Karnataka High Court
H P Anilkumar vs The State Of Karnataka on 5 February, 2025
Author: V Srishananda
Bench: V Srishananda
-1-
NC: 2025:KHC:5353
CRL.A No. 382 of 2012
C/W CRL.A No. 313 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL APPEAL No.382 OF 2012 (C)
C/W CRIMINAL APPEAL No.313 OF 2012
IN CRL.A No.382/2012
BETWEEN:
1. H P ANILKUMAR
S/O PAPANNA,
AGED 21 YEARS,
STUDENT, 6TH SEMESTER,
MECHANICAL ENGINEERING,
A.I.T. COLLEGE, CHIKMAGALUR
R/O NO.17/G, I MAIN, II STAGE,
GANGOTRI LAY-OUT,
MYSORE CITY
2. VINAY GOURAV
S/O S.K.RAVINDRANATH,
AGED 21 YEAERS,
Digitally STUDENT, 6TH SEMESTER,
signed by MECHANICAL ENGINEERING,
MALATESH
KC A.I.T.COLLEGE, CHIKMAGALUR,
Location:
R/O CHIKKANNA STREET,
HIGH CHIKMAGALUR
COURT OF ...APPELLANTS
KARNATAKA (BY SRI. C H HANUMANTHARAYA A/W
SMT.ABHINAYA.K, ADVOCATES)
AND:
1. THE STATE OF KARNATAKA
BY RURAL P.S.,
CHIKMAGALUR,
CHIKMAGALUR TOWN,
-2-
NC: 2025:KHC:5353
CRL.A No. 382 of 2012
C/W CRL.A No. 313 of 2012
CHIKMAGALUR DISTRCT.
...RESPONDENT
(BY SRI CHANNAPPA ERAPPA, HCGP)
THIS CRL.A IS FILED UNDER SECTION 374(2) CR.P.C
PRAYING TO SET ASIDE THE CONVICTION AND SENTENCE
DT.07.03.2012 PASSED BY THE PRL. S.J. CHIKMAGALUR IN
S.C.NO.107/2008-CONVICTING THE APPELLANTS/ACCUSED
FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 143, 148,
323 AND 304 PART II R/W SECTION 149 OF IPC.
IN CRL.A NO. 313/2012
BETWEEN:
1. H N ABHISHEK
S/O R NAGENDRAPPA
WORKING AS RELATIONSHIP MANAGER
IN WAY2 WEALTH, FINANCIAL COMPANY
AT BANGALORE,
PERMANENT R/AT NEAR N.D.R.K.COLLEGE,
UDAAYAGIRI, HASSAN.
2. VISHAL ARUN HALBHAVI
S/O ARUN HALBHAVI
OCC :ASSISTANT MANAGER
GENPACK INDIA LIMITED,
ELECTRONIC CIIY, BANGALORE
PERMANENT R/AT CHENNAPURA VILLAGE
BHADRAVATHI TALUK, DISTRICT SHIMOGA.
...APPELLANTS
(BY SRI. R B DESHPANDE, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY RURAL POLICE STATION,
CHICKMAGALUR.
...RESPONDENT
(BY SRI CHANNAPPA ERAPPA, HCGP)
THIS CRL.A IS FILED UNDER SECTION 374(2) CR.P.C
-3-
NC: 2025:KHC:5353
CRL.A No. 382 of 2012
C/W CRL.A No. 313 of 2012
PRAYING TO SET ASIDE THE CONVICTION AND SENTENCE
DT.07/08.03.2012 PASSED BY THE PRL. S.J.
CHIKMAGALUR IN S.C.No.107/2008-CONVICTING THE
APPELLANTS / ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTIONS 143, 148, 323 AND 304 PART II R/W
SECTION 149 OF IPC.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL JUDGMENT
Heard Sri R.B.Deshpande, learned counsel, and Sri
C.H.Hanumantharaya along with Smt.Abhinaya, learned
counsel for the appellants and Sri Channappa Erappa, learned
High Court Government Pleader.
