Karnataka High Court
H N Pandukumar vs State By K R Pete on 1 September, 2023
Bench: Shivashankar Amarannavar
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CRL.A No. 218 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO. 218 OF 2012
BETWEEN:
1. H.N PANDUKUMAR,
S/O H.V NAGARAJU,
AGED ABOUT 28 YEARS,
2. H.V NAGARAJEGOWDA,
S/O LATE VENKATEGOWDA,
AGED ABOUT 58 YEARS,
BOTH APPELLANT NO.1 AND 2 ARE
RESIDING AT VADAKESHETTAHALLI GRAMA,
K.R. PETE TALUK, MANDYA DISTRICT.
...APPELLANTS
(BY SMT. ARCHANA MURTHY, ADVOCATE)
Digitally signed by AND:
LAKSHMINARAYANA
MURTHY RAJASHRI
Location: HIGH
COURT OF 1. STATE BY K.R.PETE,
KARNATAKA
RURAL POLICE STATION.
...RESPONDENT
(BY SRI. M.DIVAKAR MADDUR, HACGP)
THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO
SET ASIDE THE ORDER DATED:24.01.2012 PASSED BY THE
ADDL. S.J., MANDYA IN S.C.NO.68/09 - CONVICTING THE
APPELLANTS/ACCUSED FOR THE OFFENCE P/U/S 326 R/W SEC.
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CRL.A No. 218 of 2012
34 OF IPC. AND THE APPELLANT/ACCUSED ARE SENTENCED TO
SUFFER R.I. FOR 2 YEARS AND TO PAY FINE OF RS.2,000/-
EACH, IN DEFAULT TO SUFFER R.I. FOR 3 MONTHS FOR THE
OFFENCE P/U/S 326 R/W 34 OF IPC.
THIS APPEAL, COMING ON FOR DICTATING JUDGMENT,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed against judgment of conviction
and order of sentence dated 24.01.2012 passed in S.C.
No.68/2009 by the Additional District and Sessions Judge,
Mandya, convicting appellant/accused Nos.3 and 4 for
offence punishable under Section 326 r/w Section 34 of
IPC sentencing to undergo rigorous imprisonment for 2
years and to pay a fine of Rs.2,000/- each, in default to
undergo rigorous imprisonment for 3 months.
2. The factual matrix of the case is that:-
On 04.09.2008 at about 4:00 p.m. complainant's
brother Mahadevegowda, brother-in-laws Swamygowda,
Kumara, Devaraja and Suresha had assaulted with sickle
and stone on his another brother Krishnegowda and his
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CRL.A No. 218 of 2012
son Paramesha in connection with the dispute over the
passage. On that day, the complainant had gone with
them to file complaint at K.R.Pete Police Station. After
filing complaint, they returned to the village at 11:30 p.m.
When the complainant was going near his house, his
brother Mahadevegowda, Kumara, Nagarajegowda and
Suresha stopped the complainant and his son Yogesha and
abused them in filthy words for having given Police
complaint. The accused Nagarajegowda assaulted the
complainant with club on his head and attempted to kill
him. The son of Nagarajegowda namely Pandu assaulted
on his right side of head and right eye with club and
thereby caused bleeding injury and attempted to kill him.
3. The mother-in-law of the complainant
intervened to stop the quarrel. She was assaulted by
accused Pandu on the right side of the head and caused
bleeding injury. The accused Kumara also assaulted her
with clubs on her right hand finger. When the
complainant's son Yogesha intervened to stop the quarrel
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and save them, the accused Mahadevegowda assaulted
him with club on his left shoulder. The accused Suresha
caught hold of his son's head pulled and pushed with
hands and bet him with hands and thereby all the accused
were attempted to kill the complainant and his son.
4. On hearing the galata, the witnesses
Devarajegowda and Nagaraju came and stopped the
quarrel. They shifted the injured to K.R.Pete Hospital in
an auto rickshaw. The complainant was referred to K.R.
Hospital, Mysore for further treatment. While the
complainant was in K.R.Pete Hospital, the police recorded
his statement as per Ex.P1 in the presence of Medical
Officer. A case came to be registered on the said
complaint in Crime No.198/2008 in K.R.Pete Rural Police
Station for offences punishable under Section 143, 341,
504, 323, 324 and 307 r/w Section 149 of IPC. After
investigation charge sheet came to be filed against
accused Nos.1 to 5 for offences punishable under Sections
143, 341, 504, 323, 324 and 307 r/w Section 149 of IPC.
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The Magistrate committed the case to the Sessions Court.
