Karnataka High Court
Sri. Madan vs State By Channarayapatna Town Police ... on 8 January, 2025
Author: V Srishananda
Bench: V Srishananda
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CRL.A No. 1782 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL APPEAL NO. 1782 OF 2023
BETWEEN:
1. SRI. MADAN
S/O KUMARA,
AGED ABOUT 29 YEARS,
R/AT BEHIND COURT,
KUVEMPU NAGARA EXTENSION,
CHANNARAYAPATNA TOWN,
HASSAN DISTRICT-573 201.
2. SRI KUMARA @ KUMARACHR
AGED ABOUT 57 YEARS,
R/AT BEHIND COURT,
KUVEMPU NAGARA EXTENSION,
CHANNARAYAPATNA TOWN,
Digitally
signed by
HASSAN DISTRICT-573 201.
VIDYA G R
Location:
HIGH COURT 3.
OF SMT LEELAVATHI
KARNATAKA
W/O KUMARACAHAR,
AGED ABOUT 52 YEARS,
R/AT BEHIND COURT,
KUVEMPU NAGARA EXTENSION,
CHANNARAYAPATNA TOWN,
HASSAN DISTRICT-573201.
... APPELLANTS
(BY SRI. SATHISHA D J., ADVOCATE)
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CRL.A No. 1782 of 2023
AND:
1. STATE BY CHANNARAYAPATNA
TOWN POLICE STATION
CHANNARAYAPATNA,
HASSAN DISTRICT-573 201
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT OF 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 IMPUGNED JUDGMENT OF CONVICTION
AND ORDER OF SENTENCE PASSED ON 16.01.2023 BY THE
LEARNED 4TH ADDITIONAL DISTRICT AND SESSIONS JUDGE,
HASSAN DISTRICT AT CHANNARAYAPATNA IN
S.C.NO.177/2018 AND DIRECT THE ACQUITTAL OF THE
APPELLANTS AND ETC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
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CRL.A No. 1782 of 2023
ORAL JUDGMENT
Though the matter is listed for admission, by consent
of learned counsel appearing for parties, the matter is
taken up for final disposal.
The appellants are accused 1 to 3, who suffered an
order of conviction for the offences punishable under
Sections 341, 323, 324 and 504 read with Section 34 of
IPC were sentenced as under:-
ORDER ON SENTENCE
1. I have heard, Sri D.K.M., learned counsel
for the accused Nos.1 to 3 and learned Public
Prosecutor for State on sentence.
ii. Sri D.K.M., learned counsel for the
accused Nos.1 to 3 submitted that it has
clearly come in the evidence that there is a
civil dispute with respect to the house
property, wherein both accused family and
complainant family residing. It has also come
on record that in front portion the accused
family residing and back portion of the house
the complainant family was residing at the
time of incident. With respect to said civil
dispute some quarrel might have taken
place. The accused persons are not the
habitual offenders and there are no other
cases pending against them. Accused No.1 is
an unmarried, accused No.2 and 3 are
husband and wife. The accused No.1 to 3 are
the permanent residents of Kuvempu Nagara
Extension in Channarayapatna Town and
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having good name in the locality and if the
accused persons are sent behind the Bars
the entire family would be put great
hardship. Considering all the aforesaid
aspect of the matter, he seeks to award only
nominal fine amount instead of any sentence
of imprisonment by taking lenient view.
iii. On the other hand, learned Public
Prosecutor for State has submitted that no
doubt civil disputes are pending between the
parties, but the accused persons have taken
law into their own hand, picked up quarrel
with the complainant family and assaulted
complainant family. Further, the accused
persons went to the Hospital, wherein
complainant and her family admitted and
made an attempt to assault son of
complainant in the Hospital also. Taking into
consideration of the above, the accused
Nos.1 to 3 be convicted for the maximum
punishment prescribed under the respective
provisions.
iv. I have considered the entire case and
also taken into consideration the submission
made by counsel for accused Nos. 1 to 3 and
learned counsel for the Public Prosecutor for
the State.
v. The accused No.1 to 3 are convicted for
the offences punishable U/s.341, 504, 323
and 324 r/w. Section 34 of I.P.C. It has
come in the evidence, the accused persons
when PW.2 was coming after finishing his
work in front of house of accused,
intercepted PW.2 and picked up quarrel.
accused No.1 to 3 assaulted PW.2 with
hands and stone (sic). Further, when PW.1
and 4 came for rescue of PW.2. accused
No.1 to 3 assaulted PW.1, 2 and 4 with
hands. Accused No.3 also bit PW.1 on her
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left thumb and index finger. As could be
seen from the evidence, no doubt a civil
dispute is pending with respect to the house
property between the accused family and
complainant family. The accused family and
complainant family are close relatives. The
accused family accused complainant family
are residing in the same house. The accused
family residing in front portion of the house
and complainant family was residing in the
back portion of the house. Both family
claiming ownership over the said house
property. With respect to the said house
property both family developed enmity
against each other and present incident took
place, case and counter cases are registered
against each other.
vi. The sentence prescribed for the offence
punishable Section 341 of Indian Penal Code
is simple imprisonment for a term which may
extend to one month, or with fine which may
extend to five hundred rupees, or with both.