2. Accused Nos.1 and 3 have filed Crl.A.No.382/2012 and
accused Nos.2 and 4 are the appellants in Crl.A. No.313/2012.
All appellants have been convicted in S.C.No.107/2008 dated
07.03.2012 on the file of the Prl. Sessions Judge,
Chikmagaluru, for the offence punishable under Section 304
Part II of the Indian Penal Code being the major offence and
sentenced as under:
"Accused Nos.1 to 4, viz. (1) H.P.Anilkumar, S/o
Papanna, (2) H.N.Abhishek, S/o R. Nagendrappa, (3)
NC: 2025:KHC:5353
Vinay Gourav S/o S.K.Ravindranath and (4) Vishal Arun
Halbhavi, S/o Arun Halbhavi, are sentenced to undergo
Simple Imprisonment for 6 months and to pay fine of
Rs.2,000/- each in default to pay fine, to undergo further
Imprisonment for a period of one month, for the offence
punishable under Section 143 of I.P.C.
Accused No.1 to 4, viz., (1) H.P.Anilkumar S/o
Papanna (2) H.N.Abhishek S/O R.Nagendrappa (3) Vinay
Gourav S/o S.K.Ravindranath and (4) Vishal Arun
Halbhavi, S/o Arun Halbhavi are also sentenced to
undergo Simple Imprisonment for one year and to pay
fine of Rs 3.000/- each in default in to pay fine, to
undergo further imprisonment for a period of one month,
for the offence punishable under Section 148 of IPC.
Accused Nas I to 4 VIZ., (1) H.P.Anilkumar S/o
Papanna 2) H.N Abhishek, S/o R.Nagendrappa (3) Vinay
Gourav S/o S.K.Ravindranath and (4) Vishal Arun
Halbhavi, S/o Arun Halbhavi, are further sentenced to
undergo simple Imprisonment for one year and to pay
fine of Rs.1.000/- each in default to pay fine to undergo
further imprisonment for a period of fifteen days, for the
offence punishable under Section 323 read with Section
149 of IPC.
Accused Nos.1 to 4, viz, (1) H.P.Anilkumar, S/o
Papanna, (2) H.N.Abhishek S/o R. Nagendrappa (3) Vinay
Gourav, S/o S.K.Ravindranath and (4) Vishal Arun
Halbhavi, S/o Arun Halbhavi, are also again sentenced to
undergo Simple Imprisonment for three years and to pay
fine of Rs.50,000/-each in default to pay fine, to undergo
further Imprisonment for a period of six months, for the
offence punishable under Section 304 Part II read with
Section 149 of I.P.C.
All the substantive sentences of imprisonment shall
run concurrently.
Further, by exercising the powers under Section
357 of Cr.P.C., out of the fine amount realised,
Rs.2,00,000/- is ordered to be paid to C.W.5, Smt. Polibor
NC: 2025:KHC:5353
Pathrorian Gogoyi wife of P.W.4 Akash Jyothi Gogoyi, the
sister of the deceased Rithin Borpatragohain, as
compensation.
Since none of the accused was custody either
during investigation or during trial, the question of giving
set off as required under Section 428 of Cr.P.C does not
arise at all.
Furnish copy of this judgment to each of the
accused free of cost forthwith."
3. Being aggrieved by the same, separate appeals are
preferred by accused Nos.1 and 3, and accused Nos.2 and 4 in
these appeals.
4. Facts of the case in brief which are utmost necessary for
disposal of the present appeals are as under:
An incident occurred on 22.04.2006 after the annual day
function known as 'Chunchana' in Adichunchanagiri Institute of
Technology, Chikkamagaluru, at about 9.00 pm wherein a
student of the said college by name Rithin Borpatragohain,
Sachinkumar Lochad, Aniruddh Loha, Abhijeet Sharma,
assembled in the front gate of the college wherein there is a
canteen called 'COOL JOINT'. When Rithin was smoking a
cigarette, present appellants and others who are students of
NC: 2025:KHC:5353
the same college formed an unlawful assembly, came there and
picked up the quarrel.
