Karnataka High Court
Dinesh vs State Of Karnataka on 19 February, 2025
Author: V Srishananda
Bench: V Srishananda
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CRL.A No. 41 of 2013
C/W CRL.A No. 40 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL APPEAL NO. 41 OF 2013 (C)
C/W
CRIMINAL APPEAL NO. 40 OF 2013
IN CRL.A No. 41/2013
BETWEEN:
1. DINESH
S/O SWAMYGOWDA,
AGED ABOUT 29 YEARS,
OCC:AGRICULTURIST,
R/AT BOOKAHALLIKOPPALU VILLAGE,
BOOKANAKERE HOBLI,
K.R.PET TALUK 571426,
MANDYA DISTRICT.
2. SWAMY GOWDA
S/O SANNEGOWDA,
AGED ABOUT 62 YEARS,
Digitally OCC:AGRICULTURIST,
signed by R/AT BOOKAHALLIKOPPALU VILLAGE,
MALATESH
BOOKANAKERE HOBLI, K.R.PET TALUK - 571426,
KC
MANDYA DISTRICT.
Location:
HIGH 3. MANJEGOWDA
COURT OF S/O GANDHANAHALLI GANDU SHIVANNA,
KARNATAKA AGED ABOUT 29 YEARS
OCC:AGRICULTURIST,
R/AT BOOKAHALLIKOPPALU VILLAGE,
BOOKANAKERE HOBLI,
K.R.PET TALUK-571426,
MANDYA DISTRICT.
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CRL.A No. 41 of 2013
C/W CRL.A No. 40 of 2013
4. DODDEGOWDA
S/O LATE SANNEGOWDA,
AGED ABOUT 52 YEARS,
OCC:AGRICULTURIST,
R/AT BOOKAHALLIKOPPALU VILLAGE,
BOOKANAKERE HOBLI,
K.R.PET TALUK-571426,
MANDYA DISTRICT.
5. RATHNAMMA
W/O SOMEGOWDA,
AGED ABOUT 52 YEARS,
OCC:AGRICULTURIST,
R/AT BOOKAHALLIKOPPALU VILLAGE,
BOOKANAKERE HOBLI,
K.R.PET TALUK-571426,
MANDYA DISTRICT.
6. SAVITHA
W/O SHIVAMURTHY,
AGED ABOUT 30 YEARS,
OCC:AGRICULTURIST,
R/AT BOOKAHALLIKOPPALU VILLAGE,
BOOKANAKERE HOBLI,
K.R.PET TALUK-571426,
MANDYA DISTRICT.
...APPELLANTS
(BY SRI. P PRASANNA KUMAR., ADVOCATE)
AND:
STATE OF KARNATAKA
BY K.R.PET RURAL POLICE,
REP.BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE-560 001.
...RESPONDENT
(BY SRI. CHANNAPPA ERAPPA, HCGP)
THIS CRL.A IS FILED U/S.374(2) CR.P.C BY THE
ADVOCATE FOR THE APPELLANTS PRAYING THAT THIS
HON'BLE COURT MAY BE PLEASED TO SET-ASIDE THE
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CRL.A No. 41 of 2013
C/W CRL.A No. 40 of 2013
JUDGMENT AND ORDER OF CONVICTION AND SENTENCE
DATED 31.12.2012 PASSED BY THE PRESIDING OFFICER, FAST
TRACK COURT, SRIRANGAPATNA IN S.C.NO.55/2011 -
CONVICTING THE APPELLANTS/ACCUSED NOS.2 TO 7 ARE
CONVICTED FOR THE OFFENCE P/U/S.143,148,323,324,326
AND 504 R/W. SEC.149 OF IPC. AND THE APPELLANTS/
ACCUSED NOS.2 TO 7 ARE SENTENCED TO UNDERGO S.I. FOR
A PERIOD OF THREE MONTHS FOR THE OFFENCE P/U/S.143 OF
IPC. FURTHER, THE APPELLANTS/ACCUSED NOS.2 TO 7 ARE
SENTENCED TO UNDERGO S.I. FOR A PERIOD OF SIX MONTHS
FOR THE OFFENCE P/U/S.148 OF IPC AND ETC.
