Karnataka High Court
Sri H Giri @ Ha Girish vs The State Of Karnataka on 30 January, 2025
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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WP No. 30467 of 2024
C/W WP No. 1802 of 2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 30467 OF 2024 (GM-RES)
C/W
WRIT PETITION NO. 1802 OF 2025 (GM-RES)
IN WP No. 30467/2024
BETWEEN:
SRI H GIRI @ HA GIRISH
S/O APPANNA AGED ABOUT 41 YEARS,
COOLY, KONAGERI VILLAGE,
VIRAJPET TALUK, KODAGU-571219.
...PETITIONER
(BY SMT. LEELA P.,ADVOCATE)
AND:
Digitally
signed by 1. THE STATE OF KARNATAKA
VANAMALA BY SRIMANGALA POLICE,
N
Location:
VIRAJPET TALUK, KODAGU,
HIGH REP. BY SPP HIGH COURT OF KARNATAKA.
COURT OF
KARNATAKA BENGALURU-560001.
2. THE SUPERINTENDENT OF POLICE
CENTRAL PRISON, MYSURU-570002.
...RESPONDENTS
(BY SMT.RASHMI JADHAV., ADDL. SPP)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA READ WITH SECTION 482 OF CR.PC.
PRAYING TO SET ASIDE THE ORDER PASSED BY THE CIVIL
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WP No. 30467 of 2024
C/W WP No. 1802 of 2025
JUDGE AND JMFC, IN C.C.NO. 860/2008 DATED 02.07.2024 VIDE
ANNX-C WHICH DIRECTS THAT THE PETITIONER BE SENTENCED
TO AN ADDITIONAL SIX MONTHS OF IMPRISONMENT FOR NOT
HAVING PAID THE FINE AMOUNT; DIRECTION IN THE NATURE OF
MANDAMUS PERMITTING THE PETITIONER TO PAY THE FINE
AMOUNT AND MODIFY THE ADDITIONAL SENTENCE OF SIX
MONTHS OF SIMPLE IMPRISONMENT IN LIEU OF THE FINE PAID
BY THE PETITIONER.
IN W.P.No. NO. 1802/2025
BETWEEN:
SRI.H.PAPANNI
S/O NANJA,
AGED ABOUT 48 YEARS
COOLY, KONAGERI VILLAGE,
VIRAJPET TALUK, KODAGU-571219.
...PETITIONER
(BY SMT.LEELA P., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY SRIMANGALA POLICE,
VIRAJPET TALUK, KODAGU,
REP. BY SPP HIGH COURT OF
KARNATAKA. BENGALURU-560001.
2. THE SUPERINTENDENT OF POLICE
CENTRAL PRISON, MYSURU-570002.
...RESPONDENTS
(BY SMT.RASHMI JADHAV., ADDL. SPP)
THIS WP IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA READ WITH SECTION 482 OF
CRIMINAL PROCEDURE CODE PRAYING TO SETTING ASIDE
THE ORDER PASSED BY THE CIVIL JUDGE AND JMFC IN CC
NO. 860/2008 DATED 2.07.2024 VIDE ANNEXRUE-C WHICH
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WP No. 30467 of 2024
C/W WP No. 1802 of 2025
DIRECTS THAT THE PETITIONER BE SENTENCED TO AN ADDL
SIX MONTHS OF IMPRISONMENT FOR NOT HAVING PAID THE
FINE AMOUNT; PERMITTING THE PETITIONER TO PAY THE
FINE AMOUNT AND MODIFY THE ADDL SENTENCE OF 6
MONTHS OF SIMPLE IMPRISONMENT IN LIEU OF THE FINE
PAID BY THE PETITIONER.
THESE PETITIONS, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
ORAL ORDER
In these petitions, the petitioners have sought for the
following reliefs:
"In W.P.No.30467/2024:
a. Issue a writ, order, or direction in the nature of certiorari
setting aside the order passed by the Civil Judge and
JMFC, in C.C. NO. 860/2008 dated 02.07.2024 vide
Annexure-'C' which directs that the petitioner be
sentenced to an additional six months of imprisonment
for not having paid the fine amount.
b. Issue a writ, order, or direction in the nature of mandamus
permitting the petitioner to pay the fine amount and
modify the additional sentence of six months of simple
imprisonment in lieu of the fine paid by the petitioner.
