Karnataka High Court
Tamanna vs The State Of Karnataka on 27 January, 2025
Author: V Srishananda
Bench: V Srishananda
-1-
NC: 2025:KHC:3731
CRL.A No. 1390 of 2012
C/W CRL.A No. 1340 of 2012
CRL.A No. 1345 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL APPEAL NO. 1390 OF 2012
C/W
CRIMINAL APPEAL NO. 1340 OF 2012
CRIMINAL APPEAL NO. 1345 OF 2012
IN CRL.A No. 1390/2012
BETWEEN:
TAMANNA,
S/O DEVANAND,
AGED ABOUT 24 YEARS,
CHRISTIAN,
MECHANIC,
R/AT CSI HOSPITAL COLONY,
CHIKKABALLAPURA.
...APPELLANT
(BY SRI. M. NARASAPPA, ADVOCATE FOR
Digitally
signed by SRI.P.V. JAINAPUR.,ADVOCATE)
MALATESH
KC AND:
Location: THE STATE OF KARNATAKA,
HIGH BY ITS STATE PUBLIC PROSECUTOR,
COURT OF
KARNATAKA THROUGH THE TOWN POLICE STATION,
CHIKKABALLAPURA.
REPRESENTED BY ITS STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING,
BANGALORE - 560 001.
...RESPONDENT
(BY SRI.CHANNAPPA ERAPPA, HCGP)
-2-
NC: 2025:KHC:3731
CRL.A No. 1390 of 2012
C/W CRL.A No. 1340 of 2012
CRL.A No. 1345 of 2012
THIS CRL.A. IS FILED U/S.374(2) CR.P.C BY PRAYING TO
SET ASIDE THE IMPUGNED JUDGMENT, ORDER OF SENTENCE
DATED 28.11.2012 PASSED BY THE DIST. & S.J.,
CHIKKABALLAPUR IN S.C.NO.2/2008 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 341,307 R/W
149 OF IPC.THE APPELLANT/ACCUSED IS SENTENCED TO
UNDERGO R.I. FOR 5 YEARS AND TO PAY A FINE OF RS.1,000/-
, IN DEFAULT TO PAY FINE, HE SHALL UNDERGO S.I. FOR 1
MONTH FOR THE OFFENCE P/U/S 307 R/W 149 OF IPC.
IN CRL.A NO. 1340/2012
BETWEEN:
SANNAULLA PASHA
S/O AHAMAD,
AGED ABOUT 23 YEARS,
R/AT NEAR KSRTC DEPOT,
CHIKKABALLAPUR - 562 101.
...APPELLANT
(BY SRI. A H BHAGAVAN, ADVOCATE)
AND:
STATE BY CHIKKABALLAPUR TOWN
POLICE STATION.
REPRESENTED 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 PRAYING
TO SET ASIDE THE JUDGMENT OF CONVICTION AND
-3-
NC: 2025:KHC:3731
CRL.A No. 1390 of 2012
C/W CRL.A No. 1340 of 2012
CRL.A No. 1345 of 2012
SENTENCE DATED 28.11.2012 PASSED BY THE DIST. &
SESSIONS JUDGE, CHICKBALLAPUR IN S.C.NO.2/2008 -
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
P/U/S 341,307 R/W 149 OF IPC.THE APPELLANT/ACCUSED
IS SENTENCED TO UNDERGO R.I. FOR 5 YEARS AND TO
PAY A FINE OF RS.1,000/-, IN DEFAULT TO PAY FINE, HE
SHALL UNDERGO S.I. FOR 1 MONTH FOR THE OFFENCE
P/U/S 307 R/W 149 OF IPC.
IN CRL.A NO. 1345/2012
BETWEEN:
1. GAJENDRA,
S/O NAGARAJ,
AGED ABOUT 24 YEARS,
RESIDING AT SUNNAKALLU STREET,
CHICKBALLAPUR & DIST.
PIN CODE - 562 101.
