Karnataka High Court

Shri.Puttappa S/O Madevappa ... vs The State Of Karnataka on 1 February, 2024

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                                                             NC: 2024:KHC-D:2313
                                                       CRL.A No. 100273 of 2015




                      IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                            DATED THIS THE 1ST DAY OF FEBRUARY, 2024
                                              BEFORE
                              THE HON'BLE MR JUSTICE RAJESH RAI K
                             CRIMINAL APPEAL NO. 100273 OF 2015 (C)


                   BETWEEN:

                   SHRI. PUTTPPA
                   S/O. MADEVAPPA HARANAGERI,
                   AGE: 20 YEARS, OCC: NIL,
                   R/O: MOTEBENNUR, TQ: BYADAGI,
                   NOW AT HARANGERI.
                                                                    ...APPELLANT
                   (BY SRI.ROHIT PATIL ADVOCATE FOR
                       SRI.SHRIKANT T.PATIL, ADVOCATE)


                   AND:

                   THE STATE OF KARNATAKA
                   R/BY BYADAGI PS,
                   R/BY S.P.P. DHARWAD,
                   HIGH COURT OF KARNATAKA
                   BENCH AT DHARWAD.
                                                                  ...RESPONDENT

Digitally signed   (BY SRI.M.B.GUNDAWADE, ADDL.STATE PUBLIC PROSECUTOR)
by
SHIVAKUMAR
HIREMATH
Date: 2024.02.09
12:12:50 +0530
                          THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
                   CR.P.C.,SEEKING THAT THE ORDER OF CONVICTION AND SENTENCE
                   PASSED IN SC NO.57/2012 DATED 8.12.2015 O/P/U/S 307 OF IPC
                   ON THE FILE OF II ADDL. DIST. AND SESSIONS JUDGE, HAVERI,
                   SITTING AT RANEBENNUR BE SET ASIDE IN THE ENDS OF JUSTICE.


                          THIS CRIMINAL APPEAL COMING ON FOR HEARING, THIS DAY,
                   THE COURT DELIVERED THE FOLLOWING:
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                                              NC: 2024:KHC-D:2313
                                     CRL.A No. 100273 of 2015




                            JUDGMENT

This appeal, by the convicted accused, directed

against the judgment of conviction and order of sentence

dated 08.12.2015 passed in S.C.No.57/2012 by the II

Additional District and Sessions Judge, Haveri (sitting at

Ranebennur) wherein the learned Sessions Judge

convicted the accused/appellant for the offence punishable

under Section 307 of IPC with simple imprisonment for a

period of four years with a fine amount of Rs.4,000/- and

in default to pay the fine amount, he shall undergo simple

imprisonment for a period of six months.

2. The factual matrix of the prosecution case in

brief are -

Appellant/accused-Puttappa is son of Mahadevappa

who is brother of the injured P.W.2-Ganeshapa. The

daughter of injured P.W.2 i.e., PW.1, lodged a complainant

as per Ex.P1 alleging that on 15.11.2011 at about 11.00

a.m. her father-PW.2, left the house in order to graze the

cow near Gundenahalli cross road. Later, at about 1.00

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p.m. Guddappa Kadanavar-P.W.5, came to the house of

complainant and informed her mother that P.W.2 had

sustained injury on his neck and he found him near

Gundenahalli cross. On hearing the same, complainant and

her mother rushed to the spot and at that time, they

witnessed that injured had sustained knife injuries on his

neck and there were people gathered around him. On

enquiry, she came to know that one unknown person had

assaulted the injured-Ganeshappa with the knife and fled

away from the spot. Thereafter, the injured was shifted to

the Government District Hospital, Haveri, where the

doctors gave first aid and thereafter they shifted the

injured to KIMS Hospital, Hubballi for higher treatment.