The punishment prescribed for the offence
under Section 323 of Indian Penal Code is
upto 01-year or with fine, which may extend
to Rs.1,000/- or with both. The punishment
provided under Section 324 is upto 03 years
or with fine, or with both. The punishment
provided under Section 504 of Indian Penal
Code is upto 02-years or with fine or with
both. Considering all the aforesaid attending
circumstances, having regard to the gravity
of the offences and keeping in mind the year
of incident and taking into consideration of
submission made by counsel for accused
Nos.1 to 3, I find it is just and proper to
sentence the accused Nos. 1 to 3 as under;
ORDER
The accused Nos.1 to 3 are sentenced to
pay fine of Rs.500/- each (One thousand
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rupees only) (sic) for the offence punishable
under Section 341 r/w. 34 of Indian Penal
Code. In default to pay fine amount, they
shall undergo simple imprisonment for a
period of 10 days.
The accused Nos. 1 to 3 are sentenced to
pay fine of Rs.1,000/- each (One thousand
rupees only) for the offence punishable
under Section 323 r/w. 34 of Indian Penal
Code. In default to pay fine amount, they
shall undergo simple imprisonment for a
period of one month.
The accused No.1 to 3 are sentenced to
undergo simple imprisonment for a period of
6 (Six) months and to pay fine of Rs.
10,000/- each (Ten thousand rupees only)
for the offence punishable under Section 324
r/w. 34 of Indian Penal Code. In default to
pay fine amount, they shall undergo simple
imprisonment for a period of two months.
The accused No.1 to 3 are sentenced to
undergo simple imprisonment for a period of
3 (Three) months and to pay a fine of
Rs.5,000/- each (Five thousand rupees only)
for the offence punishable under Section 504
r/w. 34 of Indian Penal Code. In default to
pay fine amount, they shall undergo simple
imprisonment for a period of one to month.
On realization of fine amount, out of total
fine amount of Rs.49,500/-, a sum of
Rs.19,500/- shall be remitted to the State
and Rs.10,000/- each is ordered to be
released to PW.1- Nagarathna,PW.2 Lohith
and PW.6-Bharath as compensation under
Section 357 of Code of Criminal Procedure.
All the substantial sentences shall run
concurrently.
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M.O.1 to 4 are being worthless, hence,
ordered to be destroyed, after appeal period
is over or if an appeal is preferred, subject to
the result of an appeal.
Furnish copy of the judgment and an order
of sentence to accused Nos.1 to 3 free of
cost forthwith."
2. Being aggrieved by the same appellants have
preferred the present appeal.
3. Facts in the nutshell for disposal of the above
appeal are as under:
A crime came to be registered with Channarayapatna
Town Police based on the MLC intimation received from
Government Hospital, Channarayapatna. Thereafter,
Station House Officer of Channarayapatna Town Police
visited the Hospital and recorded the statement of one of
the injured, viz., Smt.Nagarathna and based on her
statement, a crime came to be registered by
Channarayapatna Town Police, whereunder, it has been
alleged that the husband of complainant died about 17
years earlier and thereafter she has been residing with her
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children in Channarayapatna; there were some civil
disputes with accused persons with regard to the property
owned by the complainant. There were regular quarrels in
that regard and when such being the position, on
02.04.2018 at about 9.30 p.m., when the complainant was
standing in front of her house, the accused persons
appeared there and intercepted the free movement of
complainant's son Lohith, who was coming home after
finishing the work and picked up a quarrel. When the
complainant and her another son Bharath tried to interfere
and pacify the incident, the accused persons abused them
in filthy language and threatened them to vacate the
house.
4. When the same was resisted, accused no.1
assaulted with a stone on the right hand and back of the
complainant and when Lohith tried to rescue the
complainant, at that juncture, accused no.1 assaulted
Lohith with the same stone on his right neck and accused
nos.3 and 4 also assaulted Lohith with hands, accused
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No.3 bit the left thumb and index finger of Lohith and
accused Nos.1 and 2 dragged the complainant and that in
the process, the saree of complainant had also fallen off
and at that time, when another son of complainant
Bharath tried to rescue, accused nos.1 and 2 and 4
assaulted him with hands.
