Karnataka High Court
Akash S/O Nivarti Jamadar vs The State Of Karnataka on 28 June, 2023
Bench: Hemant Chandangoudarpresided Byhcj
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CRL.A No. 200027 of 2021
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL APPEAL NO.200027 OF 2021
BETWEEN:
1. AKASH S/O NIVARTI JAMADAR,
AGE: 23 YEARS, OCC: AGRICULTURE,
R/LADAWANTI, TQ. BASAVAKALYAN,
DIST.BIDAR - 585 419.
...APPELLANT
(BY SRI. MAHANTESH H. DESAI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
THROUGH MANTHAL P.S.,
REPRESENTED BY ADDL. SPP
HIGH COURT OF KARNATAKA,
Digitally signed BENCH AT KALABURAGI-585 103.
by LUCYGRACE
Location: HIGH
COURT OF
KARNATAKA
...RESPONDENT
(BY SRI. GURURAJ V. HASILKAR, HCGP)
THIS CRL.A. IS FILED U/S.374 (2) OF CR.P.C BY THE
ADVOCATE FOR THE APPELLANT/ACCUSED, PRAYING TO
SET ASIDE THE JUDGMENT OF CONVICTION DATED
28.01.2021 AND SENTENCE DATED 03.02.2021 PASSED BY
THE II ADDL. DIST. AND SESSIONS JUDGE, BIDAR SITTING AT
BASAVAKALYAN IN SESSIONS CASE No.261/2017
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CRL.A No. 200027 of 2021
CONVICTING THE APPELLANT/ACCUSED NO.1 FOR THE
OFFENCE P/U/S 307 OF IPC.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 374(2) of Cr.P.C. is filed
challenging the judgment of conviction and order of sentence
dated 28.01.2021 passed by the II Addl. District and Sessions
Judge, Bidar, sitting at Basavakalyan in S.C.No.261/2017, by
which, the appellant-accused No.1 was convicted for the
offence punishable under Section 307 of IPC and sentenced to
undergo rigorous imprisonment for a period of seven years and
to pay a fine of Rs.20,000/- and in default of payment of fine to
undergo simple imprisonment for six months.
02. The case of the prosecution is that, when the
complainant started construction of his house in an open plot
belong to him, at that time, accused No.4 obstructed the
construction without any reason. On 01.12.2016 at about 7.00
p.m., accused No.4 picked up a quarrel with CW.14 i.e., the
wife of CW.6, who is the brother of the complainant. The
brothers of the complainant went to the house of accused No.4
and advised him not to quarrel. On 09.12.2016 at about
9.15 p.m., when the brother of the complainant i.e., CW.6 and
others were standing at Ambedkar Chowk in their village,
accused No.1 came there and picked up a quarrel with CW.6
and took him towards his house. Accused No.2 caught his hair,
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CRL.A No. 200027 of 2021
accused No.3 caught his hands and accused No.1 stabbed CW.6
on his stomach with a knife. The police, after investigation,
submitted the charge sheet for the aforesaid offences.
03. The prosecution, to prove its case, examined PWs.1
to 16 and exhibited documents at Exs.P1 to P17 and marked
the material objects at MOs.1 to 3.
04. The learned Sessions Judge, after appreciating the
evidence on record, passed the impugned judgment of
conviction.
05. Heard the learned counsel for the appellant and the
learned High Court Government Pleader for the respondent-
State.
06. PW.3-Limbaji, the injured witness has deposed that
he was assaulted by the accused with a knife on his stomach,
due to which he sustained grievous injuries. Nothing was
elicited in his cross-examination to disbelieve the said
statement.
07. PW.4 and PW.13 are the eyewitnesses to the
incident, and they have deposed that the accused assaulted the
injured witness namely, PW.3 with a knife on his stomach, due
to which he sustained grievous injuries. Nothing was elicited in
the cross-examination so as to disbelieve their statements.
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08. PW.5 is the complainant and eyewitness to the
incident and he has supported the case of the prosecution.
Nothing was elicited in the cross-examination to disbelieve his
statement.
09. PW.15-Doctor, who examined and treated the
injured witness, in his examination-in-chief has stated that
PW.3 sustained injuries on his stomach which are grievous in
nature.
10. The accused has failed to dislodge the evidence of
the prosecution witnesses who have proved that PW.3
sustained grievous injuries due to the assault made by the
appellant herein by stabbing on his stomach with a knife.
11. The appellant has been convicted for the offence
punishable under Section 307 of IPC. To constitute an offence
punishable under Section 307 of IPC, the intention of the
accused must be to cause the death of the victim. In the
instant case, neither the injured witness nor the eyewitnesses
have stated that the accused with an intention to cause the
death of PW.3 has stabbed him on his stomach with a knife.
Hence, in the absence of any intention to cause the death of
PW.3, the judgment, convicting the appellant-accused No.1 for
the offence punishable under Section 307 of IPC is
impermissible.
12. Admittedly, PW.3 has sustained injuries on his
stomach due to the assault made by the appellant herein.
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13. The term grievous hurt is defined under Section 320
of IPC and the kinds of hurt enumerated therein are designated
as grievous. Eighth kind to Section 320 of IPC specifies that,
any hurt which endangers life or which causes the sufferer to
be during the space of twenty days in severe bodily pain, or
unable to follow his ordinary pursuits is grievous.
14. Perusal of the discharge summary at Ex.P13
indicates that, the injured witness namely, PW.3 was
discharged within ten days from the date he was admitted in
the hospital and the prosecution has not placed any material
that the injured witness from the date of incident was suffering
from bodily pain or unable to follow his ordinary pursuits for a
period of 20 days. Hence, the prosecution has failed to
establish that the injury sustained by the PW.3 was grievous.
However, the prosecution has established its case beyond all
reasonable doubt that the accused has caused hurt voluntarily
by using dangerous weapon i.e., knife and the same is an
offence under Section 324 of IPC and punishable under Section
325 of IPC.
15. The appellant - accused No.1 was in judicial custody
for a period of 8 months. The appellant-accused No.1, the
complainant and the injured witnesses are the relatives. The
dispute between the parties arises out of the water discharged
by the complainant used for construction of house in front of
the house of the appellant-accused No.1. Under such
circumstances, it would be suffice, if the appellant-accused
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No.1 is convicted for the offence punishable under Section 325
of IPC and sentence to undergo imprisonment for a period
which he has already undergone and pay fine of Rs.70,000/-.
Accordingly, I proceed to pass the following;
ORDER
I. Criminal appeal is allowed in part.
II. The impugned judgment of conviction and order of
sentence passed by the learned II Additional
District and Sessions at Bidar, sitting at
Basavakalyan in Sessions Case No.261/2017 is
hereby modified.
III. The appellant-accused No.1 is hereby convicted for
the offence under Section 324 of IPC and
punishable under Section 325 of IPC and sentenced
to undergo imprisonment for a period which he has
already undergone during trial and to pay a fine of
Rs.70,000/- and in default of payment of fine to
undergo simple imprisonment for a period of six
months.
IV. It is noticed that the appellant has already
deposited a sum of Rs.20,000/-. Hence, the
additional fine amount of Rs.50,000/- to be
deposited within 30 days from the date of receipt of
a certified copy of this judgment.
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V. Out of the fine amount of Rs.70,000/-, a sum of
Rs.60,000/- to be released in favour of PW.3 -
injured witness and the balance amount of
Rs.10,000/- to be released in favour of the State
Government.
Sd/-
JUDGE
LG/KJJ