IN CRL.A NO. 40/2013
BETWEEN:
SHIVAMURTHY
S/O LATE MALLEGOWDA
AGED ABOUT 37 YEARS
OCC: AGRICULTURE
R/A BOOKAHALLIKOPPALU VILLAGE,
BOOKANAKERE HOBLI, K R PET TALUK
MANDYA DISTRICT
...APPELLANT
(BY SRI. P PRASANNA KUMAR., ADVOCATE)
AND:
STATE OF KARNATAKA
BY K R PET RURAL POLICE
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE-560001
...RESPONDENT
(BY SRI. CHANNAPPA ERAPPA, HCGP)
THIS CRL.A IS FILED U/S.374(2) CR.P.C BY THE
ADVOCATE FOR THE APPELLANT PRAYING TO SET-ASIDE
THE JUDGMENT AND ORDER OF CONVICTION AND
SENTENCE DATED 31.12.2012 PASSED BY THE PRESIDING
OFFICER, FAST TRACK COURT, SRIRANGAPATNA IN
S.C.NO.77/2011 - CONVICTING THE APPELLANT/ACCUSED
NO.1 IS CONVICTED FOR THE OFFENCE
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CRL.A No. 41 of 2013
C/W CRL.A No. 40 of 2013
P/U/S.143,148,447,323,324,326 AND 504 R/W. SEC.149
OF IPC. AND THE APPELLANT/ ACCUSED NO.1 IS
SENTENCED TO UNDERGO S.I. FOR A PERIOD OF THREE
MONTHS FOR THE OFFENCE P/U/S.143 OF IPC AND ETC.
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 the learned counsel for the appellants
Sri. P. Prasanna Kumar and learned HCGP Sri. Channappa
Erappa for respondent.
2. Appellants in Crl.A.No.41/2013 are the accused
Nos.2 to 7 and appellant in Crl.A.No.40/2013 is the
accused No.1 who suffered an order of conviction in
S.C.No.55/2011 and S.C. No. 77/2011 respectively, on the
file of Sessions Judge, Fast Track Court at Srirangapatna
by the judgment dated 31.12.2012.
3. Facts in brief which are utmost necessary for
disposal of the present appeal are as under:
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4. A complaint came to be lodged with K.R. Pet
Police Station for the offences punishable under Sections
143, 147, 148, 447, 323, 324, 326, 114, 504 and 307 r/w
Section 149 of Indian Penal Code, 1908 (hereinafter
referred to as IPC for short).
5. It is contended in the complaint that on
31.10.2010 at 9.00 a.m. at Bookahallikoppalu Village,
Bookanakere Hobli, K.R. Pet Taluk in Sy.No.51/cp59,
within the limits of K.R.Pet Police Station, the complainant,
his wife, his sister -in-law and parents were cultivating the
land. The appellants and other accused persons formed
unlawful assembly, armed with deadly weapons like
choppers, machets etc., trespassed into their land with an
intention to dispossess them and also to take away the life
of the complainant party, committed rioting and assaulted
the complainant and his family members and all of them
sustained blood injuries. The quarrel was pacified by the
other villagers and thereafter accused persons escaped
from the place.
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6. Upon receipt of the complaint, K.R.Pet police
having registered a case as aforesaid, investigated the
matter thoroughly inter-alia arresting the
appellants/accused persons filed charge sheet.
7. On receipt of charge sheet, learned Magistrate
committed the matter to the Sessions Court as the offence
under Section 307 of IPC was exclusively triable by the
Court of Sessions.
8. On committal, the matter was made out to Fast
Track Court, established in Srirangapatna by learned
District Judge, Mandya. Learned Judge in the Fast Track
Court after securing the presence of the accused, on due
compliance of Section 207 of Code of Criminal Procedure,
1973 (hereinafter referred to as Cr.P.C. for short) framed
the charges for the aforesaid offences. The appellants and
other accused persons pleaded not guilty, therefore trial
was held.
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9. In order to bring home the guilt of the accused
persons, prosecution in all, proceeded to examined 16
witnesses comprising of the complainant, injured
witnesses, spot mahazar witnesses, seizure mahazar
witnesses and investigating Officers.
