Karnataka High Court

Kenchaiah vs The State Of Karnataka on 7 March, 2024

Author: Mohammad Nawaz

Bench: Mohammad Nawaz

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                                                   NC: 2024:KHC:9756
                                                CRL.A No. 90 of 2013




                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                     DATED THIS THE 7TH DAY OF MARCH, 2024

                                     BEFORE
                   THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
                        CRIMINAL APPEAL NO. 90 OF 2013
            BETWEEN:

            1.    KENCHAIAH
                  AGED ABOUT 31 YEARS,
                  S/O DYAVAIAH,
                  OCC: COOLIE WORK,
                  R/O TALIHALLA GADI COLONY,
                  VASTHARE HOBLI,
                  CHIKAMAGALUR TALUKA
                  AND DISTRICT-577101
                                                        ...APPELLANT

            (BY SRI. P.B.UMESH, FOR SRI. R B DESHPANDE, ADVOCATES)
            AND:

            1.    THE STATE OF KARNATAKA
                  BY MALLANDUR POLICE STATION-577130
Digitally
                                                     ...RESPONDENT
signed by
SUMITHRA R (BY SRI.VINAY MAHADEVAIAH, HCGP)
Location:
HIGH
COURT OF        THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO
KARNATAKA  SET   ASIDE THE CONVICTION AND SENTENCE DATED
           04/7.01.2013 PASSED BY THE PRL. S.J., CHIKMAGALUR IN
           S.C.NO.3/2012 - CONVICTING THE APPELLANT/ACCUSED FOR
           THE OFFENCE P/U/S 504,324 AND 307 OF IPC.

                 THIS APPEAL COMING ON FOR FURTHER HEARING, THIS
            DAY, THE COURT DELIVERED THE FOLLOWING:
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                                          NC: 2024:KHC:9756
                                       CRL.A No. 90 of 2013




                       JUDGMENT

This appeal is preferred by the appellant/accused

against the Judgment and Order dated 4/7.01.2013

passed by the Court of the Principal Sessions Judge at

Chikmagalur in Sessions Case No.3/2012, whereby the

appellant has been convicted and sentenced for the

offence punishable under Section 504, 324 and 307 of IPC.

2. Heard the learned counsel for the appellant, the

learned High Court Government Pleader for the State and

perused the evidence and material on record.

3. Brief facts of the prosecution case are that,

CW1-Renuka (PW4) is the wife of the victim (PW5). PW1

is the wife of the accused. Accused was suspecting that

PW5 was having an illicit relationship with his wife/PW1.

Hence, he had quarreled with him. On 17.08.2011 at

about 10.00 p.m., PW5-victim went to the house of the

accused to question him as to why he has quarreled with

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him. At that time, the accused with an intention to

commit his murder, assaulted him with a chopper on his

head, hand etc.

4. Complaint-Ex.P6 is lodged by PW4, wife of PW5.

Based on the said complaint, a case was registered against

the accused for the offence punishable under Section 324,

504 and 307 of IPC. Injured-PW5 took treatment at

Government Hospital, Chikmagalur and Wenlock Hospital,

Mangaluru. Accused was arrested and blood stained Shirt-

MO.3 and a blood stained sickle MO.4 were seized at his

instance under Ex.P8 and Ex.P10 respectively. PW9 on

completion of investigation filed the charge sheet.

5. Charges were framed against the accused for

the offence punishable under Section 504, 324 and 307 of

IPC. In order to establish its case, the prosecution in all

examined 9 witnesses and got marked 18 documents and

MOs.1 to 4. On behalf of the defence, accused was

examined as DW1.

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6. Learned Sessions Judge on appreciation of the

evidence and material on record convicted the accused for

the charged offences and imposed sentence as under:

(i) For the offence punishable under Section 324 of

IPC., accused is sentenced to undergo simple

imprisonment for a period of 3 years and to pay fine of

Rs.5,000/-, in default of payment of fine, to undergo

simple imprisonment for six months.