3. Subsequently, on 15.11.2011, P.W.1-

complainant, lodged the complaint before the respondent-

police as per Ex.P1 and the same was registered in crime

No.154/2011 dated 15.11.2011 against unknown person

as per Ex.P22 by PW.15, since, the injured was not a

position to speak due to injury sustained on his neck and

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he was unable to give any statement for a period of 20

days. Subsequently, on 02.012.2011, the police

interrogated the injured by way of written questionnaires,

at that time, he had written the name of the accused who

assaulted him as per Ex.P2. In furtherance, on 07.12.2011

once again respondent-police recorded the statement of

the injured in a similar manner, wherein the injured stated

that, on the date of the incident, the accused being his

brother's son demanded for share in ancestral property,

for which, though P.W.2 agreed, the accused assaulted

him with the knife on his neck and ran away from the

spot. Hence, based on the said statement of the injured,

the Investigating Officer-P.W.15 conducted further

investigation and arrested the accused and recorded his

the voluntary statement and based on the same, the

weapon used in the commission, M.O.6, was seized under

mahazar Ex.P15. Thereafter, he recorded the statement of

all the witnesses and obtained medical certificate from the

doctor and laid the charge sheet against the accused for

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the offence punishable under Section 307 of IPC before

the committal court.

4. On committal of the case before the Sessions

Court, the learned Sessions Judge framed charges against

the accused for the aforesaid offence and read over the

same to the accused. However, the accused denied the

charges leveled against him and claimed to be tried. The

defense of the accused is of total denial and that he has

been falsely implicated in this case.

5. In order to prove the charges leveled against

the accused, the prosecution in total examined 16

witnesses i.e, PW.1 to PW.16 so also got marked 29

documents as per Exs.P1 to P29 and got identified 7

materials objects as per M.Os.1 to 7.

6. On assessment of oral and documentary

evidence placed before the learned Sessions Judge, the

learned Sessions Judge convicted the accused for the

charges leveled against him and sentenced him as stated

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supra. The legality of the said judgment is challenged

under this appeal.

7. I have heard learned counsel Sri.Rohit S.Patil

for the appellant/accused so also the learned Additional

SPP for the State.

8. Learned counsel for the appellant/accused

vehemently contended that the judgment under this

appeal suffers from perversity and illegality. The learned

Sessions Judge convicted the accused without properly

appreciating the evidence available on record and only

based surmises and conjectures. The evidence of material

witnesses, P.W.2-injured and P.W.1-complainant suffers

from serious contradictions and omissions. In such

circumstances, the prosecution utterly failed to prove the

charges leveled against the accused for the offence

punishable under Section 307 of IPC. He would further

contend that appellant/accused is falsely implicated in this

case, as his name was brought on record in the case, after

lapse of 20 days from the date of the incident, based on

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Exs.P2 and P3 questionnaire prepared by the police. The

evidence of P.W.2 cannot be the sole basis for convicting

the accused since there are no other eye-witnesses in-

support of the case of the prosecution has been examined.

He would further contend that, accused has deserted the

village in which the alleged incident took place and

residing separately since 25 years and as such there is

evidence for proving his presence in the village and also,

PW.2 has profoundly admitted in his evidence that he ahd

agreed to give share in the ancestral property and as such

there seems no intention or motive forthcoming from the

records to commit the crime by the accused. Accordingly,

on these grounds, he prays to allow the appeal by setting

aside the impugned judgment.

9. Per contra, refuting the submission made by the

learned counsel for the appellant/accused, the learned

Additional SPP would vehemently contend that judgment

under this appeal does not suffer from any infirmity or

illegality and the learned Sessions Judge convicted the

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accused based on the cogent evidence placed by the

prosecution i.e., P.W.2-injured and P.W.1-complainant so

also the persons who shifted the injured to the hospital.

The evidence of P.W.2 has to be weighed in a higher

degree perspective as he being the injured witness and he

categorically deposed that, accused caused the injury on

his neck by M.O.6. He further contend that the police

made several attempts to record the statement of PW.2,

but he was unable to speak due to the injury sustained on

his neck. However, on 02.12.2011 and 07.12.2011 he

revealed the name of the perpetrator in writing. In such

circumstances, the evidence of P.W.2 cannot be discarded.