5. In the quarrel, accused No.1-H.P.Anil Kumar demanded a
cigarette from Rithin. Said demand was refused and there was
oral altercation to begin with. Immediately, accused No.1
pulled the ear phone of Rithin and slapped him. Accused No.2-
H.N.Abhishek assaulted Rithin with hands on his back and
accused No.3-Vinay Gourav kicked Rithin. Accused No.5-
Dushyanth also punched Rithin on his face and caused twist
injuries and kicked him. All the accused persons pushed Rithin
and dragged him to security and again pushed him to culvert.
Thereafter, they stamped him whereby, Rithin sustained severe
injuries.
6. It is further case of the prosecution that C.W.10- Sachin
Kumar Lochad, C.W.4-Sukumar Kalith, C.W.8-Mohammed
Minajur Islam and C.W.9-Akhil G. Rao, took the injured to
house No.137 situated in Housing Board and got him a T-shirt
and they all went to house No.28 where Rithin used to stay.
Thereafter, Rithin called accused No.1-Anil Kumar over mobile
telephone and asked him what was the reason for assaulting
NC: 2025:KHC:5353
him. He also enquired as to why the person wearing blue T-
shirt assaulted him.
7. Anil Kumar replied saying that they are from Karnataka
State and powerful in the locality and, Rithin being an outsider
should understand the power of the localites and again abused
Rithin in filthy language and told him that he has come from far
off place and he cannot do anything to them. Anil Kumar said
to have given life threat to Rithin.
8. After the said conversation, at about 10.45 pm, accused
Nos.1, 2, 4 and 5 again came near the house of Rithin in a
Maruthi Zen Car and motorcycles with localites and after
getting down from the car with an intention to kill Rithin they
were equipped with rod, katthi and clubs. Accused No.5 said to
have told Rithin that he is the person who was wearing the blue
T-shirt and punched Rithin on his face. Thereafter, Rithin was
assaulted with cricket wickets and accused Nos.1 and 5
assaulted on the head and back of Rithin. One more blow was
given by accused No.1 with a wicket on his back and accused
No.4 tried to strangulate Abhijeet Sharma who wanted to
rescue Rithin. Heeral Patel-C.W.13 tried to pacify the incident
NC: 2025:KHC:5353
and at that juncture, accused No.2 abused him in filthy
language and assaulted him with rod on the right shoulder and
again assaulted with rods and wickets and they left the spot.
9. Prosecution case further reveals that Pranjitdas-C.W.14
took Rithin on his motorbike to Holy Cross Hospital in the
intervening night of 22nd and 23rd April 2006 at about 12.45 am
and got him treated. They thought that since they had come
from North India, they were assaulted and, if they are fixed in a
criminal case, they would be required to go to Court and face
many difficulties. Therefore, they did not reveal the true facts
before the Doctor.
10. It is further case of the prosecution that Rithin was
suffering with injuries and despite best treatment, on
25.04.2006, at about 6.00 pm, Rithin complained severe body
pain and pain on the back side of the head.
11. When other friends had been to their friends for dinner,
at about 9.45 pm, Rithin did not speak to them and door was
latched from inside. When the other friends of Rithin peeped
through window, they saw that Rithin had fallen unconscious on
the floor. Immediately they broke open the door and took
NC: 2025:KHC:5353
Rithin to Holy Cross Hospital at 10.30 pm. The doctors who
examined Rithin in the hospital declared that he has been
brought dead.
12. It is further case of the prosecution that noticing the
death of Rithin, fact was reported to Akash Jyothi Gogoyi-C.W.1
who is brother-in-law of Rithin who was staying in Bengaluru.
Said Akash Jyothi Gogoyi, thereafter rushed to Chikkamagalur
and after enquiring with friends of Rithin, he came to know that
because of the assault made by accused persons, Rithin lost his
life and therefore, he approached the police and lodged the
complaint.
13. After registering the case, police investigated the matter
and filed the charge sheet inter alia apprehending the
appellants and others. Learned Trial Judge on receipt of the
charge sheet, took cognizance of the case and committed the
matter to the Sessions Court.
