Karnataka High Court

Honnuraswamy vs The State Of Karnataka on 25 January, 2025

Author: V. Srishananda

Bench: V. Srishananda

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                                              CRL.A No. 1088 of 2012




                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 25TH DAY OF JANUARY, 2025

                                    BEFORE
                    THE HON'BLE MR JUSTICE V SRISHANANDA
                     CRIMINAL APPEAL NO. 1088 OF 2012 (C)
            BETWEEN:

            1.    HONNURASWAMY
                  S/O BORAIAH
                  AGED ABOUT 32 YEARS,
                  R/A SRINIVASANAYAKA EXTENSION,
                  MOLAKALMURU TOWN-577 535,
                  CHITRADURGA DISTRICT.

            2.    PRAKASH
                  S/O BORAIAH,
                  AGED ABOUT 27 YEARS,
                  R/A SRINIVASANAYAKA EXTENSION,
                  MOLAKALMURU TOWN-577 535,
                  CHTIRADURGA DISTRICT.


Digitally   3.    VIJAYA
signed by         S/O BORAIAH,
MALATESH
KC                AGED ABOUT 29 YEARS,
Location:         R/AT BHAGYAJYOTHI NAGAR,
HIGH              MOLAKALMURU TOWN-577 535,
COURT OF
KARNATAKA         CHITRADURGA DISTRICT.

            4.    KRISHNA @ KRISHNAMURTHY,
                  S/O BOMMAIAH,
                  AGED ABOUT 28 YEARS,
                  R/AT YEDDALA BOMMAIANAHATTI VILLAGE,
                  MOLAKALMURU TOWN-577 535,
                  CHITRADURGA DISTRICT.
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                                    CRL.A No. 1088 of 2012




5.   RAMAKRISHNA
     S/O MALLAIAH,
     AGED ABOUT 44 YEARS,
     R/A KOTE EXTENSION,
     MOLAKALMURU TOWN-577 535,
     CHITRADURGA DISTRICT.

6.   BHAGYAMMA
     W/O HONNURASWAMY,
     AGED ABOUT 29 YEARS,
     R/AT SRINIVASANAYAKA EXTENSION,
     MOLAKALMURU TOWN-577 535,
     CHITRADURGA DISTRICT.
                                               ...APPELLANTS
(BY SMT. SUMITHRA, ADVOCATE FOR A2;
    SRI. A.C. BALARAJ, ADVOCATE FOR A3 TO A6;
    APPEAL AGAINST APPELLANT NO.1 IS ABATED)

AND:

     THE STATE OF KARNATAKA
     REPRESENTED BY
     STATION HOUSE OFFICER,
     MOLAKALMNURU POLICE STATION,
     MOLAKALMURU-577 535,
     CHITRADURGA DISTRICT.
                                               ...RESPONDENT



       THIS CRL.A IS FILED U/S.374(2) OF CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT, ORDER OF CONVICTION AND
SENTENCE DATED 25/8/2012 PASSED BY THE PRL. DIST. &
SESSIONS    JUDGE,   CHITRADURGA   IN   S.C.   No.99/2011   -
CONVICTING THE APPELLANTS/ ACCUSED Nos.1 TO 6 FOR THE
OFFENCES P/U/S.144, 148, 452, 324, 354 R/W.149 OF IPC.
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                                     CRL.A No. 1088 of 2012




     THIS APPEAL, 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 Sri. A.C. Balaraj appearing

for appellants No.3 to 6 and Smt. B.M. Sumithra, learned

counsel for appellant No.2 and the learned High Court

Government Pleader.

