Karnataka High Court
Sri K R Swamy @ Dhananjaya vs State Of Karnataka By on 13 February, 2024
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.A No. 184 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 184 OF 2013
BETWEEN:
1. SRI K R SWAMY @ DHANANJAYA
S/O RANGEGOWDA
NOW AGED ABOUT 24 YEARS
RESIDENT OF BALLEKERE VILLAGE
KOPPA HOBHA, NAGAMANGALA
MANDYA DISTRICT- 571 401.
2. SRI PRAKASHA
S/O LATE RANGEGOWDA
NOW AGED ABOUT 23 YEARS
M.COM STUDENT (CORRESPONDENCE)
AT MANASAGANGOTHRI
OCCUPATION: ACCOUNTANT IN
PRIVATE CONCERN
PERMANENT RESIDENT OF
BALLEKERE VILLAGE, KOPPA HOBHA
NAGAMANGALA
Digitally signed by MANDYA DISTRICT.
LAKSHMINARAYANA
MURTHY RAJASHRI NOW RESIDING AT No.467,
Location: HIGH
COURT OF 5TH MAIN, 5TH CROSS, KANTEERAVA NAGARA
KARNATAKA 2ND STAGE, NANDINI LAYOUT
BANGALORE - 560 096.
3. BALLEKERE KULLA @ KULLEGOWDA
S/O MAYANNAGOWDA
NOW AGED ABOUT 51 YEARS
RESIDENT OF BALLEKERE VILLAGE
KOPPA HOBHA, NAGAMANGALA
MANDYA DISTRICT - 571 401.
...APPELLANTS
(BY SRI N SRINIVAS, ADVOCATE)
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CRL.A No. 184 of 2013
AND:
STATE OF KARNATAKA BY
NAGAMANGALA RURAL
POLICE STATION
MANDYA DISTRICT - 571 401.
...RESPONDENT
(BY SRI B LAKSHMAN, HCGP)
THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO SET
ASIDE THE ORDER OF CONVICTION AND SENTENCE DATED
22.01.2013 PASSED BY THE ADDITIONAL DISTRICT & S.J.,
MANDYA IN S.C.No.137/2011-CONVICTING THE
APPELLANTS/ACCUSED FOR THE OFFENCE P/U/S 324 R/W 34 OF
IPC.
THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal is filed by accused Nos.1, 2 and 4, praying to
set-aside the judgment of conviction and order on sentence
dated 22.01.2013 passed in S.C.No.137/2011 by the
Additional District and Sessions Judge, Mandya. The
appellants have been convicted for the offence under Section
324 r/w Section 34 of the Indian Penal Code, 1860 (for short
hereinafter referred to as 'IPC') and sentenced to undergo
rigorous imprisonment for a period of six months and to pay
fine of Rs.1,000/- each and in default, to undergo rigorous
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imprisonment for a period of one month. The Trial Court has
ordered for payment of compensation of Rs.5,000/- to PW2
and Rs.1,000/- to PW3 and the same has to be paid by
accused Nos.1, 2 and 4.
2. The factual matrix of the prosecution case are as under;
The complainant - PW1 is the daughter of first wife of
late Sri.Rangegowda. There was a dispute with regard to the
agricultural land between the children of first wife and children
of second wife of late Sri.Rangegowda. Accused Nos.1 to 3 are
the children of late Sri.Rangegowda by his second wife. The
dispute with respect to agricultural land was existed between
the family members of first wife and second wife's children
and it is pending in a suit before the Civil Court. That, on
30.05.2010, the complainant - PW1 along with the family
members went to the land and there was a quarrel between
them and the accused persons. At that time, she went to
inform the same to her husband and was found near
Maramma temple. Accused No.1 armed with club and
accused No.2 armed with machete assaulted PW2 on the back
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side of the head and caused bleeding injuries. At that time,
PW3 - brother of PW2 intervened to pacify the quarrel and
accused No.4, assaulted him with the wooden repiece and also
kicked on his chest. Accused No.3 with a stone assaulted
PW2 on his body. At that time, PWs.4, 5 and others pacified
the quarrel. PW1 filed a complaint and a case came to be
registered against accused Nos.1 to 4 for the offences under
Sections 323, 324 and 307 r/w Section 34 of IPC. The police,
after investigation, filed the charge sheet for the said
offences. After committal, the Sessions Court framed the
charge against accused Nos.1 to 4 for the aforesaid offences.