14. Learned Sessions Judge, securing the presence of the
accused persons and framed the Charge for the offences
- 10 -
NC: 2025:KHC:5353
punishable under Sections 323, 143, 148, 302 r/w 149 of the
Indian Penal Code.
15. Accused persons pleaded not guilty and therefore, trial
was held.
16. During pendency of the trial, accused No.5 died and
therefore, case was proceeded against accused Nos.1 to 4.
17. In order to bring home the guilt of the accused persons,
prosecution in all examined 18 witnesses who are, the
complainant, friends of Rithin, doctor who issued wound
certificates, doctor who conducted the post mortem, doctor
who treated the other injured persons, mahazar witnesses and
the Investigation Officer. As many as 22 documents were
placed on record on behalf of the prosecution which were
exhibited and marked as Exs.P.1 to P.22.
18. The contradictions elicited in the cross-examination of
P.W.9 is marked as Ex.D.1 on behalf of the defence.
19. On conclusion of recording of evidence, learned Sessions
Judge recorded the accused statement as is contemplated
- 11 -
NC: 2025:KHC:5353
under Section 313 of the Code of Criminal Procedure wherein
accused persons denied all the incriminatory circumstances and
did not chose to place their version on record nor lead any
defence evidence.
20. Subsequent thereto, learned Sessions Judge heard the
arguments of the parties in detail and on cumulative
consideration of material placed on record, convicted the
accused persons and sentenced them as referred to supra.
21. Being aggrieved by the same, two sets of appeals are
filed by accused Nos.1 and 3, and accused Nos.2 and 4, as
referred to supra.
22. Sri C.H.Hanumantharaya and Sri R.B.Deshpande, learned
counsel representing the appellants in each of these appeals,
vehemently contended that the very fact that the learned
Sessions Judge has appreciated the material evidence on
record and convicted the appellants for the offence punishable
under Section 304 Part II as against the charge for the offence
under Section 302 of the Indian Penal Code itself shows that
the incident is not a premeditated incident.
- 12 -
NC: 2025:KHC:5353
23. According to them, incident that occurred near the
canteen viz., 'COOL JOINT' and the injuries sustained by Rithin
was not so grave as he could get back to his home.
24. They further contend that second incident said to have
occurred at 10.45 pm near the house of Rithin i.e., house
No.22. The appellants were not at all present and it is the
localites who had actually assaulted Rithin resulting in injuries
and same is reflected while narrating the history before the
doctor and explanation offered by the prosecution that under
fear that they may have to face criminal prosecution, wrong
history has been narrated before the doctor, when Rithin was
taken to Holy Cross Hospital for treatment of injuries is an
afterthought. Therefore, finding of the guilt recorded by the
learned Sessions Judge in the impugned judgment cannot be
countenanced in law and sought for allowing the appeals.
25. They also pointed out that there is no proper nexus that
has been established by the prosecution as to the death of
Rithin and the incident that is alleged to have taken place near
'COOL JOINT' canteen or near the house of Rithin. Therefore,
- 13 -
NC: 2025:KHC:5353
prosecution case suffers from lot of legal infirmities and
appellants have been proceeded by the prosecution only on
suspicion which is impermissible under criminal jurisprudence
and sought for allowing the appeal.
26. Alternatively, Sri R.B.Deshpande and Sri C.H.
Hanumantharaya, learned advocates, would contend that
taking note of the fact that the isolated incident has taken place
long back and appellants are now middle aged persons who are
married and settled in the Society, further taking note of the
fact that the incident that occurred near 'COOL JOINT' is not
the incident which ultimately resulted in death of Rithin, this
Court may set-aside the Order of imprisonment by enhancing
the fine amount reasonably.
27. Per contra, Sri Channappa Erappa, learned High Court
Government Pleader supports the impugned judgment. He
would further contend that admittedly Rithin and other
prosecution witnesses hailed from Assam State and they had
come to Chikkamagaluru to the College for pursuing
Engineering graduation. On account of the previous enmity
- 14 -
NC: 2025:KHC:5353
especially in the festival 'Chunchana' the incident has occurred
at the spur of the moment.