In W.P.No.1802/2025:
a. Issue a writ, order, or direction in the nature of certiorari
setting aside the order passed by the Civil Judge and
JMFC, in C.C. No. 860/2008 dated 02.07.2024 vide
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Annexure-C which directs that the petitioner be
sentenced to an additional six months of imprisonment
for not having paid the fine amount.
b. Issue a writ, order, or direction in the nature of
mandamus permitting the Petitioner to pay the fine
amount and modify the additional sentence of six months
of simple imprisonment in lieu of the fine paid by the
petitioner."
2. Perused the material on record. It would indicate that
the petitioners in both the aforesaid petitions where Accused Nos.1
and 2/ Petitioner Nos.1 and 2 in Criminal Revision Petition
No.916/2023 which was disposed of by this Court vide Order dated
01.02.2023 held as under:
"The petitioners have challenged the judgment of
conviction dated 16.01.2009 passed by the Addl. Civil Judge
(Jr. Dvn.) and JMFC, Virajpet (henceforth referred to as 'Trial
Court' for short) in C.C.No.860/2008 convicting them for the
offences punishable under Sections 341, 324, 326 read with
Section 34 of IPC and sentencing them to undergo rigorous
imprisonment for a period of six months for the offence
punishable under Section 341 read with Section 34 of IPC and
to undergo rigorous imprisonment for a period of one year for
the offence punishable under Section 324 read with Section 34
of IPC and to undergo rigorous imprisonment for a period of two
years for the offence punishable under Section 326 read with
Section 34 of IPC and they were sentenced to pay fine of
Rs.2,000/- each as compensation. The petitioners have also
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challenged the judgment dated 08.11.2013 passed by the II
Additional District and Sessions Judge, Kodagu Madikeri
(sitting at Virajpet) (henceforth referred to as 'Appellate Court'
for short) in Crl.A.No.10/2009 by which, the judgment of
conviction passed by the Trial Court was upheld in so far as
offences punishable under Sections 324, 326 read with Section
34 of IPC.
2. The parties shall henceforth be referred to as they were
arraigned before the Trial Court. The petitioners herein were
the accused.
3. The case of the prosecution is that CW.1 lodged a
written information on 13.02.2008 that he was working at the
Coffee Estate of Kiran of Konangeri village and on 12.02.2008,
he was returning to his house after watering the plants in the
Estate. At about 7.30 p.m., the accused persons waylaid him
and enquired why he disclosed that they committed theft of
coffee beans to the villagers of Hudikeri. Accused No.1 took out
a sickle and caused cut injury on his left hand, while accused
No.2 took out a sickle and caused injury on the right shoulder,
while accused No.3 held him. He claimed that he screamed
out and ran away towards his house, but the accused followed
him and threatened that they would kill him with the same
sickles, if he was caught again. He claimed that they took away
the sickles. He claimed that his father, mother and his wife
shifted him to the hospital in an unknown vehicle. The
statement of CW.1 was recorded in the hospital on 13.02.2008
at 11.30 a.m. The police registered Crime No.12/2008 for the
offences punishable under Sections 341, 324, 506(ii) read with
Section 34 of IPC. The further statement of CW.1 was
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recorded on 25.02.2008 stating that on the day of assault, the
father of CW.1 had witnessed the incident as the street was lit
up. He also stated that the accused threatened to kill him in
front of his mother, wife and his father.
4. The jurisdictional police took up the investigation and
recorded the statement of CW.2, the father of CW.1, CW.3, the
wife of CW.1, CW.4, the mother of CW.1. A mahazar of the
spot was conducted in the presence of CW.5 and CW.6. The
objects used for the crime was seized in the presence of CW.7
and CW.8. The statement of the Doctor (CW.9), who treated
CW.1 was recorded. CW.10 was the Head Constable, who
recorded the statement of CW.1 at the hospital, while CW.11
was the Head Constable, who registered Crime No.12/2008,
while CW.12 was the investigating officer, who submitted a
charge-sheet for the offences punishable under Sections 341,
324, 326, 506(ii) read with Section 34 of IPC.