2. NAVEEN,
S/O SINAPPA,
AGED ABOUT 24 YEARS,
BEHIND T.B.,
CHIKBALLAPUR TALUK,
PIN CODE - 562 101.
...APPELLANTS
(BY SRI.S.A. SUDHINDRA, ADVOCATE FOR
SRI.L.NARASIMHA MURTHY, ADVOCATE)
AND:
STATE OF KARNATAKA,
THROUGH TOWN POLICE STATION,
CHICKBALLAPUR TALUK- 562 101.
...RESPONDENT
(BY SRI.CHANNAPPA ERAPPA, HCGP)
THIS CRL.A. IS FILED U/S.374(2) CR.P.C BY PRAYING
-4-
NC: 2025:KHC:3731
CRL.A No. 1390 of 2012
C/W CRL.A No. 1340 of 2012
CRL.A No. 1345 of 2012
TO SET ASIDE THE JUDGMENT OF CONVICTION AND
SENTENCE DATED 28.11.2012 PASSED BY THE DIST. &
SESSIONS JUDGE, CHICKBALLAPUR IN S.C.NO.2/2008 -
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
P/U/S 341,307 R/W 149 OF IPC.
THESE APPEALS, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL JUDGMENT
Heard Sri.P.V.Jainapur, Sri.A.H.Bhagavan,
Sri.S.A.Sudhindra for Sri.L.Narasimha Murthy, learned
counsels for the appellants and learned High Court Pleader
for the respondent/State.
2. Appellants are accused Nos.1, 2, 3 and 5. In
S.C.No.2/2008, on the file of the District and Sessions
Judge, Chikkaballapur, who have been convicted for the
offences punishable under Sections 341, 307 read with
Section 149 of Indian Penal Code (hereinafter referred to
as 'IPC' for short) and sentenced as under:
"1. The benefit of probation of offenders is not
extended to the accused.
NC: 2025:KHC:3731
2. Accused No.1 to 5 are hereby sentenced for
the offence punishable under Section 307 r/w.149 of
Indian Penal Code, to undergo Rigorous
imprisonment for 05 years and to pay a fine of
Rs.1,000/-, IDSI for one month.
3. Accused are further convicted of the offence
punishable under section 341 r/w.149 of Indian Penal
Code, are sentenced to under to Simple
Imprisonment for 01 month, and to pay fine of
Rs.1,000/-, IDSI for 01 month.
4. The above substantive sentence are ordered to
run concurrently.
5. The accused is entitled to have the benefit of
set-off, of the period of detention, if they have
undergone, in Judicial custody of this case, as
provided under section 428 of Code of Criminal
Procedure".
3. The appellants have challenged the validity of
the conviction judgment and order of sentence in these
appeals.
4. Brief facts of the case which are utmost
necessary for disposal of these appeals are as under:
4.1 A complaint came to be lodged with
Chikkaballapur Town Police on 16.02.2007, contending
NC: 2025:KHC:3731
that on 12.02.2007 at about 8.45 p.m., near a place
behind the Travelers Bungalow Chikkaballapur, PW-2
Somashekar being the son of the complainant, had gone
to recover the loan amount to the house of Nagaraj, he did
not find Nagaraj there and he was returning to town. At
that juncture, he met accused No.1, 15 feet away from the
house of Nagaraj. When he enquired accused No.1 about
the repayment of the loan amount, there was a quarrel
picked up by him, whereby he restrained him on the public
road and other accused persons joined there and all of
them formed an unlawful assembly and they made an
attempt take away the life of PW-2 and voluntarily caused
hurt with dangerous weapons like clubs by hitting on the
head and other body parts of PW-2 and caused bleeding
injuries. At that juncture, one Anand and Immamsab
intervened and pacified the quarrel and shifted PW-2 to
the hospital for treatment. Somashekar was given first aid
treatment and then shifted to NIMHANS hospital,
Bengaluru. After attending the injured in Bengaluru,
NC: 2025:KHC:3731
mother of the PW-2 came back to Chikkaballapur and
lodged the complaint on 16.02.2007.