28. He also pointed that even after assault near 'COOL
JOINT', accused persons followed the injured near his house
and again picked up quarrel at about 10.30 pm wherein there
were number of assaults made by appellants including accused
No.5 with rod and cricket wickets on the vital parts of Rithin's
body whereby Rithin had to sustain injuries. When his friends
tried to rescue, one of the accused persons also tried to
strangulate Abhijeet Sharma.
29. All these aspects would sufficiently establish that there
was an intention to take away the life of Rithin by appellants
and accused No.5 on the ground that they had challenged the
power of localites and thus all ingredients to attract the offence
has been established by the prosecuting by placing cogent
evidence on record and thus sought for dismissal of the appeal.
30. Insofar as alternative submission is concerned, learned
High Court Government Pleader would contend that life of
Rithin would not come back by paying some additional fine
amount and therefore, imprisonment ordered by the learned
- 15 -
NC: 2025:KHC:5353
Sessions Judge should be maintained to see that proper justice
is rendered to deceased Rithin and sought for dismissal of the
appeal in toto.
31. Having heard the parties in detail, this Court perused the
material on record meticulously.
32. On such perusal of the material on record, the following
points would arise for consideration:
(i) Whether the material evidence placed on record
by the prosecution would be sufficient enough to
maintain the conviction of the appellants for the
aforesaid offences?
(ii) Whether the appellants make out a case that the
impugned judgment is suffering from legal
infirmity, perversity and thus calls for
interference?
(iii) Whether sentence needs modification?
(iv) What order?
33. REGARDING POINT Nos.1 and 2: In the present case,
Rithin losing his life pursuant to the injuries sustained by him in
the incident that occurred on 22.04.2006 at about 9.00 pm
near 'COOL JOINT' canteen and again at about 10.45 pm near
- 16 -
NC: 2025:KHC:5353
the house of the deceased stands established by placing
necessary evidence on record.
34. Suggestions made to the prosecution witnesses when
considered cautiously, defence did not suggest to the witnesses
that in the second incident that occurred near house No.28 at
10.45 pm, appellants were not present. It is their case that
localites got enraged with the behavior of Rithin and his friends
and it is they who assaulted Rithin.
35. Prosecution case reveals that after changing T-shirt in
their house, Rithin came back to his house which is house
No.28 and then at about 10.30 pm, he called accused No.1
over mobile phone and enquired as to why he has been
assaulted by accused No.1 and person who was wearing blue T-
shirt which clearly shows that Rithin was not even knowing the
name of accused No.5.
36. Accused No.1 at that juncture, said to have replied to
Rithin that they are from North India and they should not under
estimate the power of localites and told him that they will have
to behave properly and abused him in filthy language. If the
- 17 -
NC: 2025:KHC:5353
matter had stopped there itself, probably Rithin would have
survived.
37. On the contrary, accused No.1 and other accused persons
came in a Maruthi Zen car and motorcycle near the house of
Rithin and again picked up quarrel at about 10.45 pm. It is
also found from prosecution witnesses apart from accused
persons, some localites had also assembled there.
38. When accused No.5 proclaimed that he was the person
who was wearing blue T-shirt and whatever Rithin was
intending to do, he can do so, altercation got aggravated and
there was not only exchange of words but also exchange of
blows.
39. It is specific case of the prosecution that at the time of
the second incident, appellants were armed with cricket wickets
and rods. Assault has taken place according to the prosecution
on the body parts of Rithin with rods and wickets. There is
specific allegation that appellant No.1 assaulted Rithin on the
back of the head. When Abhijeet Sharma tried to pacify the
quarrel, accused No.4 tried to strangulate him. Ultimately, it is
Heeral Patel who pacified the quarrel.
- 18 -
NC: 2025:KHC:5353
40. When Rithin was taken to Holy Cross Hospital at about
12.45 a.m., no doubt, the injured and the persons who
accompanied them revealed to the doctor that Rithin had
sustained the injuries by fall from motor bike. Prosecution has
explained that under the fear that they will have to face the
criminal trial in the Court as they were from North India and
had come to pursue their education, they intentionally gave
such a wrong history while getting Rithin treated in the
hospital.