10. Prosecution placed on record 25 documents
which were registered and marked as Ex.P.1 to Ex.P.25
comprising of pahani, seizure mahazar, spot mahazar,
wound certificate of the injured persons, FIR, FSL report,
photographs and report. Prosecution also placed on record
16 material objects comprising of clubs, machets, stones,
insecticide tin, clothes worn by the injured persons with
blood stains, sample mud and blood stained mud.
11. On conclusion of the recording of evidence,
learned trial Judge recorded the statement of the accused
persons as is contemplated under Section 313 of Cr.P.C.
The accused persons have denied all the incriminatory
materials placed on record but did not chose to place their
version on records, in the form of written submission as is
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contemplated under Section 313(4) of Cr.P.C. nor placed
any defence evidence on record.
12. Learned trial Judge thereafter heard the
arguments of both sides and on cumulative consideration
of the oral and documentary evidence placed on record,
acquitted accused Nos.8 and 9 and convicted the accused
Nos. 1 to 7 and sentenced them as under:
"Accused No.s 1 to 7 is sentenced to
undergo Simple Imprisonment for a period of
three months for the offence punishable under
Section 143 of I.P.C.
Accused No.s 1 to 7 is sentenced to
undergo Simple Imprisonment for a period of
six months for the offence punishable under
Section 148 of I.P.C.
Accused No.s 1 to 7 is sentenced to
undergo Simple Imprisonment for a period of
three months for the offence punishable under
Section 447 of I.P.C.
Accused No.s 1 to 7 is sentenced to
undergo Simple Imprisonment for a period of
three months for the offence punishable under
Section 323 of I.P.C.
Accused No.s 1 to 7 is sentenced to
undergo Simple Imprisonment for a period of
six months for the offence punishable under
Section 324 of I.P.C.
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Accused No.s 1 to 7 is sentenced to
undergo Simple Imprisonment for a period of
six months for the offence punishable under
Section 504 of I.P.C.
Accused No.s 1 to 7 is sentenced to
undergo Simple Imprisonment for a period of
two years and fine of Rs.2,000/- each in
default they undergo Simple Imprisonment for
a period of three months for the offence
punishable under Section 326 of I.P.C.
The substantive sentences shall run
concurrently.
The period for which the accused No.s 1,
3 and 5 already undergone during the time of
trial is given set off against substantive
sentence.
Out of realised fine amount a sum of
Rs.5,000/- Rupees five Thousand Only) is
ordered to be given to the P.W.1. Ramegoda,
and Rs.2,000/- each to P.W.2- Kumari @
Kumaramma, P.W.3-Manjula, P.W.4-Nagamma
and P.W.9-Kendegowda as compensation
under Section 357 (1)(b) of Cr.P.C.
M.O.4 and M.O.5 is ordered to be
confiscated to the State after expiry of the
appeal period.
M.O.1 to M.O.3, and M.O.6 to M.O.16
since being worthless is ordered to be
destroyed after expiry of the appeal period.
Free copy of the judgment be supplied to
the accused No.s 1 to 7 forthwith.
The original judgement is kept in
S.C.55/11; copy of the same is retained in
R.A.77/11."
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13. Being aggrieved by the same, the appellants in
both the appeals who are accused Nos.2 to 7 and accused
No.1 respectively, have preferred these appeals.
14. Sri. P. Prasanna Kumar learned counsel or the
appellants in both the appeals reiterated the grounds
urged in the appeal memorandum and vehemently
contended that the learned trial Judge grossly erred in
convicting the appellants for the offence under Section 326
of IPC in the absence of any cogent material placed on
record to attract the ingredients of Section 326 of IPC.
15. He would further contend that a trivial incident
has been blown out of proportion and the same has not
been properly appreciated by the learned trial Judge while
passing the impugned judgment resulting in miscarriage of
justice and thus, sought for allowing the appeal.
16. Alternatively, learned counsel for the appellants
Sri. P. Prasanna Kumar would contend that at the most
the offence alleged against the appellants could be traced
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one under Section 324 of IPC, having regard to the fact
that blood injuries are noted in the wound certificates.
Therefore, custody period already undergone by the
appellants may be treated as period of imprisonment and
by enhancing the fine amount reasonably, appeals can be
allowed in part.