4.2. Based on such complaint, Police registered a
case in Crime No.13/2007 for the offences punishable
under Section 341, 307 read with Section 149 of Indian
Penal Code (hereinafter referred to as 'IPC' for short) and
conducted the detailed investigation. During the course of
investigation all the accused persons were apprehended
and statements of the eye witnesses were recorded. Spot
mahazar was conducted and pursuant to the voluntary
statement given by the accused persons, recovery of the
weapons used in the incident had also taken place. After
completion of the investigation, charge-sheet came to be
filed.
5. Learned Trial Magistrate took cognizance of the
aforesaid offences and committed the matter to the
learned Sessions Judge.
6. Learned Sessions Judge secured the presence
of the accused and after compliance of Section 207 of
NC: 2025:KHC:3731
Code of Criminal Procedure (hereinafter referred to as
'Cr.P.C.' for short) charges for the offences under Sections
341, 307 read with Section 149 of IPC were framed.
Accused persons pleaded not guilty therefore, trial was
held.
7. In order to bring home the guilt of the accused
persons, 10 witnesses were examined on behalf of the
prosecution comprising of complainant, injured, eye
witnesses, spot and recovery mahazar witnesses, Doctor
who gave the wound certificate and investigation agency.
Prosecution placed on record 10 documentary evidences
which were executed and marked as Exs.P.1 to P.10
comprising of complaint, spot mahazar, seizure mahazar,
wound certificate, FIR and FSL report.
8. During the course of cross-examination, few
contradictions are elicited in the evidence of the
prosecution witnesses which were marked as Exs.D1 to
D3.
NC: 2025:KHC:3731
9. Material objects namely a shirt, pant and clubs
held by the accused persons were marked as M.Os.1 to 5.
10. On conclusion of recording of evidence of the on
behalf of the prosecution, learned Trial Judge recorded the
accused statement as is contemplated under Section 313
of Cr.P.C. All the accused persons have denied the
incriminating materials found against them, but did not
choose to place their version on record in the form of
written submissions as is contemplated under Section 313
(4) of the Cr.P.C. There was no defence evidence placed
on record on behalf of the accused.
11. Thereafter, learned Trial Judge heard the
parties in detail and on cumulative consideration of oral
and documentary evidence on record convicted all the
accused persons for the offences punishable under
Sections 307, 341 read with Section 149 of IPC and
sentence as referred to supra.
- 10 -
NC: 2025:KHC:3731
12. Being aggrieved by the same, accused Nos.1
and accused Nos.2, 3 and 5 have filed separate appeals.
13. Separate appeal filed by the accused No.4 came
to be dismissed as abated, on account of death of the
appellant/Sri.Rajesh.
14. Learned counsels representing the appellants in
each of these cases, reiterating the grounds that in the
appeal memorandum contended that material evidence on
record is not properly appreciated by the learned Trial
Judge while recording order of conviction for the offence
punishable under Section 307 of IPC.
15. They further contended that all ingredients
required to attract the offence under Section 307 of IPC is
not established by the prosecution and therefore, appeal
needs to be allowed.
16. They would also further contend that restraining
the free movement of the PW-2 was initially by accused
No.1, even according to the case of the prosecution.
Therefore conviction of the appellants for the offence
- 11 -
NC: 2025:KHC:3731
under Section 341 of IPC is impermissible. The learned
counsels for the appellants also emphasized the fact that
there is no proper material on record to prove the unlawful
assembly and even according to the case of the
prosecution, incident has occurred at the spur of the
moment. Therefore, the appellants cannot be convicted
with the aid of Section 149 of IPC and at the most, it is the
first accused who had picked up the quarrel, must be
punished and other appellants are to be acquitted.
17. Alternatively, Sri.Jainapur, Sri.A.H.Bhagvan and
Sri.S.A.Sudhindra, learned counsels for the appellants contend
that in the event, this Court upholding in the conviction
order, since the incident is of the year 2007, the custody
period already undergone by the appellants may be
treated as period of imprisonment by enhancing the fine
amount reasonably and a portion of the fine amount would
be paid as compensation to the PW-2 and sought for
allowing the appeal to that extent. They would further
contend that since there are no criminal antecedents,
- 12 -
NC: 2025:KHC:3731
confirming jail sentence would act as harsh, that too, at
this distance of time.