41. Whether at all such an explanation could be accepted or
not is a question that needs reconsideration. But, learned
Sessions Judge has accepted that it is a proper explanation and
has noted that history narrated before the doctor who treated
Rithin at the first instance and contents of complaint are
contradictory to each other, what is the evidentiary value to be
attached to such a contradictory statement is discussed at
length by the learned Trial Judge in the impugned judgment
and accepted that explanation as a plausible explanation.
42. Fact remains that trend of cross-examination would go to
show the incident occurred near 'COOL JOINT' canteen is not
- 19 -
NC: 2025:KHC:5353
seriously disputed but for the second incident is concerned, it is
the specific case of the appellants including accused No.5 that it
is the localites who assaulted Rithin. Further where the
appellants were found at the time of second incident is not
forthcoming on record either in the form of suggestion to the
prosecution witnesses or when they were examined at the time
of recording the accused statement.
43. Further, Rithin, after getting treated in the Holy Cross
Hospital, came home. Two days later, he had intimated his
friends that he is having severe pain in the head and back.
After having dinner, when his friends came to house of Rithin,
they noticed that there was no response from Rithin when they
knocked the door and being suspicious, friends peeped into
window and noticed that Rithin was lying unconscious. It is
then they broke open the door on 25.04.2006 at 9.45 pm and
again shifted him to the hospital at about 10.30 pm wherein,
Rithin was declared dead.
44. The time gap between first incident, second incident and
death of Rithin is only 2 to 3 days. On 22.04.2006 the first
incident occurred at 'COOL JOINT' at 9.00 pm, second incident
- 20 -
NC: 2025:KHC:5353
is at 10.45 pm on the same day and last incident is on
25.04.2006 at 9.45 pm friends noticed that Rithin was
unconscious and on 25.04.2006 Rithin was declared to be dead
at 10.45 pm.
45. Therefore, argument putforth on behalf of the appellants
that there is no nexus between the injuries sustained by Rithin
in the incident occurred on 22.04.2006 and his death is not
established by the prosecution cannot be countenanced in law.
46. Admittedly, other injured persons have also supported
the case of the prosecution which is corroborated by placing
wound certificate on record. It is well settled that testimony of
injured eyewitness must be kept at higher pedestal.
47. Taking note of these aspects of the matter, learned
Sessions Judge has clearly considered the case of the
prosecution as well as the defence in a harmonious and
judicious manner and analyzed the material on record and
rightly recorded an order of conviction for the offence
punishable under Section 304 Part II of the Indian Penal Code
as a major offence.
- 21 -
NC: 2025:KHC:5353
48. There is no material on record to scale down the said
offence on behalf of the appellants to still lesser offence under
Section 324 IPC. Injured eye witnesses having supported the
case of the prosecution and in the absence of any previous
enmity established by the defence so far as the other injured
persons to depose falsely against them, this Court is of the
considered opinion that evidentiary value attributed to the
injured eye witnesses by the learned Sessions Judge does not
require any further interference in these appeals even after re-
appreciation of the material evidence on record.
49. Contradictions elicited in the cross-examination of
prosecution witnesses is also taken note of by the learned
Sessions Judge in more than one paragraphs while considering
the case of the appellants arguing for acquittal.
50. However, those contradictions, on re-appreciation, this
court is of the considered opinion that they are minor in nature,
as no witness is expected to depose like a tape recorder and
evidence that is to be adduced before Court is not a memory
test.
- 22 -
NC: 2025:KHC:5353
51. Applying these principles of law to the case on hand, this
Court does not find any legal infirmity or perversity in the
impugned judgment while recording the conviction of the
appellants for the aforesaid offences.
52. In view of the foregoing discussion, point Nos.1 and 2 are
answered in the affirmative and negative respectively.
53. REGARDING POINT No.3: As rightly contended on behalf
of the appellants, when the learned Sessions Judge has
recorded an order of conviction for the offence punishable
under Section 304 Part II of the Indian Penal Code and State
did not chose to file any appeal nor de facto complainant, this
Court is of the considered opinion that for the offence
punishable under Section 304 Part II of the Indian Penal Code,
there need not be compulsory imprisonment.