2. Appellants are the convicts in S.C. No.99/2011

on the file of the Principal District and Sessions Judge,

Chitradurga for the offences punishable under Sections

144, 148, 324, 452, 354 read with Section 149 of the

Indian Penal Code and sentenced as under :

3. The facts in brief which are utmost necessary

for disposal of the case are as under :

Monakalmuru Police received a complaint that one

Nallaseena supplied clothes to appellant No.1 Honnura

Swamy (Accused No.1) for stitching and advanced a sum

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of Rs.8,000/-. As per the understanding, the stitched

clothes were required to be returned with time bound

manner as 1st accused has undertaken the job of work of

stitching the clothes. A girl by name Yaseena who is a

relative of the complainant was stitching the clothes at the

place where the 1st accused was carrying out job of

tailoring work and she had kept her own sewing machine

at the tailoring shop run by accused No.1. There was a

breach of terms of the contract between Nallaseena and

the 1st accused. Therefore, Nallaseena demanded return of

the clothes and advance money.

4. When the said demand was not met, Nallaseena

visited the house of the 1st accused and demanded return

of the clothes as well as the advance money. He also

complained to the wife of the 1st accused Bhagyamma

about the said aspect of the matter. When the demand of

Nallaseena was not met with, the sewing machines

installed in the tailoring centre were taken away by

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Nallaseena which included the sewing machine owned by

the relative of the complainant Ms. Yaseena.

5. Yaseena reported the incident to her relative

Sri. Khaja Hussain and told him to enquire the 1st accused

about Nallaseena taking away the sewing machine

belonging to Yaseena.

6. Complainant met the 1st accused two three

times and 2nd accused telephoned to the son of the

complainant on 02.12.2010 at about 2.30 p.m., and

threatened to take away the life if there is further pressure

on accused No.1 with regard to the loss of sewing machine

belonging to Yaseena.

7. Same day at about 7.30 p.m., when

complainant, his wife and children were watching the

television in their house, in pursuance of the telephone call

and previous demands, all the accused persons trespassed

into the house and dragged them out of their house and

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started assaulting indiscriminately with hands, clubs and

stones.

8. During the course of said brawl, daughter of the

complainant namely Umme Salma was also assaulted and

clothes worn by were torn of, resulting in a grave insult to

her. She got humiliated being unable to bear such a insult.

As such she went inside the house poured kerosene on her

and got herself immolated. She was shifted to the medical

care. Despite best treatment, she did not survive. A

complaint came to be registered by Monakalmuru Police in

this regard. Based on the complaint, a crime came to be

registered by Police for the offence punishable under

Sections 144, 323, 324, 354, 306, 506 read with Section

149 of Indian Penal Code. After thorough investigation,

police filed the charge sheet against appellants herein.

9. Learned Trial Magistrate Magistrate took

cognizance of the aforesaid offence and remmitted the

matter to the Sessions Court for trial. Learned Sessions

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Judge secured the presence of the appellants herein and

after compliance of Section 207 of the Code of Criminal

Procedure, framed the charges for the aforesaid offences.

Appellants pleaded not guilty. Therefore trial was held.

10. To bring home the guilt of the appellants,

prosecution in all examined 21 witnesses as PWs1 to 21

and marked 29 documents as Exs.P1 to P29, besides

marking 9 material objects as M.Os.1 to 9.

11. On conclusion of recording of evidence of the

prosecution, the learned Sessions Judge recorded the

accused statement as is contemplated under Section 313

of the Code of Criminal Procedure.

12. Appellants denied all the incriminating materials

found against them in the case of the prosecution and did

not place any written submission as is contemplated under

Section 313(4) of Code of Criminal Procedure, not placed

any defence evidence.

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13. Thereafter, the learned Trial Judge heard the

arguments of the parties in detail. On cumulative

consideration of oral and documentary evidence placed on

record, learned Sessions Judge convicted the appellants

and sentenced as referred supra.

14. Being aggrieved by the same, the appellants

are before this Court in this appeal.

15. During the course of the appeal, the 1st

appellant died, the 2nd appellant engaged an advocate and

made a request to have the services of an advocate from

the Legal Services Authority as he is unable to engage an

advocate of his choice. 2nd appellant is thus represented

by Smt. Sumithra.

16. Learned counsel Sri. A.C. Balaraj represents the

remaining appellants No.3 to 6.