5. The Trial Court took cognizance of the offences
punishable under Section 341, 324, 326 and 506 of IPC and
secured the presence of the accused, who were released on
bail. The charge framed against the accused under Sections
341, 324, 326, 506 of IPC was read over to them. The accused
pleaded not guilty and claimed to be tried. CW.1, CW.2 and
CW.3 were examined as PW.1, PW.2 and PW.3, while CW.5,
CW.7 and CW.8 were examined as PW.4, PW.5 and PW.6 and
CW.11, CW.9 and CW.10 were examined as PW.7, PW.8 and
PW.9. They also marked Exs.P1 to P7 and marked the objects
used for the crime as MO.1 and MO.2.
6. Amongst the prosecution witnesses, PW.1 supported the
prosecution, while PW.2 partly turned hostile since he failed to
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identify one of the objects used for the crime and he deposed
that he signed the mahazar at Ex.P3 in the hospital though the
mahazar was drawn at the spot of the crime. PW.3 supported
the prosecution, but in her cross-examination, her statement
was marked as Ex.D1 in view of a contradiction. PW.4
supported the prosecution and stated that the mahazar was
drawn at the spot of the crime and he identified the signature on
the spot mahazar. PW.5 was the witness to the seizure
mahazar, who turned hostile. PW.6 identified his signatures on
MO.1 and MO.2, but he turned hostile. PW.8, the Medical
Officer, who treated CW.1, stated that CW.1 had suffered cut
wounds of 1 inch x ½ inch on the right shoulder and another cut
injury of 2 inch x ½ inch on the right mid shoulder and another
cut injury measuring 5 inch x ½ inch on the lower right shoulder,
a cut injury measuring 6 inch x ½ inch on the dorsal side of the
right hand, cut injury measuring 10 inch x ½ inch on the right
hand and a cut injury measuring 5 inch x ½ inch on the right
hand. She deposed that the injuries at Sl.Nos.3, 4 and 6 were
grievous in nature, while the other injuries were simple in
nature. In her cross-examination, she deposed that CW.1 had
suffered one cut injury on the left hand. She supported the case
of the prosecution.
7. Based on these oral and documentary evidence, the
Trial Court held that the prosecution had proved the guilt of the
accused beyond doubt and hence, convicted them for the
offences punishable under Sections 341, 324, 326 read with
Section 34 of IPC and acquitted them for the offence
punishable under Section 506 read with Section 34 of IPC. All
of them were sentenced to undergo six months rigorous
imprisonment for the offence punishable under Section 341
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read with Section 34 of IPC and one year rigorous
imprisonment for the offence punishable under Section 324
read with Section 34 of IPC and two years rigorous
imprisonment for the offence punishable under Section 326
read with Section 34 of IPC and to pay fine of Rs.2,000/- each
as compensation to PW.1.
8. Being aggrieved by the said judgment of conviction, the
accused filed Crl.A.No.10/2009 before the Appellate Court.
The Appellate Court after re-appreciating the evidence on
record, acquitted the accused for the offence punishable under
Section 341 read with Section 34 of IPC and their conviction for
the offences punishable under Sections 324, 326 read with
Section 34 of IPC was upheld.
9. Being aggrieved by the aforesaid judgments of both the
Courts, the present revision petition is filed.
10. The learned counsel for the petitioners/accused
submitted that both the Courts failed to consider that there was
a contradiction in the evidence of PW.1 and PW.8 in as much
as PW.1 claimed that he was assaulted on left thumb, but there
were no injuries found in the wound certificate at Ex.P6.
Further, he submitted that the prosecution failed to establish the
common intention, which is a sine quo non under Section 34 of
IPC and that the common intention cannot be inferred or
assumed or left to conjectures. He submitted that in the
absence of any common intention, the Courts committed an
error in convicting the petitioners/accused under Section 34 of
IPC. He also submitted that the prosecution was not able to
point out any motive to commit the alleged crime by the
accused. He further submitted that the evidence of PW.1,
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PW.2 and PW.3 had to be examined carefully as they were
interested witnesses. He submitted that PW.2 failed to identify
one of the objects used for the alleged crime and there was a
contradiction in her statement recorded before the police, which
created a doubt about the way in which the crime was allegedly
committed by the accused. Further, he submitted that the
injuries on PW.1 were not life threatening and there were no
injuries found on other parts of the body and therefore, an
offence under Section 326 of IPC was not made out.
