Karnataka High Court
M.S. Kumar vs State Of Karnataka on 18 February, 2025
Author: V Srishananda
Bench: V Srishananda
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CRL.A No. 1076 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL APPEAL NO. 1076 OF 2013
BETWEEN:
M.S. KUMAR
S/O LATE SHIVAPPA,
AGED ABOUT 31 YEARS,
SALES EXECUTIVE,
RED CROSS GROUP OF COMPANY,
GANDHI BAZAR, SHIMOGA CITY,
NATIVE OF KAGATHUR VILLAGE,
CHANNAGIRI TALUK,
DIST. CHIKMAGALUR
...APPELLANT
(BY SRI. A.V. RAMAKRISHNA, ADVOCATE FOR
SRI. CHANDRASHEKAR N SANGOLLI, ADVOCATE)
AND:
Digitally STATE OF KARNATAKA
signed by BY RURAL POLICE,
MALATESH
KC CHIKMAGALUR,
REPRESENTED BY
Location:
HIGH STATE PUBLIC PROSECUTOR,
COURT OF HIGH COURT BUILDING,
KARNATAKA BANGALORE-560 001
...RESPONDENT
(BY SRI. CHANNAPPA ERAPPA, HCGP)
THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND
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CRL.A No. 1076 of 2013
SENTENCE DATED 03.10.2013 PASSED BY THE I ADDL. DIST.
AND S.J., CHIKMAGALUR IN S.C.NO.96/2009 - CONVICTING
THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S
448,504,307,324,427,436 OF IPC.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL JUDGMENT
Heard Sri. A. V. Ramakrishna, learned counsel for the
appellant and learned High Court Government Pleader for
the State.
2. The appellant-accused by name Kumara who
has been convicted in S.C.No.96/2009 vide judgment
dated 03.10.2013, and sentenced by order dated
11.10.2013, for the offence punishable under Sections
448, 504, 307, 324, 427 and 436 of IPC, has questioned
the validity of the judgment of conviction and order of
sentence in this appeal. The appellant was ordered to
undergo simple imprisonment for a period of four years for
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the highest offence under Sections 307 and 436 of IPC and
to pay fine of Rs.20,000/- with a default sentence.
3. Essential factual matrix required for the
disposal of the appeal on merits are as under:
3.1. A complaint came to be lodged with
Chikmagalur Rural Police by the complainant PW-1 Smt.
Sharadamma contending that her daughter Mamatha was
sought to be given in marriage to a distant relative by
name Kumara (appellant herein).
3.2. However, there were some differences in the
said alliance and there was a decision not to marry
Mamatha to the appellant. Being enraged with the said
decision, on 05.06.2009, at about 12.30 p.m., when
complainant was in their house at Malledevarahalli Village,
Chikmagalur, along with Mamatha, the accused trespassed
into the house of the complainant through cattle shed and
picked up quarrel with the complainant, abused her in
filthy language and demanded that Mamatha should be
given in marriage to him. So demanding, he suddenly
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attacked the complainant with kathi (chopper) and
stabbed on her ribs and caused injury. When Mamatha
came to rescue the complainant, the accused attacked
Mamatha also with the help of a knife and caused injuries.
3.3. At that juncture, Mamatha dragged her mother
outside the house so as to save her life and being further
enraged, the accused set fire to the house and destroyed
the clothes, cash of Rs.10,000/- and valuable articles like
silk sarees, watch, mobile phone, etc.
3.4. Based on the complaint, police registered
criminal case against the accused for the offence under
Sections 324, 448, 307, 436, 504 and 427 of IPC.
3.5. After thorough investigation, charge sheet came
to be filed by the police for the aforesaid offences and
inter alia arrested the appellant and sent him to judicial
custody.
3.6. On receipt of charge sheet, learned Trial
Magistrate took cognizance of the offences alleged against
the appellant herein and committed the case to learned
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District Court. The learned District Judge made over the
case to I Addl. District Judge who took cognizance of the
aforesaid offences and secured the presence of the
accused from the judicial custody and framed the charges.
3.7. The accused pleaded not guilty. Therefore, trial
was held.
3.8. In order to bring home the guilt of the
appellant, prosecution proceeded to examine 11 witnesses
as PW-1 to PW-11. Prosecution also placed on record 16
documentary evidence which were exhibited and marked
as Exs.P1 to P16.
4. Prosecution also placed on record 13 material
objects which were marked as MO-1 to MO-13 consisting
of steel knife with black hand, kathi, blue colour blouse,
violet colour petticoat, broken steel knife, saree, cement
flake with bloodstain, cement flake without bloodstain, etc.
5. During the course of cross-examination of PW-
4, contradictions were elicited which were marked as
Ex.D1 and D1(a). A photo was also marked as Ex.D2.