3. In order to prove the charge, the prosecution has
examined PWs.1 to 10 and got marked Exs.P1 to P8 and
MOs.1 to 7. The statement of the accused persons came to
be recorded under Section 313 of Cr.P.C. The Trial Court
after hearing the arguments, has formulated the points for
consideration and after appreciating the evidence on record,
has passed the judgment of conviction, convicting the
appellants - accused Nos.1, 2 and 4, as stated above and
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acquitted accused No.3. The said judgment of conviction and
order on sentence has been challenged in this appeal.
4. Heard the arguments of learned counsel for the
appellants and learned High Court Government Pleader for the
respondent - State.
5. Learned counsel for the appellants would contend that
on perusal of the cross examination of PW4, it is clear that he
is not an eye witness, as, by the time he came there, the
quarrel was over. Another eye witness - PW5 has not
supported the case of the prosecution. Even Panchas to Ex.P4
- seizure of weapons, namely PW6 and Panchas to Ex.P2 -
seizure of clothes, namely PW7 have not supported the case
of the prosecution. Therefore, the said mahazars have not
been proved. He further submits that the case put forth by
the prosecution is not consistent. The alleged spot is near
Maramma temple which is a public place and no public has
been examined. The alleged motive is the land dispute which
has been admitted by PW1 in her cross examination. PW1
has also admitted that PWs.1, 2 and 4 used to come to the
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village during the night time for work and used to go back in
the morning. As there is a civil dispute, the only evidence of
PWs.1 to 3 who were related to each other cannot be
considered without corroboration by the independent
witnesses. He further argued that the prosecution has failed
to prove that the appellants have committed the offence
under Section 324 r/w Section 34 of IPC, beyond reasonable
doubt. He further argued that if the Court comes to the
conclusion that the appellants have committed the offence
under Section 324 r/w Section 34 of IPC, they are entitled to
the benefit under the provision of Probation of Offenders Act,
1958 (for short hereinafter referred to as 'P.O. Act'), as they
are closely related to PWs.1 to 3. He contends that the Trial
Court has not considered the application of the provision of
P.O.Act. He places reliance on the decision of the Rajasthan
High Court in the case of Sujya and Others Vs. State of
Rajasthan reported in 2003 Crl.L.J.1612 and the decision
of this Court in the case of Chanabasappa and Others Vs.
State of Karnataka reported in 2016 Crl.L.J.288.
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6. Learned High Court Government Pleader for the
respondent - State has argued that the Trial Court on proper
appreciation of the evidence on record, has rightly convicted
the appellants. He has supported the reasons assigned by the
Trial Court. He has further argued that the evidence of
PWs.1 to 3 coupled with the medical evidence is sufficient to
convict the appellants for the offence under Section 324 of
IPC. On these grounds, he has sought for dismissal of the
appeal.
7. On the grounds made out and considering the
arguments advanced, the following points would arise for my
consideration;
(i) Whether the Trial Court erred in convicting the
appellants - accused Nos.1, 2 and 4 for the
offence under Section 324 of IPC?
(ii) Whether the appellants - accused Nos.1, 2 and
4 are entitled for the benefit of P.O Act?