Charge came to be framed against accused Nos.1 to 5 for
offences punishable under Sections 143, 341, 307, 324
and 323 r/w Section 34 of IPC.
5. The prosecution examined 7 witnesses as
PWs.1 to 7 and got marked documents Exs.P1 to P11 and
material objects as MOs.1 to 7. The statement of accused
were recorded under Section 313 of Cr.P.C.
6. After hearing the arguments on both sides the
trial Court formulated the points for consideration and
convicted only the appellant/accused Nos.3 and 4 for
offence punishable under Section 326 of IPC r/w Section
34 of IPC and acquitted accused Nos.1, 2 and 5. Accused
Nos.3 and 4 have challenged the said judgment of
conviction and order of sentence in this appeal.
7. Heard arguments of learned counsel for the
appellants and learned HCGP for the respondent-State.
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8. The learned counsel for the appellants argued
that there is a case and counter case and the accused in
the counter case have been acquitted and three of the
accused in the present case i.e., accused Nos.1, 2 and 5
have been acquitted and only these appellants have been
convicted. The appellants are not having enmity with the
complainant and his family members and accused No.4 is
the pancha in the village and he tried to solve the dispute
between the two brothers i.e., accused No.1 and the
complainant. There is no motive for the appellants to
assault the injured. There are material contractions in the
evidence of PW.1-complainant/injured, PW.2 injured and
eyewitness PW.3. The learned Sessions Judge giving
benefit of doubt has acquitted accused Nos.1, 2 and 5 and
therefore these appellants being accused Nos.3 and 4 also
entitled for benefit of doubt and acquittal for offence
punishable under Section 326 of IPC. In the complaint
PW.1 has stated that when they were returning after
giving complaint the accused stopped them and assaulted
them, but, in his evidence he has stated that he was in his
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house. At that time, the accused came there and when
he came out, assaulted him, his son and mother-in-law.
Therefore, there is a contradiction in the evidence of PW.1
and the averments of the complaint-Ex.P1. PW.3 who is
stated to be panch to seizure mahazar and eyewitness to
the incident and he is running shop in the house of PW.1
and he is an interested witness. There is a contradiction in
the evidence of PW.1 and PW.2 with regard to overt acts
of accused No.4. As per PW.1, accused No.4 has
assaulted on his right shoulder with club and there is no
corresponding injury as per the Wound Certificate Exs.P4
and 5. The prosecution has not established the motive for
these appellants to commit the offence. On these grounds
the learned counsel sought for acquittal of the appellants.
9. Learned HCGP argued that the trial Court on
proper appreciation of the evidence on record has rightly
convicted the appellants for offence punishable under
Section 326 of IPC. He has supported the reasons
assigned by the trial Court. He has further argued that
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the evidence of PWs.1, 2 and 3 is sufficient to convict the
appellant/accused Nos.3 and 4 for offence punishable
under Section 326 r/w Section 34 of IPC. The accused
Nos.3 and 4 have assaulted with club on the head of PW.1
and caused grievous hurt which is corroborated by the
medical evidence of the Doctor-PW.5 and Wound
Certificates Exs.P4 and P5. On these grounds he has
sought for dismissal of the appeal.
10. On the grounds made out and considering the
arguments advanced, the following point arise for my
consideration.
"Whether the trial Court erred in convicting
the appellant/accused Nos.3 and 4 for the
offence punishable under Section 326 r/w
Section 34 of IPC."
11. My answer to the above point is partly in the
affirmative for the following reasons.
The motive for the incident is that PW.1 had gone
along with his brother Krishnegowda and his son
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Paramesha to file a complaint against the brother-in-law's
of accused No.1 namely Swamygowda, Kumara, Devaraju
and Suresha. It is alleged that at about 4.00 p.m. on the
same day, they had assaulted Krishnegowda and others in
connection with passage dispute. When they were
returning to the house after filing the compliant, when
they were near their house at about 11.30 p.m. the
accused Nos.1 to 5 stopped his son, abused him for having
filed a complaint against them.
12. As per the averments of the complaint-Ex.P.1
accused No.4 tried to assault with club on the head of
PW.1-complainant. PW.1 in his evidence has deposed that
accused No.4 assaulted him with club on his right shoulder
and he fell down and with the same club accused No.3
assaulted on right side of his head and he sustained
bleeding injury. In the complaint-Ex.P1, it is also stated
that accused No.3 assaulted complainant-PW.1 with club
on the head. There is a material contradiction in the
averment of the complaint filed by PW.1 as per Ex.P1 and
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evidence of PW.1 with regard to overt act of accused No.4.