54. To appreciate said aspect of the matter, it is necessary to
cull out Section 304 of the Indian Penal Code, which reads as
under:
- 23 -
NC: 2025:KHC:5353
304. Punishment for culpable homicide not
amounting to murder.--
Whoever commits culpable homicide not amounting to
murder shall be punished with imprisonment for life, or
imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine, if the
act by which the death is caused is done with the
intention of causing death, or of causing such bodily injury
as is likely to cause death,
or with imprisonment of either description for a term
which may extend to ten years, or with fine, or with both,
if the act is done with the knowledge that it is likely to
cause death, but without any intention to cause death, or
to cause such bodily injury as is likely to cause death.
55. On careful reading of second portion of Section 304 of the
Indian Penal Code which is usually termed as Part II of Section
304, it is crystal clear that convicting Court has got discretion
to impose imprisonment or fine or both unlike offence falling
under first part of Section 304 IPC where there is no discretion
to impose only fine.
56. Taking note of the argument put forth on behalf of the
appellants that the incident is an isolated incident and occurred
at the spur of the moment and appellants are now middle aged
persons who are settled with family, at this distance of time, if
they are directed to undergo imprisonment as ordered by the
- 24 -
NC: 2025:KHC:5353
learned Sessions Judge in the impugned judgment, it would
work out harsh on them.
57. No doubt, by enhancing fine amount and setting aside
imprisonment period for the appellants would not bring back
the life of Rithin, who lost his life in the incident at the young
age.
58. Criminal justice system especially sentencing policy is a
developing system in our country. One of the celebrated
principles which would govern sentencing area in the Indian
Criminal Justice system is that role of Courts while appreciating
the material evidence for recording an order of conviction is
altogether different from the role to be exercised by the Court
while passing appropriate sentence in a given case.
59. Yet another important principle that would govern the
sentencing policy is that Courts are required to "hate the crime
and not criminal". Likewise, one cannot forget the principle
that "every sinner has a future".
60. Keeping the above in the background, when material on
record is analyzed, the incident is of the year 2006. The appeal
- 25 -
NC: 2025:KHC:5353
is being decided in the year 2025. Taking note of the
developments in the life of the appellants and family of the
deceased, this Court is of the considered opinion that instead of
directing the appellants to undergo imprisonment as ordered by
the learned Sessions Judge, if the fine amount is enhanced by
another one lakh for each of the appellants for all the aforesaid
offence (along with Rs.50,000/- already imposed by the learned
Sessions Judge in all Rs.1,50,000/-) ends of justice would be
met.
61. Out of the fine amount recovered, if a sum of
Rs.4,00,000/- is ordered to be paid as compensation to C.W.5,
ends of justice would be better served.
62. Accordingly, point No.3 is answered partly in the
affirmative.
63. REGARDING POINT No.4: In view of the finding of this
Court on point Nos.1 to 3 as above, the following:
ORDER
(i) Criminal Appeals are allowed in part.
- 26 -
NC: 2025:KHC:5353
(ii) While maintaining the conviction of the appellants
for the offence punishable under Sections 143,
148, 323 and 304 Part II r/w Section 149 of the
Indian Penal Code, sentence of imprisonment
ordered by the learned Sessions Judge is set-aside
by directing each of the appellants to pay
enhanced fine in a sum of Rs.1,00,000/- in
addition to Rs.50,000/- imposed by the learned
Sessions Judge, in all Rs.1,50,000/-, on or before
10th March 2025 failing which each of the
appellants shall undergo simple imprisonment for a
period of one year.
(iii) Out of the fine amount recovered, Rs.4,00,000/-
inclusive of compensation if any, ordered by the
learned Sessions Judge in the impugned judgment,
is ordered to be paid to C.W.5 under due
identification.
(iv) Office is directed to return the Trial Court Records
with copy of the order, forthwith.
Sd/-
(V SRISHANANDA)
JUDGE
kcm