The prosecution also proved recovery of M.O.6-knife, used

for commission of the crime under Ex.P15 through the

evidence of P.Ws.8 and 14 and the prosecution has also

proved the recovery of bloodstained clothes M.Os.7 and 8

under Ex.P18. Accordingly, he prays to dismiss the appeal

by confirming the judgment of conviction by the learned

Sessions Judge.

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10. Having heard the learned counsel for the

appellant/accused and learned Additional SPP for the

State, the points that would arise for my consideration

are:

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

2) Whether the learned Sessions Judge was justified in convicting the accused for the offence punishable under Section 307 of IPC?

11. As both these points are inter-linked to each

other, they are taken up together for consideration.

Accordingly, this court being the appellate court, on re-

appreciation and On careful glance of the of the entire

evidence available on record, I find;

P.W.1-Shakuntala, complainant and daughter of the

injured P.W.2-Ganeshappa. She re-iterates the contents of

Ex.P1-complaint and deposed that, on the date of the

incident, father P.W.2 left the house in order to graze the

cow in his field near the Gundenahalli cross road. Further,

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at about 1.00 p.m. P.W.5 informed her mother that P.W.2

had sustained injury on his neck and he was at

Gundenahalli cross. On hearing the same, the complainant

and her mother rushed to the spot and they witnessed

P.W.2-Ganeshappa had sustained injury on his neck.

Thereafter, they shifted the injured to the Government

Hospital, Haveri and subsequently, KIMS Hospital,

Hubballi. She also deposed that, her father was not in a

position to speak for a period of 20 days and thereafter he

stated in writing that, the accused inflected injury on his

neck.

P.W.2-Ganeshappa, injured in this case, deposed that

he has two brothers and after the death of his father,

partition had taken place in between them and each of

them have got 1 acre of land. He was cultivating the land

belonging to his brother Mahadevappa, who is the father

of the accused/appellant. He further deposed that, father

of the accused obtained huge loan. Since, the accused had

left the village 25 years back, PW.2 was cultivating the

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land of his brother who is the father of the

accused/appellant. However, the accused insisted him to

give back the property, but the elders of the family and

villagers advised him to pay the loan obtained by his

father before obtaining the possession of the land. For

which, the accused had developed ill-will against PW.2.

Hence, on the date of incident, when PW.2 had been to

the land to graze the cow, the accused demanded to hand

over the property belonging to his father. Though, PW.2

agreed to hand over the property belonging to father of

the accused, the accused stabbed him on his neck and fled

away from the spot. Thereafter, he screamed for help and

accordingly, the villagers and family members shifted him

to the hospital and he was not in a position to speak for

about 20 days because of injuries sustained.

Subsequently, on 02.12.2011 and 07.12.2011, in a

written questionnaire by the police, he wrote the name of

the accused and gave a statement to the police by stating

that accused had inflicted the injuries on his neck.

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P.W.3-Channamma, wife of P.W.2-injured, re-

iterated the version of P.W.1 and testified that after the

incident, herself, P.W.1 and P.W.5 and with the help of

villagers shifted the injured initially to the Government

Hospital, Haveri and thereafter KIMS Hospital, Hubballi.

P.W.4-Guddappa T.Dalawai is one of the

circumstantial witness, turned hostile to the prosecution

case.

P.W.5-Guddappa H.Kadanavar, informed P.W.1

regarding the injuries sustained by PW.2 and also deposed

that, himself, P.Ws.1&3 and villagers shifted the injured to

the hospital.

P.W.6-Bangarappa, witness for the spot mahazar

wherein, both stained and unstained mud were seized in

M.O 4 and 5 as per Ex.P10 and photographs as per

Exs.P.11 to 13.

P.W.7-Channabasappa, witness to the seizure of

clothes of the injured in M.Os.1 to 3 under Ex.P14.

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P.W.8-Halappa, witness of recovery of M.O.6-knife,

used for commission of the crime under Ex.P15 and also

clothes of the accused as M.O.7 under Ex.P18.

P.W.9-Malakanagouda Patil, co-pancha for Ex.P14.