As per evidence of PW.1, accused No.4 has assaulted him
with club on his right shoulder, but on perusal of the
Wound Certificate Exs.P4 and P5 there is no corresponding
injury on the right shoulder of PW.1.
13. PW.2 is son of PW.1 who has deposed that
accused No.4 assaulted his father with club on right side of
his head and accused No.3 who is the son of accused No.4
assaulted his father with club on right side of his head and
on right eyebrow. Upon looking to the evidence of PWs.1
and 2 there is contradiction regarding the overt act of
accused No.4. As per evidence of PW.1, accused No.4 has
assaulted with club on his right shoulder, but, as per
evidence of PW.2, accused No.4 has assaulted with club on
right side of head of PW.1. As per averments of the
complaint-Ex.P1 one Devarajegowda (PW.4) and Nagaraju
(PW.3) have pacified the quarrel. PW.4 has not supported
the case of the prosecution and he has been treated as
hostile. PW.3 has deposed that PW.1 and accused No.4
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were quarreling, at that time, accused No.1 gave club to
accused No.3 and accused No.3 assaulted with club on the
head of PW.1 and at that time he sustained injury on his
head and right eye and he has assaulted two times. PW.3
has not stated any overt acts of the accused No.4
assaulting PW.1 with club on his head. As per evidence of
PW.3 it is only accused No.3 who assaulted with a club on
the head of PW.1 twice and as a result he sustained injury
on head and right eye.
14. The trial Court has not considered the evidence
of PW.3. As per Wound Certificate Ex.P4, there are two
injuries one on head and another on eyelid of PW1. The
wound on the head is measuring "3 X 1" cm bone deep
and fracture of the bone has been felt. The doctor PW.5
who has issued Ex.P.4 wound certificate has opined that
injury No.1 is grievous in nature and injury No.2 is simple
in nature. Ex.P5 is also Wound Certificate issued by K.R.
Hospital which reveal that C.T. scan of head of PW.1 was
taken wherein it is revealed that there is a comminuted
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and depressed fracture in the right frontal region and he
has been referred to higher centre for treatment. On
considering Exs.P4 and P5 wound certificates of PW.1, he
has sustained one injury on head and another injury on his
eyelid. As per evidence of PWs.1 and 3 it is only accused
No.3 who has assaulted with club on the head of PW.1.
Therefore, the assault by accused No.4 with club on the
head of PW.1 as deposed by PW.2 appears to be doubtful.
In view of evidence of PWs.1 and 3, there is only one
injury on the head. Considering the above aspects, the
trial Court has erred in convicting the appellant
No.2/accused No.4 for offence punishable under Section
326 of IPC.
15. PWs.1 to 3 have specifically stated the assault
by accused No.3 with club on the head of PW.1. The
Wound Certificate-Ex.P.4 corroborates the said overt act of
accused No.3. The said injury sustained by PW.1 on his
head is a fracture and it is a grievous injury. Considering
the said aspects the trial Court is right in convicting the
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appellant No.1/accused No.3 for the offence punishable
under Section 326 of IPC.
16. At this stage, the learned counsel for the
appellant submits that looking to the facts and
circumstances, case and counter case, acquittal of the
accused in counter case, injury to the appellants in the
counter case, the sentence imposed on accused No.3 is on
higher side and prays to reduce the sentence.
17. The learned High Court Government Pleader
submits that the sentence imposed by the trial Court on
accused No.3 is proper and adequate.
18. The trial Court has imposed sentence of
rigorous imprisonment for 2 years and to pay fine of
Rs.2,000/-. Taking into consideration the submission of
the learned counsel for the appellant that the assault by
accused No.3 on PW.1 is in the quarrel between two
groups, injuries sustained by the appellants, it is deemed
fit to reduce the sentence of imprisonment and enhance
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the fine amount. The sentence of imprisonment is
reduced to 1 year and as a result, fine is enhanced to
Rs.2,00,000/-. In the result the following:-
ORDER
i. The appeal is allowed-in-part.
ii. The judgment of conviction and
order of sentence with regard to
appellant No.1/accused No.3 for
offence punishable under Section
326 of IPC is affirmed. The
sentence of imprisonment is reduced
to 1 year and fine is enhanced to
Rs.2,00,000/-.
iii. The conviction of the appellant
No.2/accused No.4 for the offence
punishable under Section 326 of IPC
is set-aside. The appellant
No.2/accused No.4 is acquitted for
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offence punishable under Section
326 of IPC.
iv. Out of the fine amount a sum of
Rs.1,90,000/- is ordered to be paid
as compensation to PW.1.
Sd/-
JUDGE
HKV