5. At that juncture, somebody intimated the Police
and a Police Constable and Home guard reached the place
of incident and on they arriving on the scene of offence,
the quarrel was pacified and the injured persons were
taken to the Government Hospital, Channarayapatna.
6. The Police, after registering the case conducted
a detailed investigation, filed the chargesheet against the
accused persons, including the abated accused no.4 for
the offences punishable under Sections 341, 504, 307,
323, 324, 354(B) and 506 read with Section 34 of IPC.
7. On receipt of charge sheet, learned Trial
Magistrate took cognizance and committed the matter to
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the Sessions Court, as offence under Section 307 of IPC
was exclusively triable by the Sessions Court.
8. Learned Sessions Judge secured the presence
of accused persons and based on the material on record,
framed the charges. The accused persons pleaded not
guilty and therefore, trial was held in order to bring home
the guilt of accused persons.
9. The Prosecution in all examined 12 witnesses as
PW1 to PW12. Among them, PW1 is the complainant, who
is injured and witnesses Lohith and Bharath being two
other injured persons, spot mahazar witnesses, doctors
who issued the wound certificates of injured persons
Smt.Nagarathna, Lohith and Bharath and the Investigation
Officer were examined.
10. The Prosecution placed on record 12
documentary evidence, which were exhibited and marked
as Exhibits P.1 to P.12 comprising of complaint, statement
under Section 164 of Cr.P.C., mahazar, wound certificates
of injured witnesses, MLC intimation received by
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Channarayapatna Town Police from the Government
Hospital, Channarayapatna, Blood Grouping Certificate,
FSL Report and statements of witnesses of Prosecution
who have turned hostile to the case of prosecution.
11. Detailed cross-examination of prosecution
witnesses, especially the injured witnesses and the
complainant did not yield any positive material so as to
disbelieve the case of Prosecution.
12. The wound certificates marked at Exhibits-P6,
P7 and P8 pertaining to Lohith, Smt.Nagarathna and
Bharath corroborated the oral testimony of Prosecution
witnesses, so also the MLC intimation marked at Exhibit
P.9 clearly indicated that in the incident that took place,
the injured witnesses have suffered injuries on account of
assault made by the accused persons.
13. Thereafter, the statements of accused as is
contemplated under Section 313 Cr.P.C. were recorded by
the learned Sessions Judge, wherein the accused persons
have denied the incriminating evidence.
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14. Accused No.3 Smt.Leelavathi was examined as
DW1 and placed on record 9 documentary evidence which
were exhibited and marked as Exhibits D1 to D9
comprising of Khatha of the property bearing No.31-501-
75, Affidavit sworn before the Notary, photographs along
with CD, certified copy of the order passed on the
application filed under Order 39 Rule 1 and 2 of CPC in
O.S.No.71/2012, certified copy of plaint in
O.S.No.71/2012, written statement filed in
O.S.No.71/2012, original summons issued in
O.S.No.490/2021 and plaint in O.S.No.490/2021.
15. The gist of oral testimony of DW1 is only to the
extent of establishing before the Court that there was civil
dispute and the accused persons had the benefit of
temporary injunction in O.S.No.71/2012.
16. Subsequent thereto, learned Sessions Judge,
heard the parties in detail and on cumulative consideration
of the material on record, convicted the accused for the
offences as referred to supra and sentenced the accused
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persons as referred to supra. The accused no.4 died
during the pendency of sessions trial and therefore, case
against accused no.4 stood abated.
17. Being aggrieved by the same, accused nos.1 to
3 are before this Court in this appeal.
18. Sri Sathisha D.J., learned counsel for the
appellants reiterating the grounds urged in the appeal
memorandum vehemently contended that the incident as
is enunciated by the Prosecution did not occur at all and a
trivial incident has been blown out of proportion by the
complainant which has not been properly appreciated by
the Investigation Agency and the learned Sessions Judge
convicting the accused has resulted in miscarriage of
justice and sought for allowing the appeal.
19. He also contended that the accused persons
had the benefit of an order of injunction from the duly
constituted Civil Court in O.S.No.71/2012 and certified
copy of the said order is marked vide Exhibit D4 before the
trial Court which has not been properly considered by the
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learned Sessions Judge while passing the order of
conviction and sought for allowing the of appeal.