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6. On conclusion of recording of evidence, learned
Sessions Judge proceeded to record the accused
statement as is contemplated under Section 313 of the
Cr.P.C., wherein accused has denied all the incriminatory
circumstances put to him which were found in the case of
the prosecution, but failed to lead any defense evidence.
7. Thereafter, learned Trial Judge heard the
arguments of the parties in detail and on cumulative
consideration of the oral and documentary evidence placed
on record in a cumulative manner, convicted the appellant
for the offence and sentenced as under:
"Accused M.S.Kumara is convicted u/sec.235(2)
of Cr.P.C. for the offences punishable under Sections
448, 504, 307, 324, 427, 436 of IPC.
Accused shall undergo SI for a period of 4 years
for the offence u/sec. 307 of IPC and also directed to
pay fine of Rs.20,000/-; in default, he shall undergo
further SI for a period of 3 months.
Further, accused sentenced to undergo SI for a
period of 4 years for the offences U/s.436 of IPC and
directed to pay fine of Rs.20,000/- in default of fine
amount he shall undergo further SI for a period of 3
months.
Further accused sentenced to undergo SI for a
period of 3 months each for the offences U/s.324,
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448, 504 and 427 of IPC. All sentences shall run
concurrently.
Out of the fine amount, it is ordered to pay
Rs.30,000/- as compensation to PW-1
Smt.Sharadamma u/sec.357(3) of Cr.P.C.
MO-1 Knife and MO-2 sickle (kathi) are ordered
to be confiscated to the State, after appeal period is
over.
MOs.3,4,5,6,7,8,9,10,11,12 and 13 are ordered
to be destroyed, after appeal period is over, as
worthless.
The period of judicial custody already undergone
by the accused is permitted to set off under section
428 of Cr.P.C."
8. Being aggrieved by the same, the accused is
before this Court in this appeal.
9. Sri. A. V. Ramakrishna, learned counsel
representing the appellant, reiterating the grounds urged
in the appeal memorandum, vehemently contended that
the material on record is not sufficient enough to maintain
the conviction of the appellant for the aforesaid offences
and hence sought for allowing the appeal.
10. He would further contend that the question of
trespassing in to the house would not come into play
inasmuch as the accused is none other than the relative of
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the complainant and visiting the house of his relative
should not be treated as an offence under Section 448 of
IPC and thus sought for acquittal of the appellant for the
offence under Section 448 of IPC by allowing the appeal.
11. He would also contend that the material on
record and the wound certificate would not make out a
case that neither Sharadamma nor Mamatha sustained
any grievous injuries and therefore per se the offence
under Section 307 of IPC cannot be maintained in the case
on hand.
12. He would also contend that the question of
conviction of the appellant for the offence under Section
436 of IPC is also not permissible inasmuch as there is no
material evidence on record, except the oral testimony of
PW-1 and PW-2 that the accused has actually set the fire
to the house of the complainant. Therefore the
ingredients to attract the offence under Section 436 of
IPC, namely, mischief by fire, is not proved by the
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prosecution in the case on hand and sought for allowing
the appeal.
13. He would further contend that, at the most,
since there was an oral altercation on the day of the
incident, the offence under Section 324 of IPC could only
be maintained in the facts and circumstances of the case
and thus sought for allowing the appeal.
14. Alternatively, Sri. Ramakrishna would contend
that since the major offences are not established by
placing cogent evidence on record, this Court may
consider the period of sentence already undergone by the
appellant, as period of imprisonment for the remaining
offences and taking into consideration the fact that PW-2
and appellant are now married and well settled in their
families with children, suitable enhancement of the fine
amount may be made and thus sought for allowing the
appeal to that extent.
15. Per contra, Sri. Channappa Erappa, learned
High Court Government Pleader supports the impugned
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judgment by contending that PW-1 and PW-2 being the
injured witnesses have deposed before the Court with
graphic details as to what happened on the fateful day.
16. He would further contend that material
evidence on record would also be sufficient enough to
maintain conviction of the appellant for all the offences
and thus sought for dismissal of the appeal.
17. He would further contend that the material
objects placed on record, namely, bloodstained clothes,
broken steel knife, saree, steel knife with black handle,
kathi, cement flake with bloodstain, would definitely
establish that there was an injury caused by use of MO-1
and MO-2 to assault PW-1 and PW-2 by the accused and
accused had come prepared to take away the life of PW-1
on account of the fact that PW-1 failed to marry PW-2 to
him which was agreed earlier. Therefore, there is
sufficient motive for the incident. Accused trespassed into
the house through the cattle shed door and if at all the
argument of the appellant is to be appreciated, he would
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have right royally entered from the main door and thus
sought for dismissal of the appeal.
18. Insofar as alternate submission of the learned
counsel for the appellant is concerned, learned High Court
Government Pleader would contend that if people like the
appellant are shown any leniency, similarly placed
perpetrators of the crime would get encouraged and they
may commit similar activities which sends wrong message
to the Society and thus sought for dismissal of the appeal
in toto.
