based on the

evidence of PW.1-injured, PW.2-the eyewitness to the incident

and also the evidence of PW.9-the doctor about the manner in

which the accused committed the incident and also in respect of

the injuries sustained by the injured, held that the accused

committed the offence under Section 307 of IPC. Accordingly,

the trial Court passed the impugned judgement by imposing the

punishment of 10 years for offence punishable under Sections

326 of IPC and also directed them to undergo rigorous life

imprisonment for the offence punishable under Section 307 of

IPC.

31. However, as far as the alternative contention of the

learned counsels for the accused that the sentencing policy of

the learned Sessions Judge imposing maximum punishment of

life sentence in the case has to be reconsidered by this Court, in

our considered opinion, there is sufficient force in the submission

made by the learned counsel for the accused.

32. Thus, taking into consideration the peculiar facts and

circumstance of the case since the prosecution totally failed to

prove the motive on the part of the accused to commit the

murder of the injured, we are of the considered opinion that the

accused person have made out a case for reduction of sentence

under the provision of Section 307 of IPC instead of life

imprisonment.

33. The Hon'ble Apex Court while considering the

provisions of Section 307 of IPC in the case of State of Madhya

Pradesh vs Harjeet Singh and another reported in AIR 2019

SC 1120 held as under:

"5.6 Section 307 uses the term "hurt" which has been explained in Section 319, I.P.C.; and not "grievous hurt" within the meaning of Section 320 I.P.C.

If a person causes hurt with the intention or knowledge that he may cause death, it would attract Section 307.

          This Court in R.          Prakash    v.   State   of
     Karnataka,1 held that :

"...The first blow was on a vital part, that is on the temporal region. Even though other blows were on nonvital parts, that does not take away the rigor of Section 307 IPC....... It is sufficient to justify a conviction under Section 307 if there is present 1 (2004) 9 SCC 27 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 Sections makes a distinction between the act of the accused and its result, if any. 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."

(emphasis supplied)

If the assailant acts with the intention or knowledge that such action might cause death, and hurt is caused, then the provisions of Section 307 I.P.C. would be applicable. There is no requirement for the injury to be on a "vital part" of the body, merely causing 'hurt' is sufficient to attract Section 307 I.P.C"

34. Section 307 uses the term hurt which has been

explained in Section 319 IPC and not grievous hurt within the

meaning of Section 320 IPC. If a person causes hurt with the

intention or knowledge that he may cause death, it would attract

Section 307 of IPC. The Hon'ble Apex Court in the case of Jage

Ram vs. State of Haryana reported in (2015) 11 SCC 366

held that for the purpose of conviction under Section 307 IPC,

the prosecution has to establish (i) the intention to commit

murder; and (ii) the act done by the accused. The burden is on

the prosecution that the accused had attempted to commit

murder of the prosecution witness. Whether the accused person

intended to commit murder of another person would depend

upon the facts and circumstances of each case. To justify a

conviction under Section 307 of IPC, it is not essential that fatal

injury capable of causing death should have been caused.

Although, the nature of injury actually caused may be of

assistance in coming to a finding as to the intention of the

accused, such intention may also be adduced from other

circumstances. The intention of the accused is to be gathered

from the circumstances like the nature of the weapon used,

words used by the accused at the time of the incident, motive of

the accused, parts of the body where the injury was caused and

the nature of the injuries and severity of the blows given etc.

35. The Hon'ble Apex Court in the case of Murali vs.

State represented by inspector of Police reported in 2021

(1) SCC 726 taking into consideration the age of the accused

and complainant has proceeded to reduce quantum of sentence

to 1 year 8 months instead of 5 years and in the case of

Fireman Ghulam Mustafa v. State of Uttaranchal (Now

Uttarakhand) reported in AIR 2015 SC 3101 wherein the

Hon'ble Apex Court converted the offence under Section 307 of

IPC into Section 325 of IPC and sentenced to undergo 3 years

rigorous imprisonment and to pay a fine of Rs.5,000/- and in

default, to undergo rigorous imprisonment for one month.

36. Taking into consideration the principles laid down by

the Hon'ble Apex Court stated supra and also taking into

consideration the peculiar facts and circumstances of the present

case that PW.1 and PW.2 deposed contradictory as per the

participation of accused No.2 and also the incident caused in the

night hours and the some of the witnesses turned to hostile, we

are of the considered opinion that, in the interest of justice, the

punishment imposed on the accused for the offence punishable

under Section 307 of IPC i.e. the life imprisonment has to be

reduced for the period which the accused already undergone i.e.,

11 months 2 days and with a fine of Rs.70,000/- for the offence

under Section 307 of IPC instead of Rs.30,000/- imposed by the

trial Court.

37. For the reason stated above, the points raised in the

present appeals are answered accordingly and the accused

persons have made out a case for interference with the

impugned judgment of conviction and order of sentence by

reducing the sentence. However, the fine amount imposed by

the trial Court for the offence punishable under Section 307 of

IPC i.e. Rs.30,000/- is enhanced Rs.70,000/-. Out of the

enhanced fine amount of Rs.40,000/- is concerned, accused

No.1 has to pay Rs.30,000/- and accused No.2 has to pay

Rs.10,000/-. As far as the other sentences and fine amount

imposed by the trial Court is concerned, the same is kept intact.

The additional fine amount of Rs.40,000/- has to be deposited by

accused Nos.1 and 2, respectively, within one month from the

date of receipt of copy of this order.

36. In view of the above, we pass the following:

ORDER

i. Both the criminal appeals are allowed in part.

      ii.   The   judgment     of    conviction   and   order   of
            sentence    passed      in   S.C.No.41/2014    dated

21.11.2016 by the II Addl. District and Sessions Judge, Kodagu-Madikeri sitting at Virajpet so far as the offence punishable under Section 307 is hereby modified.

iii. The appellants/accused Nos.1 and 2 are sentenced for the offence punishable under Section 307 of IPC for the period which they have already undergone i.e., 11 months two days. Further, they are directed to pay a fine of Rs.70,000/- for the offence punishable under Section 307 of IPC instead of Rs.30,000/-

imposed by the trial Court. Out of the afore said fine amount of Rs.40,000/- is concerned, accused No.1 has to pay Rs.30,000/- and accused No.2 has to pay Rs.10,000/- in default, they are sentence to undergo imprisonment for six months in further.

iv. The accused Nos.1 and 2 shall deposit the fine amount within one month from the date of receipt of copy of this order, failing which, learned Sessions Judge is directed to secure the presence of the accused to commit them to prison to undergo default sentence.

v. Fine amount, if any, already paid by the appellants/accused Nos.1 and 2, the same shall be adjusted towards the fine amount imposed for the offence punishable under Section 307 of IPC as stated supra.

vi. In exercise of powers under Section 357(3) of Cr.P.C., we direct that the amount already deposited by the appellants and the remaining fine amount deposited by the accused i.e., a total sum of Rs.1,30,000/- shall be paid to PW.1-H.K.Ravi (injured) on proper identification.

     vii.    The   judgment    of    conviction   and   order   of
             sentence    passed     in   S.C.No.41/2014    dated

21.11.2016 by the II Addl. District and Sessions Judge, Kodagu-Madikeri sitting at Virajpet so far as the offence punishable under Section 326 of IPC, is kept intact.

viii. Registry is directed to send back the trial Court records along with copy of the order to the II Addl. District and Sessions Judge, Kodagu-

Madikeri sitting at Virajpet, forthwith.

Sd/-

JUDGE

Sd/-

JUDGE VM