P.W.10-Dr.Shubham S.Agarwal, Medical Officer,

issued certificate as per Ex.P19 and also has given his

opinion that, P.W.2-injured was not in a position to give

statement on 07.12.2011.

P.W.11-Veerabhadrappa, doctor, gave first aid to the

injured at Government Hospital, Haveri and issued Wound

Certificate as per Ex.P20.

P.W.12-Chidambarmurthy, Assistant Executive

Engineer, prepared spot sketch as per Ex.P21.

P.W.13-Sankappa K.Magod, the then Head

Constable, arrested the accused/appellant.

P.W.14-Ashok B.Angadi, co-pancha to Ex.P15

wherein, M.O.6-knife is recovered.

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P.W.15-Basavaraj C.Kallammanavar, Investigating

Officer, conducted investigation and laid charge sheet

against the accused for the aforesaid offences.

P.W.16-Radha S, Scientific Officer, issued FSL report

as per Ex.P28 in respect of injured and seized articles, i.e.,

clothes of the accused and knife.

12. On careful glance of the above evidence, in

order to prove the guilt of the accused, the prosecution

mainly relied upon the evidence of P.W.2-injured and

Exs.P2 and P3. On careful perusal of the evidence of P.W.2

as discussed supra, he categorically deposed that, on the

date of the incident, accused came to the spot while he

was grazing the cow in his field and demanded his father's

share in the ancestral property. Though he consented for

the same, the accused stabbed him by M.O.6-knife on his

neck. Thereafter, he was shifted to the hospital. Though

the police made earliest efforts to record the statement of

the injured-PW.2, as he was unable to speak for 20 days,

finally, on 02.12.2011 and 07.12.2011 they were able to

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record the statement of accused by way of writing as per

Ex.P2 and 3, PW.2 informed the name of the accused and

P3. This version of P.W.2 corroborates the evidence of the

doctor who treated the injured initially and issued Wound

Certificate as per Ex.P20. On careful perusal of Ex.P20, the

same depicts that injured sustained stab injury on his right

side neck. Further, P.W.11-doctor who treated the injured

subsequently deposed before the court that, injured

sustained injury on trachea (wind pipe) and the said injury

is grievous in nature. Hence, on conjoint reading of the

evidence of P.W.2-injured and P.W.11-doctor coupled with

Ex.P20, it can be gathered that, P.W.2 was not in a fit

condition to speak for a period of 20 days after the

incident. Thereafter, he informed the name of the accused

under Exs.P2 and P3 and subsequently, police arrested the

accused. Hence, the contention of the learned counsel for

the appellant that there is a delay in lodging the complaint

and the appellant/accused has been falsely implicated in

this case does not hold any water.

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13. Further, on perusal of the evidence of P.W.1-

daughter and P.W.3-wife of the injured, they categorically

deposed that on the date of the incident, P.W.5 informed

them about the injury sustained by P.W.2. Thereafter,

they rushed to the spot and shifted the injured to the

hospital. Nevertheless, P.W.1 lodged the complaint at the

earliest point of time i.e., on the same day on 15.11.2011

and the same was registered against unknown person.

Subsequently, they identified the accused and deposed

accordingly before the court. Further, on perusal of the

evidence of P.W.2, he categorically deposed that he was

cultivating the land belonging to the father of the accused.

To that effect, Ex.P27 was produced by the prosecution.

Hence, accused demanded P.W.2, the share of his father

in the property and when he was advised to honor the

payment of debt and then take the possession of the

property, he had developed ill-will against P.W.2, hence

the prosecution has also proved the motive for the

commission of crime. Moreover, the prosecution has

proved recovery of M.O.6-knife, used for commission of

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the crime by the accused under seizure mahazar Ex.P16

and witness for the same i.e., P.Ws.8 and 14 have

supported the case of the prosecution. The Investigating

Officer also sent the said knife for medical examination

and obtained FSL report as per Ex.P28. The Scientific

Officer who is examined as P.W.16, in her evidence,

deposed that bloodstains found on M.O.6-knife, is that of

human blood and of Blood group 'A'. In such

circumstances, the prosecution has established that

accused inflected the injury on the neck of P.W.2 from

M.O.6-knife.