19. Having heard the arguments of learned counsel
for the parties in detail, this Court perused the material on
record meticulously. On such perusal, the following points
arise for consideration in this appeal:
(i) Whether the material evidence placed on record would
be sufficient enough to maintain the conviction of the
appellant for the offence punishable under Section
448, 504, 307, 324, 427 and 436 of IPC?
(ii) Whether the appellant makes out a case of legal
infirmity and perversity in the findings recorded by
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the learned Trial Judge in convicting the appellant for
the aforesaid offence?
(iii) Whether the sentence needs modification?
(iv) What Order?
20. REG. POINT NOS.1 & 2: In the case on hand,
material evidence on record and the oral testimony of
PW-1 and PW-2 including the wound certificate of
Sharadamma, PW-1 marked at Ex.P7, shows that there
are 6 injuries and all the 6 injuries are simple in nature.
21. In Ex.P14, the wound certificate of PW-2, the
doctor has noticed 2 injuries on the body of PW-2 which
are also simple in nature.
22. If at all, accused had any intention to take away
the life of PW-1 and PW-2, as is portrayed by the
prosecution, accused would have accomplished his
intention, especially, when there were no other persons
other than PW-1 and PW-2 at the time of incident.
Material on record would also go to show that after PW-1
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sustained injury near the rib region, PW-2 dragged PW-1
out of the house so as to save her.
23. According to the prosecution, it is at that
juncture the accused set the house into fire, whereby
there was loss of valuable articles. Thereafterwards,
accused ran away from the spot. With the help of
neighbours, both the injured persons were shifted to the
hospital. There is no delay in lodging the complaint and
the doctor who examined the injured persons, issued
Exs.P7 and P14. Sharadamma was examined at about
1.30 p.m. on 05.06.2009 itself, whereas the incident has
occurred around 12.30 p.m.
24. All these factors when viewed cumulatively, this
Court is of the considered opinion that the material
evidence on record is hardly sufficient to maintain the
conviction for the offence punishable under Sections 307
of IPC.
25. Prosecution agency is not able to collect the
burnt ash or the damaged valuable articles at the time of
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conducting the spot mahazar. Therefore, the material on
record would also not be sufficient to maintain the
conviction of the appellant for the offence under Section
436 of IPC.
26. However, the other material on record would be
sufficient enough to maintain the conviction of the
appellant for the remaining offences, as the appellant has
admittedly entered the house of the complainant through
cattle shed door and not as a relative of the house who
would usually enter through the main door.
27. Recovery of the weapons and injuries noted in
Exs.P7 and P14, would make it clear that there was blood
injury caused by use of MO-1 and MO-2 by the appellant.
All these facts when viewed cumulatively, this Court is of
the considered opinion that the appellant is entitled for
acquittal of offence under Section 307 and 436 of IPC and
his conviction for remaining offences are to be maintained.
28. In view of the foregoing discussion, point No.1
and point No.2 are answered partly in affirmative.
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29. REG. POINT NO.3: In view of the above
findings, material on record would indicate that the
accused was in custody for a period of nine months. It is
also to be noted that both PW-2 and the appellant are now
married and settled in life with their respective spouses
and they are also having 2 children, each.
30. Therefore, ends of justice would be met in the
case on hand, by directing the custody period already
undergone by the appellant as the period of imprisonment
for the remaining offences, by enhancing fine amount in a
sum of Rs.1,00,000/-, in addition to the fine amount
already deposited. Accordingly, point No.3 is answered in
the partly in affirmative.
31. REG. POINT NO.4: In view of the findings of
this Court on point Nos.1 to 3 as above, following:
ORDER
i) The appeal is allowed.
ii) Appellant is acquitted for the offence
under Sections 307 and 436 of IPC. Conviction
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of the appellant for the remaining offences is
maintained.
iii) Consequently, the sentence ordered
by the learned Trial Judge is modified as under:
The custody period already undergone
by the appellant is treated as the period of
imprisonment for the remaining offences by
enhancing the fine amount in a sum of
Rs.1,00,000/- (Rs.40,000/- + Rs.1,00,000/-
= Rs.1,40,000/-).
iv) Enhanced fine amount is to be
deposited on or before 20.03.2025, failing
which, the accused - appellant shall undergo
imprisonment for a period of one year.
v) On receipt of enhanced fine amount,
a sum for Rs.50,000/- is ordered to be paid as
compensation to PW-1 and balance sum of
Rs.50,000/- to PW-2, under due identification.
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Office is directed to return the Trial Court records
with a copy of this judgment, for passing the modified
conviction warrant, forthwith.
Ordered accordingly.
Sd/-
(V SRISHANANDA)
JUDGE
RD