18. Per contra, Sri.Channappa Erappa, learned High
Government Pleader for the respondent supports the
impugned Judgement.
19. He would further contend that the M.Os.3 to 5
being the clubs, and appellants have chosen to assault
PW-2 with the help of M.Os.3 to 5 on the head, there are
sufficient materials to infer the intention of the appellants
in taking away the life of the PW-2 which would be
sufficient enough to maintain the order of conviction under
Section 307 of IPC and thus, sought for dismissal of the
appeal.
20. He pointed out that though initially it is accused
No.1 who restrained the free movement of PW-2 and
picked up the quarrel, all the other appellants have joined
with deadly weapons in their hands into the quarrel and
mercilessly attacked PW-2 resulting in, bleeding injuries.
He pointed out that but for the timely intervention of the
- 13 -
NC: 2025:KHC:3731
eye witnesses Anand and Immansab, who rescued PW-2
from the clutches of the appellants, the appellants would
have committed the murder of PW-2. Therefore, necessary
ingredients have been established by the prosecution by
placing cogent and convincing evidence on record and
thus, sought for dismissal of the appeal.
21. In respect of alternate submission,
Sri.Channappa Erappa, learned High Court Government
Pleader contends that if this Court shows mercy for people
like appellants, the same would encourage the similarly
placed perpetrators of the crime and sends a wrong
message to the society and thus, sought for dismissal of
the appeal in toto.
22. Having heard the parties in detail, this Court
perused the material on record meticulously. On such
perusal of the material on record, following points would
arise for consideration:
1) Whether the material evidence on record is
sufficient enough to maintain the conviction of the
- 14 -
NC: 2025:KHC:3731
appellants for the offences punishable under
Sections 307 and 341 of IPC r/w Section 149 of IPC?
2) Whether the appellants make out a case that
the impugned judgment is suffering from legal
infirmity and perversity and thus calls for
interference?
3) Whether the sentence is excessive and needs
modification?
4) What order?
REG.POINT NOS.1 AND 2:
23. In the case on hand, the incident has occurred
on 12.02.2007, at about 9.00 p.m., near Travelers
Bangalow of Chikkaballapur, stands established not only
from the complaint averments but also from the oral
testimony of PW-3/Ananda and PW-4 /Immamsab, though
they have not supported the case of the prosecution in
toto, in pacifying the quarrel and shifting the injured
person to the hospital.
24. It is settled principles of law and requires no
emphasis that a testimony of a hostile witness cannot be
- 15 -
NC: 2025:KHC:3731
thrown out in toto. On the contrary such portion of the
material evidence which lends support to the case of the
prosecution can very well be accepted from the testimony
of the hostile witness as well. As such, from their
evidences, the incident stood established.
25. Now coming to the question of the identity of
the appellants. PW-2/Somashekar specifically deposed
that when he had been to the house of Nagaraj for
demanding the repayment of the loan, he has noticed
Nagaraj was not in station; while returning from house of
the Nagaraj towards the Town, on the way he met accused
No.1. He demanded the loan amount from him. At that
juncture, quarrel has taken place and thereafter, accused
Nos.2 to 5 have joined the quarrel.
26. It is settled principles of law and requires no
emphasis that testimony of an injured eye witness shall be
kept at higher pedestal. More so, when PW-2 had no
reason to falsely implicate the remaining accused persons
by allowing the real culprits to escape away from the
- 16 -
NC: 2025:KHC:3731
rigors of law. In the background of such settled legal
principle, when the oral testimony of PW-2 is appreciated,
there is a specific mention as to the appellants being the
persons who assaulted PW-2 on the day of incident.