(ii) For the offence punishable under Section 504 of

IPC., he is sentenced to undergo simple imprisonment for

a period of 2 years and to pay fine of Rs.3,000/-, in

default of payment of fine, to undergo simple

imprisonment for three months.

(iii) For the offence punishable under Section 307 of

IPC., he is sentenced to undergo simple imprisonment for

a period of 5 years and to pay fine of Rs.20,000/-, in

default of payment of fine, to undergo simple

imprisonment for one year.

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7. PWs.1 and 2 are the wife and brother-in-law of

the accused. PW3 is a neighbour of the complainant. PW4

is the wife of the injured and she is the complainant in this

case. PW5 is the injured. PW6 is the panch witness to

Ex.P7-spot mahazar, Ex.P8 - seizure of MO.3 (shirt),

Ex.P10-seizure of chopper (MO4). PW7 is the medical

officer at Government Hospital, Chikmagalur, who treated

PW5/injured. The wound certificate issued by him is

marked as Ex.P12 and the wound certificate issued by the

Wenlock Hospital is marked as Ex.P13. PW8 is the head

constable who registered the case. PW9 is the PSI who has

conducted the investigation and filed charge sheet.

8. The accused who is examined as DW.1 has

deposed in his evidence that at the time of incident he was

sleeping in the house. PWs.1 and 2 made a hue and cry

saying that somebody has entered the house by removing

the tiles. On hearing the hue and cry the said person who

entered the house open the door and ran way. At that

time about 10 to 12 persons from the village also came

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there. He has stated that as he was suffering from fever

he did not go out and therefore, he was not aware as to

what happened next. He has further stated that on the

next day morning he went to the Police Station and the

police made him to sit in the Police Station.

9. In the cross-examination he has denied having

any illicit relationship between his wife and PW5 and

denied that in view of the said illicit relationship there was

a quarrel and he assaulted PW5 with a sickle etc.

10. PW1, the wife of the accused and PW2, the

brother of PW1 has denied the prosecution case. They

have been treated hostile by the prosecution. Both of

them have stated that after having dinner while they were

sleeping, someone entered their house by removing the

tiles and therefore, they shouted as 'Kalla kalla'. On

hearing the hue and cry the neighbours gathered and the

said thief who had entered the house started running and

others chased him and thereafter, they did not know what

happened.

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11. From the above evidence, it can be gathered

that the specific defence taken by the accused is that, on

the date of incident some thief entered the house of the

accused by removing the tiles and hearing their hue and

cry, he opened the door and ran out of the house, at that

time the villagers chased him.

12. It is contended by the learned counsel for the

appellant that it was PW5 namely the victim in this case

who tried to enter the house by removing the tiles and he

was chased and assaulted by the villagers and in the said

incident he has sustained injuries. He has contended that

the appellant has been falsely implicated in this case.

Drawing the attention to the spot mahazar-Ex.P7, he

contended that two tiles in the roof of the house were

missing.

13. The prosecution has mainly relied on the

evidence of PW4 and PW5 and the medical evidence of

PW7, the doctor who treated the injured-PW5 at

M.G.Hospital, Chikmagalur.

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14. The complainant namely the wife of

injured-PW5 is not an eye witness to the incident. In her

complaint-Ex.P6, she has stated that on 17.08.2011 at

about 10:30 p.m., her husband who had gone to

Chikmagalur returned to the house. At that time, he had

sustained bleeding injuries to his head, right hand and

back. When she enquired, he informed that the accused

quarrelled with him saying that he is having an illicit

relationship with his wife and therefore, he went to the

house of accused at about 10:00 p.m., to question him

and at that time, the accused with an intention to commit

his murder assaulted him with a sickle on his head, right

hand and shoulder etc. She has further stated that

immediately she informed the matter to her brother-in-law

and neighbour, who shifted her husband to the

Government Hospital, Chikmagalur, for treatment and

from there her husband was shifted to Wenlock Hospital,

Mangalore.