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17. Smt. Sumithra and Sri. A.C. Balaraj vehemently

contended that the learned Sessions Judge failed to

appreciate the material evidence in proper perspective

resulting in miscarriage of justice and sought for allowing

the appeal.

18. They would further contend that the material

evidence on record was not sufficient to maintain the order

of conviction for the aforesaid offences especially when the

learned Sessions Judge has acquitted the appellants for

the offence punishable under Section 306 of the Indian

Penal Code.

19. They further contended that there cannot be

isolation of the material evidence only to acquit the

appellants for the offence under Section 306 of the IPC

and proceed to convict for the remaining offences thus

sought for allowing the appeal.

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20. Alternatively, they also contend that in the

event this Court upholding the order of conviction for the

aforesaid offences, taking note of the fact that appellant

No.1 who is the main culprit in the incident is no more, the

custody period already undergone by the appellants 2 to 6

may be treated as period of imprisonment for the

aforesaid offences by enhancing the fine amount

reasonably.

21. Per contra, Sri. Chennappa Erappa, learned

High Court Government Pleader supports the impugned

judgment. He would further contend that material on

record would go to show that there was job order placed

by Nallaseena with Accused No.1 and in that regard, a

sum of Rs.8,000/- was paid as advance amount. When 1st

Accused failed to return the clothes after stitching and also

did not return the advance amount received by him,

Nallaseena had gone to the house of the 1st accused and

intimated the wife the 1st accused Smt. Bhagyamma and

demanded the money and return of clothes. When the

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demand of Nallaseena was not complied, he came to the

work place of the 1st appellant and took away all the

materials found in the work place of the 1st appellant

which included a sewing machine belonging to Ms.

Yaseena, who was the relative of the complainant.

22. When the sewing machine owned by Yaseena

was also taken away by Nallaseena, complainant enquired

the appellant No.1 to make necessary arrangements to get

returned the sewing machine belonging to Yaseena. When

there was repeated demands, second accused telephoned

to the son of the complainant on 02.12.2010 at about 2.30

p.m., and threatened the complainant that if there is

further pressure exerted on him, he would take away the

life of the complainant. The same was not cared by the

complainant and on the same day at about 7.30 p.m., all

the appellants trespassed into the house of the

complainant and pulled out the members of the

complainant's family and started assaulting mercilessly. He

further contended that on the fateful day, when the

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daughter of the complainant namely Umme Salma being

the part of the members of the complainant's family who

has been pulled out, tried to resist the acts of the

appellants and at that juncture, clothes worn by Umme

Salma were torn of resulting in committing suicide by self

immolation.

23. Therefore, the prosecution is able to establish

all necessary ingredients to maintain the order of

conviction and thus sought for dismissal of the appeal.

24. He also pointed out that the State has not

chosen to challenge the Order of acquittal for the offence

punishable under Section 306 of the Indian Penal Code

and by that itself, the appellants cannot take advantage of

getting an order of acquittal in respect of the remaining

offences and thus sought for dismissal of the appeal.

25. Insofar as the alternate submission is

concerned, Sri. Chennappa Erappa contended that if the

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appellants are shown an mercy, the same would result in a

bad message conveyed to the Society and would

encourage similarly placed perpetrators of the crime and

thus sought for dismissal.

26. Having heard the parties in detail, this court

perused the material on record meticulously.

27. On such perusal of material on record, following

points would arise for consideration :

(i) Whether the material on record is sufficient enough to maintain the Order of conviction of the appellants for the offences punishable under Sections 144, 148, 452, 324, 354 R/W.149 of the Indian Penal Code?

(ii) Whether the appellants make out a case that the impugned judgment is suffering from legal infirmity and perversity and thus sought for interference?

(iii) Whether the sentence is excessive?

      (iv)    What Order?
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     28. Regarding Point Nos.1 and 2:

In the case on hand, loss of life of Umme Salma on

the faithful day i.e., 02.12.2010 in an brawl that took

place at 7.30 p.m., stands established. Umme Salma being

a part of the victim group, got insulted because of the

accused / appellants tearing away her clothes worn by her

and went inside the house and committed suicide by self

immolation. She was shifted to the medical care, but she

lost her life despite best treatment.