20. He also emphasized that the accused persons
did not commit any offence as is alleged against them and
in the altercation that took place, when the complainant
and her sons tried to violate the order of temporary
injunction, fell down on the ground and some injuries
might have been caused at that point of time which has
not been properly appreciated by the learned Sessions
Judge while passing the order of conviction resulting in the
miscarriage of justice and therefore, sought for allowing
the appeal.
21. Alternatively, Sri Sathisha also contended that
in the event of this Court upholding the order of
conviction, since the accused persons are not having any
criminal antecedents, leniency may be shown or benefit of
probation can be granted to the accused persons by
enhancing the fine amount reasonably and hence, sought
for allowing the appeal to that extent.
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22. Per contra, Sri Channappa Erappa, learned High
Court Government Pleader appearing on behalf of
respondent No.1-State supports the impugned judgment.
23. He pointed out that, if an order of injunction is
in favour of accused persons and same is violated, the
accused persons were required to approach the Civil Court
seeking an order against the complainant and her children
for violation of the order of injunction. Merely having an
order of injunction in their favour would not ipso
facto grant licence for the accused persons to assault the
complainant and her sons to assault complainant and her
children. Therefore, the order of conviction passed by the
learned Sessions Judge which is impugned in the present
appeal needs no interference by this Court and therefore,
sought for dismissal of the appeal.
24. Insofar as alternate submission is concerned,
Sri Channappa Erappa contended that the complainant and
her children have been assaulted by the accused persons
mercilessly in an unprovoked incident, especially when the
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complainant was standing in front of her house and
therefore, no leniency can be shown.
25. Further, it is contended that, if any leniency is
shown by this Court in this appeal, the same would
encourage the appellants and similarly placed perpetrators
of crime to commit such offences in future and therefore,
sought for dismissal of the appeal.
26. Having heard the parties in detail, perused the
material on record meticulously including the wound
certificates. On such perusal of material on record, the
following points would arise for consideration:-
(i) Whether the Prosecution has
successfully established all ingredients to
attract the offence under Sections 341, 323,
324 and 504 read with Section 34 of IPC?
(ii) Whether the appellants make out a
case that the impugned judgment is suffering
from legal infirmity and perversity and thus
calls for interference?
(iii) Whether the sentence is excessive?
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(iv) What order?
In re. point Nos.(i) and (ii):-
27. In the case on hand, the accused persons and
complainant are known to each other, as they are parties
to the civil proceedings in O.S.No.71/2012. Further, as
per the case of Prosecution, when the complainant was
standing outside her house on 02.04.2018 at about
9.30 p.m., accused persons restrained the complainant
and her son Lohith who was returning from work place of
their free movement and picked up a quarrel. At that
juncture, accused no.1 assaulted with a stone on the right
hand and back of the complainant and with the same
stone, he attacked Lohith on his right neck. The stone
which has been seized under mahazar has been marked
on behalf of Prosecution as M.O.1.
28. When another son of complainant, Bharath tried
to intervene and pacify the quarrel, other accused persons
assaulted him with hands. It is also alleged that the
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accused persons with an intention to outrage the modesty
of complainant, pulled her saree which had fallen on the
ground. During such incident, somebody intimated the
Police, and a Police Constable and Home Guard arrived at
the scene and the quarrel was stopped and the injured
persons were shifted to Government Hospital,
Channarayapatna.
29. The doctors who examined the injured persons
in the Hospital intimated the incident to the Police through
MLC report at Exhibit P9. Based on the MLC intimation as
at Exhibit P9, Police reached the Hospital and enquired the
complainant about the incident. The complainant has
narrated the incident with graphic details which was
reduced into writing. Based on the same, a crime came to
be registered. Since accused no.1 had assaulted Lohith
with stone on the neck region, the Police registered the
case for offence punishable under Section 307 of IPC as
well, apart from other offences. After thorough
investigation, Police have filed the chargesheet.
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30. As could be seen from the oral testimony of
complainant and her two sons alongwith oral testimony of
mahazar witnesses, whereunder, bloodstained shirt,
T-shirt and blouse of the injured witnesses which are
seized, have all supported the case of Prosecution in toto.
Suggestion made to the prosecution witnesses that a false
case has been foisted against accused persons, as the
complainant and her children had violated the order of
injunction passed in O.S.No.71/2012, has been denied.
Mere marking of certified copy of the orders and plaint and
other relevant documents pertaining to the pending civil
proceeding between accused and complainant would
not ipso facto make out a case for the accused persons to
take law into their own hands and assault the complainant
and her sons mercilessly. The incident having been
reported immediately to the jurisdictional police through
MLC report and based on the same, the Police having
registered the crime, there is no delay in lodging the
complaint, whereby the accused cannot maintain a stand
that false case has been foisted against them.