27. PW-3 and PW-4, no doubt did not support the
case of the prosecution in specifically deposing about the
overt acts said to have been committed by the appellants
and their consistence say is that they were inside the
house and when they heard loud hue and cry, they came
out and saw Somashekar. There were injuries on his
head, and he was lying on the road, and somebody shifted
him to hospital. The material evidence of those hostile
witnesses is to be taken into consideration only to the
extent of injuries found on to the head of the PW-2.
28. Doctors who examined PW-2. Sri.Diwakar, and
Sri.Prakash are examined as PW-7 and PW-9. The wound
certificate issued by the Doctor is marked at Ex.P.6. The
injuries noted therein are grievous in nature and material
- 17 -
NC: 2025:KHC:3731
on record would go to show that PW-2 was inpatient in
NIMHANS hospital, for a considerable period of time.
29. FSL report marked at Ex.P.10 would fortify the
oral testimony of PW-2, so also the recovery of M.Os.3 to
5 would sufficiently corroborate the oral testimony of PWs-
1 and 2.
30. As such, this Court has no hesitation
whatsoever in upholding the order of conviction of the
appellants for the offences under Sections 341, 307 r/w
149 of IPC, inasmuch as the deadly weapon has been used
in the incident and the body part that has been chosen by
the appellants to assault PW-2 is the vital part, viz., head.
Therefore, point No.1 is answered in the affirmative and
point No.2 in the negative.
REG.POINT NOS.3:
31. Learned counsels representing the appellants in
all these appeals in chorus submitted that the incident is a
very old incident and post incident there is no enmity
- 18 -
NC: 2025:KHC:3731
nurtured on either side. Therefore, taking note of the
same, custody period already undergone by the appellants
may be treated as period of imprisonment. More so, when
there are no criminal antecedents to the appellants herein.
They also submits that fine amount may be enhanced
reasonably and portion of the fine amount can be paid as
compensation to PW-2 as well.
32. Learned High Court Government pleader,
however opposed the said submission by contending that
such leniency can not be shown to the appellants.
33. Taking into consideration, the above rival
contentions, it is seen that there are no criminal
antecedents to the appellants. Further, post incident,
there is no disharmony between the appellants and the
PW-2.
34. In fact PW-2 who appeared before the Court
today, also submitted that if reasonable amount of
compensation is awarded, he has no objection in setting
aside the Jail sentence.
- 19 -
NC: 2025:KHC:3731
35. Though, in a matter of this nature that cannot
be any compromise, taking note of the fact that the
appellants and PW-2 are to continue in the same place and
to maintain harmony among them, in future, this Court is
of the considered opinion that if the custody period already
under gone by the appellants, if treated a period of
imprisonment by enhancing the fine amount in a sum of
Rs.75,000/- each and the same amount is paid as
compensation to the PW-2 ends of justice would be met in
the peculiar facts and circumstances of the case on hand.
Accordingly, point No.3 is answered partly in the
affirmative.
REG.POINT NO.4:
36. In view of the findings of this Court on point
Nos.1 to 3 as above, following:
ORDER
i) Crl.A.No.1390 of 2012, Crl.A.No.1340 of
2012, and Crl.A.No.1345 of 2012 are
allowed-in- part.
- 20 -
NC: 2025:KHC:3731
ii) While maintaining the conviction of the
appellants for the offences punishable under
Sections 307, 341 of IPC r/w Section 149 of
IPC, the custody period already undergone
by the appellants is treated a period of
sentence by enhancing the fine amount in a
sum of Rs.75,000/- (exclusive of fine amount
imposed by the Trial Court and paid by the
appellants) on or before 28.02.2025.
iii) Failure to pay enhanced fine amount,
appellants are directed to undergo
imprisonment as ordered by the Trial Judge
in the impugned judgment.
iv) After receipt of the fine amount sum of
Rs.3,00,000/- is ordered to be paid as
compensation to PW-2 under due
identification.
- 21 -
NC: 2025:KHC:3731
Office is directed to return the Trial Court records
along with copy of this order forthwith for issuing modified
conviction order.
Sd/-
(V SRISHANANDA)
JUDGE
BKN