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15. Complainant-PW4 has reiterated the complaint

averments. Complaint is marked as Ex.P6. Spot mahazar

is Ex.P7. PW4 has denied the suggestion that her husband

tried to steal the articles in the house of the accused and

at that time, the villagers caught and assaulted him. She

has denied that a false case was registered against the

accused.

16. PW.5-injured has deposed that he had gone to

Chikmagalur at about 10:00 p.m. to purchase groceries.

He returned at about 4:00 p.m. In the bus, the accused

met him and questioned about the illicit relationship with

his wife and abused him in filthy language, but he did not

say anything. Thereafter, at about 10:00 p.m., he went to

the house of the accused to ask as to why he has scolded

him saying that he is having an illicit relationship with his

wife. At that time, the accused abused him and went

inside the house and brought a chopper and assaulted him

on his right hand, abdomen, back and shoulders. He has

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stated that the accused assaulted him with an intention to

commit his murder.

17. In the cross-examination, he has denied that he

went to the house of the accused to commit theft and

when PW5 made hue and cry, people caught and assaulted

him. There is nothing elicited in his cross-examination to

disbelieve his evidence that he was assaulted by the

accused with chopper.

18. PW7 is the Medical Officer at M.G. Hospital,

Chikmagalur, who examined the injured-PW5, brought to

the hospital by PW3 on 18.08.2011 at about 1:30 a.m.,

with a history of assault. He has noticed the following

injuries:

1) Multiple lacerated wound over both temporal and occipital region total 6 in Nos. measuring 6 x 3 c.m to 3 x 2 c.m.

2) Right open ulna fracture with open radial neck fracture with extensor tender injury with ulnar nerve and ulnar artery injury right forearm.

3) Lacerated would over right palm extending upto right index finger measuring 10 x 2 c.m.

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4) Incised wound over left shoulder 2 in number measuring 2 x 1 c.m.

5) Incised wound over left elbow measuring 3 x 2 c.m.

6) Lacerated wound over scapula measuring 6 x 3 c.m.

19. PW7 has stated that the injuries were grievous

in nature and therefore, he referred PW5 for higher

treatment. The wound certificate issued by him is marked

as Ex.P12. The wound certificate issued by the Wenlock

Hospital is marked as Ex.P13 through the said witness. He

has stated that PW5 was in the Wenlock Hospital from

18.08.2011 to 01.10.2011.

20. As per Ex.P13 issued by the Government

Wenlock Hospital, Mangalore, the injured-PW5 was

admitted in the said hospital on 18.08.2011 at about

7:15 a.m., with a history of alleged assault by Kenchaiah

and his brother-in-law with a sword at 8:30 p.m., on

17.08.2011 near his residence.

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21. PW6 is the panch witness to the spot

mahazar-Ex.P7, EX.P8- seizure of shirt (MO.3) of PW5

(MO.3) and chopper (MO.4) under Ex.P10. He has stated

that MO.4-Kathi was produced by the accused from a

culvert situated by the side of coffee plantation.

22. From the above evidence on record, the

prosecution has been able to establish that on 17.08.2011

during night hours, the accused assaulted PW5 with

MO.4-sickle and caused grievous injuries to him.

23. Though, PW5 has stated that he was assaulted

by the accused with an intention to kill him, it is not his

case that even while he was returning to his house,

accused tried to chase and assault him. He has stated

that after the assault, he came back to his house and

informed the matter to his wife-PW4. It is pertinent to see

that the incident took place in the house of accused and it

was PW5 himself who has gone to the house of the

accused. In the cross-examination, PW5 has stated that

when he called the accused, he came out of the house and

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then started abusing him and pushed him. When he fell

down, he took a kathi and assaulted him before he could

get up. Hence, when the accused pushed PW5, he fell

down and if there was an intention to kill him, the accused

would have given fatal blows.

24. As per the wound certificate, out of the six

injuries, injury No.2 is grievous in nature. It appears that,

since PW5 sustained fractured injuries to his right forearm,

the said injury is stated to be grievous in nature. The said

injury is not on the vital part of the body. Hence, the

finding recorded by the trial Court for convicting the

accused for the offence punishable under Section 307 of

IPC is not sustainable.