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31. All these factors have been viewed cumulatively
by the learned Sessions Judge while appreciating the case
of the parties. On cumulative consideration of the
material on record, learned Sessions Judge himself was of
the opinion that the ingredients required to attract offence
under Section 307 of IPC was not made out so. So also
for the offences under Section 354-B and 506 of IPC.
Therefore, the learned Trial Judge acquitted the accused
for offences under Sections 307, 354B and 506 of IPC.
32. State has not preferred any appeal against
acquittal of accused persons for the aforesaid offences, so
also the de-facto complainant or the victim. Therefore, as
far as the State and complainant/victim are concerned, the
order of acquittal for the offences punishable under
Sections 307, 354-B and 506 of IPC have become final.
33. However, since the incident has been
established by Prosecution by placing cogent and
convincing evidence on record, learned Sessions Judge by
thoroughly discussing the oral and documentary evidence
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placed on record and the probative value thereon, was of
the considered opinion that the incident having been
established by the Prosecution would attract the offence
punishable under Sections 341, 323, 324 and 504 read
with Section 34 of IPC and convicted the appellants-
accused for the aforesaid offences and sentenced as
supra.
34. On re-appreciation of the material evidence on
record, this Court is of the considered opinion that merely
having an order of injunction in their favour would not ipso
facto make out a case for the accused to pick up a quarrel
voluntarily with the complainant and her two sons.
Therefore, the ingredients to attract the offences
punishable under Sections 341, 323, 324 and 504 of IPC
has been made out by the prosecution by placing cogent
and convincing evidence.
35. Abusing the complainant and her sons in a filthy
language is deposed in detail by the injured witnesses and
so also the theory of false implication has been not
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established through oral evidence of DW1, who is accused
No.3.
36. Mere production of documents marked at
Exhibits D1 to D9 were not sufficient enough to consider
the plea of self-defence. Therefore, conviction of
appellants-accused for the aforesaid offences is just and
proper in the attendant facts and circumstances of the
case.
Therefore, point No.(i) is answered in the
affirmative and Point No.(ii) in the negative.
In re. Point No.(iii):-
37. Admittedly, there is a civil dispute between the
complainant and the accused persons. There is no
previous complaint even though complainant has stated
that there were regular quarrels between the complainant
and accused group.
38. In the absence of any criminal antecedents
placed on record, the accused persons are to be treated as
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first time offenders. Therefore, learned Sessions Judge
was bound to consider the question of granting probation.
While considering the decision on the order of sentence,
learned Trial Judge did not assign any reason as to why
the benefit under the Probation of Offenders Act, 1958, is
to be denied to the accused persons, as they have been
convicted for the first time.
39. It is settled principles of law and requires no
emphasis that role assigned to a Trial Judge while passing
an order of conviction is all together different from the role
assigned to the very same Judge while passing appropriate
sentence in a given case for the proved offences.
40. It is also settled principles of law that Courts
are required to bear in mind that every sinner has a future
and Courts are required to bear in mind that criminal
justice system would hate the crime and not the criminal.
41. Keeping these aspects of the matter in the
background when material on record is appreciated, since
the incident has occurred at the spur of moment and
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acquittal of accused persons for the offences punishable
under Sections 307, 354-B and 506 of IPC have become
final, this Court is of the considered opinion that enhancing
the fine amount in a sum of Rs.20,000/- (rupees twenty
thousand only) to each of the appellants for the offences
punishable under Sections 341, 323, 324 and 504 read
with Section 34 of IPC by setting aside the imprisonment
ordered by the learned Sessions Judge would meet the
ends of justice.
Accordingly, point No.(iii) is answered partly in the
affirmative.
In re. point No.(iv)
42. In view of the finding of this Court on point
Nos.(i) to (iii) as hereinabove, following order is passed:-
(a) Appeal is allowed in part;
(b) While maintaining conviction of accused
persons for the offences punishable under
Sections 341, 323, 324 and 504 read with
Section 34 of IPC, sentence of imprisonment
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ordered by the learned Trial Judge is hereby set
aside by enhancing the fine amount in a sum of
Rs.20,000/- (rupees twenty thousand only) for
each of the appellants payable on or before
10.02.2025, failing which, each of the
appellants shall undergo a simple imprisonment
for a period of nine months.
Sd/-
(V SRISHANANDA)
JUDGE
VGR