8. My answer to point No.(i) is in the negative, for the
following reasons;
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Accused Nos.1 to 3 are step brothers of PW1. PW1 is
the daughter of first wife and accused Nos.1 to 3 are sons of
second wife of late Sri.Rangegowda. Accused No.4 is the
relative of accused No.1. The evidence of PW1 would indicate
that there was a civil dispute with regard to cultivation of the
land. PW1 has admitted in her cross examination that
Smt.Gundamma is the step mother and has filed a civil suit
against her and her husband. Even PW1 has admitted that
with regard to the land measuring 2½ acres, there was a
dispute between them. The quarrel has taken place with
regard to cultivation of the land between PW1 and the
accused persons. PW1, went to intimate regarding the said
quarrel to her husband and when she was in front of
Maramma temple, her husband came there. At that time,
accused No.2 assaulted with machete on back side of head of
her husband; accused No.1 assaulted with club on the head of
her husband; accused No.3 assaulted with wooden repiece on
the nose of PW3. The said evidence of PW1 is corroborated
by the evidence of PWs.2 and 3. PW2 is husband of PW1,
PW3 is brother of PW1. Ex.P6 is the wound certificate of PW2
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and Ex.P7 is the wound certificate of PW3. Both the wound
certificates are issued by PW8 - doctor. The doctor who has
issued the wound certificates has opined that the injuries
sustained by PWs.2 and 3 are simple injuries. In both the
wound certificates - Exs.P6 and P7, the history is mentioned
as "assault with blunt weapon". Even though the independent
eye witnesses namely PWs.4 and 5 are not supported the
version of PWs.1 to 3, but there is consistency in the evidence
of PWs.1 to 3, about assault by the accused persons on PWs.2
and 3. Merely because there is a civil dispute and quarrel
with regard to the agricultural land, the version of PWs.1 to 3
cannot be disbelieved. Therefore, the evidence of the
prosecution namely PWs.1 to 3 coupled with the evidence of
PW8 would establish the act of the appellants - accused
Nos.1, 2 and 4 assaulting PWs.2 and 3 and causing simple
injuries. Therefore, the Trial Court has rightly convicted the
appellants - accused Nos.1, 2 and 4 for the offence under
Section 324 r/w Section 34 of IPC.
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9. On perusal of the order on sentence, it is noted that the
Trial Court has not considered as to whether the provisions
under the P.O.Act are to be applied to the case on hand or
not?
10. Learned counsel for the appellants - accused Nos.1, 2
and 4 submitted that PW1 is the step sister of accused
Nos.1 to 3 and accused No.4 is the relative of accused No.1.
PW2 is the husband of PW1 and PW3 is the brother of PW2.
There is a close relationship between PWs.1 to 3 and accused
Nos.1 to 4. Learned counsel for the appellants - accused
Nos.1, 2 and 4 submitted that the appellants are on bail and
there is no incident prior to this and no offence has been
committed by any of the appellants. On these grounds,
counsel for the appellants has prayed for release of the
appellants on probation of good conduct.
11. Considering the relationship of PWs.1 to 3 with the
appellants - accused Nos.1, 2 and 4 and having regard to the
nature of the offence, character of the offenders and the year
of incident, it is expedient to release the appellants on
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probation of good conduct instead of sentencing them at once
with conditions. In view of the above, the following;
ORDER
The appeal is allowed in part. The judgment of
conviction dated 22.01.2013 passed in S.C.No.137/2011 by
the Additional District and Sessions Judge, Mandya, convicting
the appellants for the offence under Section 324 r/w Section
34 of IPC is affirmed. Instead of sentencing the appellants at
once for having committed the offence under Section 324 r/w
Section 34 of IPC, it is directed that they be released on
probation of good conduct under Section 4 of the P.O.Act, on
each of them entering into bonds in a sum of Rs.50,000/-
each, with one surety for the likesum and receive the
sentence as and when called upon during the next one year
and in the meantime, to keep peace and be of good
behaviour. It is also ordered that each of the appellants -
accused Nos.1, 2 and 4 shall pay a sum of Rs.2,000/- and out
of that, a sum of Rs.5,000/- to be paid to PW2 and a sum of
Rs.1,000/- to be paid to PW3, as compensation under Section
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5 of the P.O.Act. Two months' time is given to the appellants
for executing the personal bonds and surety bonds and for
depositing the amount of compensation.
Sd/-
JUDGE
GH