14. The evidence of P.W.2-injured, P.W.1-

complainant and P.W.3-wife of the injured, clearly

corroborates with each other. Further, the evidence of

P.W.15-Investigating Officer also corroborates the

evidence of these witnesses. In such circumstances, it is

settled principles of law by the Hon'ble Apex Court in

Lakshman Singh v. State of Bihar, reported in (2021)

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9 SCC 191, wherein, the Hon'ble apex court has held as

under-

9.2. The aforesaid principle of law has been reiterated again by this Court in Ramvilas [Ramvilas v. State of M.P., (2016) 16 SCC 316 : (2016) 4 SCC (Cri) 850] and it is held that "evidence of injured witnesses is entitled to a great weight and very cogent and convincing grounds are required to discard their evidence". It is further observed that "being injured witnesses, their presence at the time and place of occurrence cannot be doubted".

(Emphasis relied)

Hence, there is no reason forthcoming to falsely

implicate the accused by PW.2, in the case on hand, who

happened to be none other than son of his own brother. In

such circumstances, I am of the considered view that

learned Sessions Judge has rightly drawn inference that

the accused is the perpetrator of the crime and caused the

injury on the neck of P.W.2 and accordingly, the learned

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Sessions Judge has rightly convicted the accused for the

offence punishable under Section 307 of IPC.

15. However, the learned counsel for the

appellant/accused submits that incident is of the year

2011 and it had taken place in a heat of moment and

except for the present incident, there is no other incident

that has been taken place between the accused and P.W.2

or his family members and there is no bad antecedents

against the accused. Therefore, he submits that

sentencing the accused to jail, at this stage, may not

serve any purpose. By placing reliance on the judgment of

the Hon'ble Apex Court in the case of Nahib Singh Vs

State of Punjab reported in AIR 1986 SC 2192 so also

placing reliance on the judgment of Co-ordinate Bench of

this court in the case of Timmanna vs State of

Karnataka reported in 2020(1) AKR 513, learned

counsel for the appellant/accused submits that, in similar

circumstances, taking into consideration that the incident

took place 13 years back, lenient view was taken by the

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Hon'ble Apex Court so also this Court. Accordingly, he

prays for modification of the sentence imposed by the trial

court for the offence punishable under Section 307 of IPC.

In order to emphasize on the same, Section 307 of IPC

reads as under:

"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 if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned."

Hence, on overall appreciation of the evidence

available on record and also considering the fact that

incident has taken place 13 years ago and

considering the relationship of the accused and the

injured, it is not desirable to send the accused to jail

at this stage. Learned counsel for the

appellant/accused submits that appellant/accused

has already undergone incarceration for period of

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one month. Hence, in my considered view, imposing

reasonable fine amount to the accused by reducing

the sentence for the period he has already

undergone would meet the ends of justice.

Accordingly, I answer the above raised points in

negative and partly affirmative respective and

proceed to pass the following:

ORDER

i. The appeal is partly allowed.


      ii.       The judgment of conviction and order of
                sentence      dated      08.12.2015           passed      in
                S.C.No.57/2012          by      the     II        Additional

District and Sessions Judge, Haveri (sitting at Ranebennur) convicting the accused for the offence punishable under Section 307 of IPC is confirmed. However the sentence imposed by the trial Court stands modified.

iii. The appellant/accused is sentenced for a period of one month which he has already undergone along with fine of Rs.

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      1,50,000/-    (including     the    fine        amount
      already   deposited)        and    in     default    of

payment of fine, he shall further undergo rigorous imprisonment for a period of one year for the offence punishable under Section 307 of IPC.

iv. The accused shall deposit the fine amount before the trial Court within a period of Eight weeks from the date of receipt of a copy of this judgment, failing which, the learned Sessions Judge is directed to secure the presence of the appellant/accused and commit him to the prison to undergo default sentence.

v. The entire fine amount of Rs.1,50,000/- is ordered to be paid to P.W.2-Ganeshappa S/o Malakappa Haranageri as compensation under Section 357 of Cr.P.C., on proper identification.