25. In view of the clinching evidence of the

injured-PW5, the defence taken by the accused that PW5

attempted to commit theft by entering his house by

removing the tiles and he was beaten by the villagers etc.,

cannot be accepted. Defence has not examined any

villagers to substantiate the said contention.

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26. The trial Court has convicted the accused for

the offence punishable under Section 504, 324 and 307 of

IPC. When the accused was convicted for an offence

punishable under Section 307 IPC, once again convicting

him for the offence punishable under Section 324 of IPC

does not arise. It is no doubt true that PW5 has sustained

simple as well as grievous injuries. But the said injuries

are caused to a single victim. Having found the accused

guilty for the offence punishable under Section 307 IPC,

the learned Sessions Judge was not justified in once again

convicting him for the offence punishable under Section

324 of IPC.

27. This Court has come to the conclusion that the

ingredients of Section 307 of IPC are not made out. The

question which remains is as to what is the offence

committed by the accused.

28. The learned High Court Government Pleader

has contended that since PW5 has sustained grievous

injuries which is evident from Exs.P12 and 13 and also the

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evidence of doctor-PW7, the accused is liable to be

convicted under Section 326 of IPC.

29. Even though the accused has denied that his

wife i.e., PW1 was having an illicit relationship with PW5, it

is the specific case of prosecution that the accused had

quarreled with PW5, earlier to the incident saying that

there is an illicit relationship between his wife and PW5.

Even according to Ex.P6 as well as the evidence of PWs.4

and 5, the accused had quarreled with PW5 saying that he

has kept his wife. A perusal of the evidence of PW5 goes

to show that at about 4.00 p.m., on the very same day,

the accused met him in the bus and took objection for

having an illicit relationship with his wife and abused him

in filthy language. It is not the case of prosecution that at

that time the accused has assaulted PW5. Admittedly, the

incident has taken place in the house of the accused at

about 10.00 p.m. It was PW5 himself who went to the

house of the accused during night hours and at that time,

the incident has taken place. The accused is alleged to

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have assaulted PW5 with a sickle and caused simple as

well as grievous injuries to him. The incident would not

have taken place if PW5 had not gone to the house of the

accused that too during night hours. A careful perusal of

the entire material on record reveal that the accused was

provoked by the conduct of PW5 and the incident took

place in a grave and sudden provocation. Hence, the

offence committed by the accused would fall under Section

335 of IPC.

30. The learned counsel for the appellant submits

that the accused is from a poor family and he is eeking out

his livelihood by doing coolie work. He is the only earning

member of the family and he has to look after his wife and

children. He has therefore, sought to take a lenient view

while imposing sentence.

31. The accused was in custody from 18.08.2011 to

03.10.2011 as under trial prisoner and from the date of

the impugned judgment i.e., from 04.01.2013 till the

sentence imposed against him was suspended by this

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Court on 24.01.2013. The incident took place on

17.08.2011. More than 12 years have lapsed. It is

submitted that no untoward incident has taken place

between the parties subsequent to the incident in

question. Hence, the following:

ORDER

i. Appeal is allowed in part.

ii. The Judgment and Order dated 4/7.01.2013

passed by the Principal Sessions Judge, Chikmagalur, in

SC No.3/2012, convicting the accused/appellant for the

offence punishable under Section 307 and 324 IPC is

hereby set aside.

iii. The conviction under Section 504 IPC is

confirmed. The sentence of imprisonment imposed for

the said offence is set aside. However, he shall pay a

fine of Rs.40,000/- (Rupees forty thousand only), in

default, shall undergo simple imprisonment for a period of

three months.

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iv. He is convicted for the offence punishable under

Section 335 of IPC and sentenced to imprisonment for the

period already undergone by him. He shall pay a fine of

Rs.2,000/- and in default of payment of fine, shall undergo

simple imprisonment for a period of one month.