17. Per contra, Sri. Chennappa Erappa, learned
High Court Government Pleader supports the impugned
judgment. He further contended that when complainant
Ramegowda, his wife, his sister-in-law and others were
sowing the land in Sy.No.50/cp59 of Bookanahallikoppalu
village voluntarily all the appellants trespassed into the
land of the complainant and not only interfered with the
peaceful possession and enjoyment of the land, but, also
picked up the quarrel voluntarily and mercilessly attacked
the complainant party resulting in injuries noted by
doctors in wound certificates, which has been established
by the prosecution by placing cogent and convincing
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evidence on record and thus, the appeal grounds san merit
and sought for dismissal of the appeals.
18. He would further contend that the testimony of
the injured witnesses shall be kept on higher pedestal
while appreciating the material evidence on records and
seizure of the material objects under seizure mahazar
would corroborate the oral testimony of the prosecution
injured eyewitnesses and thus, sought for dismissal of the
appeal.
19. Insofar as, the alternate submission is
concerned Sri. Chennappa Erappa, would contend that
fracture injury having been noticed by the learned trial
Judge in the wound certificate pertaining to the injured,
PW-1 Ramegowda, minimum punishment for the offence
under Sections 326 is to be imposed to all the appellants
as an act of one appellant would bind all appellants with
the aid of Section 149 of IPC and thus, sought for
dismissal of the appeal in toto.
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20. Heard the parties in detail. This Court perused
the materials on record meticulously and on such perusal,
following points would arise for consideration.
1) Whether the material on record would be
sufficient enough to sustain the conviction of
the appellants for the offence punishable under
Section 326 of IPC?
2) Whether the appellants are successful in
establishing that the impugned judgment is
suffering from legal infirmity, perversity thus
calls for interference?
3) Whether the sentence is excessive?
4) What order?
Regarding Points No.1 and 2:
21. In the case on hand, the incident that occurred
on 31.10.2010 stands established by placing necessary
oral and documentary evidence on record. Complainant
party was in acquaintance with the accused party as the
accused party are also from the same village and they are
relatives. With regard to the civil dispute, the ugly incident
has occurred on the fateful day.
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22. The injured persons have been shifted to the
hospital and without loss of time complaint came to be
lodged. Allowing the real culprits to escape away from the
rigors of the law no injured persons would falsely implicate
the accused persons in the incident. Oral testimony of the
injured witnesses are sufficiently corroborated by way of
seizure of material objects recording of spot mahazar,
examination of the injured witnesses by the Government
doctors who have issued the wound certificate marked at
Exs.P.5, P.6, P.7, P.8 and P.9 by PWs-10 and 15 who are
the doctors.
23. These factors when viewed cumulatively,
material evidence on record would be sufficient enough to
hold that in the incident which was occurred on
31.10.2010 with the help of material objects clubs,
machets, stones and insecticide tin.
24. Doctors have also opined in their testimony that
the injuries noted by them on the body of the injured
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persons could be caused by use of material objects from
M.O.1 to M.O.8.
25. Thus, from the material evidences on record,
prosecution is successful in establishing the quarrel and
the injury sustained by the injured persons in the incident.
26. However, to establish a grievous injury, mere
oral testimony or the opinion of the doctor mentioned in
the wound certificate would not be sufficient, especially,
when it is a fracture injury. No doubt in the wound
certificate pertaining to Ramegowda there is a mention
that X-ray has been taken and based on the X-ray report
the injury No.1 is treated as grievous injury. Opinion of
the doctor with regard to injury No.1 in the wound
certificate pertaining to Ramegowda PW-1 is only an
opinion evidence as per Section 45 of the Indian Evidence
Act, 1872.
27. In order to bring home the guilt of an accused
in a given case especially for the grievous hurt as is
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defined under Section 320 of IPC punishable under Section
326 of IPC, prosecution is required to place original X-ray
film or the radiological report. In the absence of the same
conviction of the accused for the offence under Section
326 of IPC in every case cannot be sustained.