29. Pertinent to note that the complainant had a

relative by name Yaseena who was working in the tailoring

Centre established by the accused No.1.

30. Material on record sufficiently establish that

there was an order received by the 1st accused from

Nallaseena on job work basis and received a sum of

Rs.8,000/- as advance. Material on record would also

establish that order was not carried out by the 1st

appellant and there was a demand by Nallaseena in that

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regard. In fact, Nallaseena went to the house of the 1st

appellant and told his wife Smt. Bhagyamma about non

completion of the job work and demanded for money.

31. When all attempts made by Nallaseena failed to

recover the advance amount nor get the job get

completed, he took a retaliation attitude and visited the

tailoring centre of the 1st appellant and took away all the

sewing machines and other valuable articles. In such

taking away of the sewing machines, one sewing machine

belonging to Yaseena was also taken away by Nallaseena.

32. Yaseena reported the same to her relative i.e.,

Khaji Hussain (complainant). To help Yaseena,

complainant started demanding return of the sewing

machine from the custody of Nallaseena. The 1st accused

went on postponing the same. When repeated request was

not adhered, there was an ill-will developed between the

complainant and 1st accused.

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33. Material on record discloses that on 02.12.2010

at about 2.30 p.m., 2nd accused who is the brother of the

1st accused said to have telephoned the son of the

complainant on 02.12.2010 and threatened that if there is

further pressure they would take away the life of the

complainant. After said telephone call around 2.30 p.m.,

at about 7.30 p.m., all the appellants rushed to the house

of the complainant and picked up quarrel with the

complainant and his family members forming unlawful

assembly. They trespassed into the house of the

complainant and pulled out the members of the

complainant's family from their house and started

assaulting them mercilessly. The assault was with the

hands, clubs and stones.

34. In the process, the daughter of the complainant

namely Umme Salma got insulted because of tearing of

her clothes and she went inside the house and poured

kerosene on herself and lit the fire. Noticing the same, the

appellants left the place. Umme Salma was in ablaze

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condition and with the help of neighbours and others, fire

was extinguished and she was shifted to the medical care.

However, material on record in the form of oral testimony

and supportive documents would depict that Umme Salma

did not survive and she lost her life despite best

treatment. Postmortem report, Inquest Mahazar amply

establish that she died out of the burn injuries.

35. Incident was reported to the Monakalmuru

Police by the complainant in the form of a complaint.

Monakalmuru Police registered the case and later on

investigated the matter interalia apprehended few of the

appellants. Matter was investigated in detail and ultimately

charge sheet came to be filed for the aforesaid offences.

Prosecution witnesses consistently deposed about the

Order being placed by Nallaseena with appellant No.1,

order not being completed by appellant No.1, Nallaseena

taking away the sewing machines installed in the tailoring

centre of the 1st appellant which consisted one sewing

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machine belonging to the relative of the complainant by

name Yaseena.

36. The detailed cross-examination of the

prosecution witnesses did not yield any positive material

with regard to these aspects of the matter. However, the

suggestions made by the prosecution witnesses on behalf

of the appellants that the incident as is not portrayed by

the prosecution did not happen and appellants nowhere

responsible for the suicidal death of Umme Salma was

denied by the prosecution witnesses.

37. The oral and documentary evidence on record

was thus cumulatively considered by the learned Sessions

Judge while convicting the appellants for the aforesaid

offences and acquitting the appellant for the offence under

Section 306 of the Indian Penal Code, inasmuch as there

was no material on record which would abet Umme Salma

to commit suicide by self immolation.

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38. State did not chose to challenge the order of

acquittal of the appellants for the offence under Section

306 of the Indian Penal Code and therefore it has become

final.

39. This Court re-appreciated the factual aspects

and the legal aspects in the light of the grounds urged in

the appeal memorandum on behalf of the appellants.