28. View of this Court in this regard is fortified by
the principles of law enunciated by the Division Bench of
this Court in the case of State v. Sheenappa Gowda
reported in (2011) 4 KCCR 2759, wherein it has been
held as under:
"11. Therefore, the question for
determination is limited to find out whether the
said injury No. 2 is proved to be a grievous
injury sustained by PW. 4. It is well settled that
in criminal cases, the burden of proving the guilt
of the accused is always on the prosecution and
that burden would not shift unless there is a
presumption or defence as enumerated in the
Penal Code, 1860 is taken by the accused. In
this case, the defence taken by the accused is
one of denial. It is clear from the evidence of
PW. 1 that he has given description of injury on
physical examination of PW. 4 and has come to
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the conclusion that there was fracture of the
middle phalanx. It is well settled that when the
prosecution alleges that grievous injury has been
caused, it is necessary for the prosecution to
prove the same beyond reasonable doubt. The
evidence of PW.1. would only show that there
was injury as described in the wound certificate -
Ex.P2. When PW. 1 suspected such fracture, he
ought to have referred the injured - PW. 4 for
taking X-ray to confirm his finding that there is
fracture of middle phalanx. It is now well settled
hat unless the prosecution produces the X-ray
for confirmation of fracture opined by the Doctor
on medical examination clinically it cannot be
said that the accused have caused grievous
injury of fracture. It is true that in the cross-
examination of PW. 1, the learned Counsel
appearing for the accused has not disputed the
nature of injuries spoken to by PW.1. However,
he same would not dispense with the production
the X-ray by the prosecution to prove beyond
reasonable doubt that the injured had sustained
fracture of middle phalanx, which is an opinion
given by PW. 1 Doctor only on clinical
examination of PW. 4, the injured. Therefore, it
is clear that the finding of the learned Sessions
Judge holding that the prosecution has failed to
prove that the accused Nos. 1 to 3 and 5 have
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committed the offence punishable under Section
326 of I.P.C. and the offence committed by them
falls within the ambit of Section 324 of I.P.C. is
justified."
29. Applying the principles of law enunciated in the
above case to the facts on hand, in the absence of original
X-ray films or the radiological report placed on record,
conviction of the accused for the offence punishable under
Section 326 of IPC is impermissible. Therefore, since the
blood injuries are found on the body of the complainant
party, the conviction of the appellants is to be scaled down
to offences punishable under Section 324 of IPC. In view
of the foregoing discussions points No.1 and 2 are
answered partly in the affirmative.
Regarding point No.3:
30. In view of the finding of this Court on points
No.1 and 2 wherein, this Court has acquitted the
appellants for the offence punishable under Section 326 of
IPC and scaled down to offence punishable under Section
324 of IPC and maintaining the conviction of appellants
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for the other offences, this Court is of the considered
opinion that the custody period already undergone by the
appellants if treated as period of imprisonment, for such of
the accused who are arrested and sent to the judicial
custody and enhancing the fine amount in a sum of
Rs.25,000/- each payable by each of the appellants in
addition to the fine amount already deposited by each of
the appellants would meet the ends of justice. Further, if a
sum of Rs.50,000/- is ordered to be paid as compensation
to the Ramegowda and a sum of Rs.10,000/- each to the
other injured persons PWs-2, 3, 4 and 9 would better
serve the ends of justice.
Accordingly, point No.3 is answered partly in the
affirmative.
Regarding point No.4.
31. In view of the finding of this Court on points No.
1 to 3 as above, following order is passed.
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ORDER
(i) Criminal Appeals are allowed in part.
(ii) Accused Nos.2 to 7 and accused No.1 who
are the appellants in Crl.A.No.41/2013 and
Crl.A.No.40/2013 respectively are acquitted
for the offence punishable under Section 326
of IPC.
(iii) While maintaining the conviction of the
appellants for the offence punishable under
Sections 143, 147, 148, 447, 323, 324, 114,
and 504 r/w Section 149 of Indian Penal
Code, 1908, custody period already
undergone by the appellants is treated as
period of imprisonment and each of the
appellants are directed to pay enhanced fine
of Rs.25,000/- in addition to the fine amount
already deposited on or before 20.03.2025.
Failure to make the payment of enhanced
fine amount on or before 20.03.2025,
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appellants shall undergo simple
imprisonment for a period of one year.
(iv) Out of the fine amount recovered, sum of
Rs.50,000/- is ordered to be paid as
compensation to the PW-1 Ramegowda and
Rs.10,000/- each to the other injured
witnesses PW-2, 3, 4 and 9 under due
identification.
(v) Office is directed to return the trial Court
records with copy of this order forthwith and
to issue modified conviction order.
Sd/-
(V SRISHANANDA)
JUDGE
BVK