Since the prosecution has invoked the offence under

Section 149 of the Indian Penal Code as well, which is held

to be proved inasmuch as there is a clear evidence on

record about the presence and participation of the

appellants on the spot, the argument put-forward on

behalf of the appellants that it is the individual act of

accused No.1 cannot be countenanced in law. Why other

appellants were present at the place of the incident on

02.12.2010 is a question that remains unanswered. In

fact, while recording the accused statement, all the

appellants have simply denied all the incriminating

circumstances and did not offer any explanation

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whatsoever as to their presence or participation in the

incident.

40. Admittedly there was an ill-will developed

between the complainant and Appellant No.1 in regard to

the sewing machine taken away by Nallaseena on account

of the default committed by the 1st appellant. There was

repeated demands made by the complainant to get back

the sewing machine belonging to Yaseena. When there

was number of demands acted as a pressure on the

appellant No.1 to return the sewing machine belonging to

Yaseena. In that regard, appellant No.2 being the brother

of appellant No.1, called son of the complainant on

02.12.2010 over telephone and gave him a life threat.

41. Pertinent to note that on the same day at about

7.30 p.m., the incident has occurred. Seized material

objects including the stones and clubs. Wound certificate

amply corroborates the oral testimony of the injured

witnesses. No explanation is forthcoming about the alleged

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false implication on behalf of the accused. Why would the

complainant and injured eye witnesses falsely implicate

the appellants by let going the real culprits is a question

again remains unanswered on behalf of the appellants.

42. All these factors when viewed cumulatively, the

oral testimony of the prosecution witnesses is sufficiently

corroborated by placing the necessary documentary

evidence in the form of seizure mahazar, wound certificate

besides marking the very material objects as referred to

supra.

43. Therefore, this Court even after re-appreciation

of material evidence on record does not find any infirmity

whatsoever much less serious legal infirmity in recording

the finding of the guilt on the part of the appellants.

44. It is settled principles of law and requires no

emphasis that an act committed by one of the members of

the unlawful assembly would bind all the members of the

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unlawful assembly. Therefore, the arguments put-forth on

behalf of the appellants in the light of the appeal grounds

that there is no material on record which would pin

pointedly show the individual overt acts cannot be

countenanced in law.

45. Taking note of the above factual aspects, this

Court is of the considered opinion that the material on

record would be sufficient enough to maintain the finding

of the guilt on the part of the appellants. In the absence of

contra-material placed on record on behalf of the

appellants, the impugned judgment cannot be termed as

perverse or no legal infirmities are pointed out by the

appellants.

46. On the contrary, the reasons assigned by the

learned Trial Judge while recording the guilt of the

appellants for the aforesaid offences, especially acquitting

the appellants for the offence punishable under Section

306 of the Indian Penal Code shows that the impugned

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judgment is logical and based on sound reasoning and

based on proper analysis of material evidence on record.

47. In view of the foregoing discussion, point No.1

is answered 'in the Affirmative' and point No.2 is

answered 'in the negative'.

48. Regarding Point No.3:

Having held point No.1 in the affirmative and point

No.2 in the negative, it is the task of this Court to find out

whether an alternative submission made on behalf of the

appellants need to be considered. Taking note of the fact

that the State has not preferred any appeal against the

acquittal of the appellants for the offence under Section

306 of the Indian Penal Code, appellant No.1 being dead,

accused Nos.2 to 6 being the first time offender, they are

entitled for an order of grant of probation.

49. However, since such a point was considered as

negative and negated by the learned Trial Judge, this

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Court is of the considered opinion that the custody period

already undergone by few of the appellants is treated as

period of imprisonment by enhancing the fine amount for

all the aforesaid offences in a sum of Rs.75,000/- to be

paid by accused Nos.2 to 6 collectively and entire

enhanced fine amount if paid as compensation to the

complainant who lost his young daughter in the incident

would meet the ends of justice. The entire fine amount is