11. Per contra, the learned High Court Government Pleader
for the respondent/State submitted that PW.1 and PW.3
identified the objects used for the crime, which were two sickles
and therefore, the accused have committed an offence
punishable under Section 326 of IPC. He further submitted that
the injuries on PW.1 itself established the gory nature of the
crime committed by the accused, which justified their conviction
under Sections 324 and 326 read with Section 34 of IPC. He
therefore, submitted that the judgment of conviction passed by
the Trial Court and the Appellate Court convicting the accused
for the offences punishable under Sections 324, 326 read with
Section 34 of IPC be confirmed.
12. I have considered the submissions made by the learned
counsel for the petitioners/accused as well as the learned High
Court Government Pleader for the respondent/State. I have
also perused the records of the Trial Court, its judgment as well
as the judgment of the Appellate Court.
13. The evidence on record sufficiently established that the
accused were involved in an offence when they assaulted PW.1
with MO.1 and MO.2 - sickles and caused grievous injuries on
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the right hand. The evidence of the Doctor (PW.8), who treated
PW.1 also establishes that some of the injuries were grievous
in nature. Though the seizure of MO.1 and MO.2 could not be
proved through PW.5 and PW.6 yet, since MO.1 and MO..2
were identified by PW.1 and PW.3 and in the absence of any
evidence to establish that the injuries were suffered by PW.1
due to any other cause, the Trial Court and the Appellate Court
were justified in holding that the accused were guilty of the
offences. However, what needs to be considered is that the
nature of injuries found on PW.1 did not constitute an offence
under Section 326 of IPC as the injuries were not likely to
cause death. The injuries were in the nature of hurt as defined
under Section 319 of IPC and therefore, the accused were
liable to be punished for the offence punishable under Section
324 of IPC as PW.1 did not cause any grave and sudden
provocation and therefore, did not fall within the exception
under Section 334 of IPC. In that view of the matter, the
impugned judgments passed by the Trial Court as well as the
Appellate Court deserve to be set aside in so far as the
judgment of conviction for the offence punishable under Section
326 read with Section 34 of IPC and the judgment of the Trial
Court and the sentence passed by it in respect of the offence
under Section 324 read with Section 34 of IPC deserves to be
upheld.
14. Hence, this revision petition is allowed in part. The
judgment of conviction dated 16.01.2009 passed by the Addl.
Civil Judge (Jr. Dvn.) and JMFC, Virajpet in C.C.No.860/2008
as well as the judgment dated 08.11.2013 passed by the II
Addl. District and Sessions Judge, Kodagu, Madikeri sitting at
Virajpet in Crl.A.No.10/2009 are set aside in so far as they
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relate to convicting the accused/petitioners herein for the
offence punishable under Section 326 read with Section 34 of
IPC. The petitioners/accused are acquitted of the offence
punishable under Section 326 of IPC.
15. However, the judgment passed by the Addl. Civil Judge
(Jr. Dvn.) and JMFC, Virajpet dated 16.01.2009 and order of
sentence dated 17.01.2009 in C.C.No.860/2008 in so far as it
relates to the conviction of the accused/petitioners herein for
the offence punishable under Section 324 read with Section 34
of IPC is upheld. The petitioners/accused are sentenced to
undergo simple imprisonment for a period of one year for the
offence punishable under Section 324 read with Section 34 of
IPC and to pay fine of Rs.25,000/-, which shall be paid to the
victim (PW.1) as compensation, within a period of six weeks
from today, failing which, the petitioners/accused shall undergo
simple imprisonment for a period of six months.
The petitioners/accused are entitled for set off of the
period of imprisonment if they have already undergone.
The Registry is directed to return the Trial Court as well
as the Appellate Court records forthwith."
3. As can be seen from the aforesaid order passed by
this Court, the petitioner Nos.1 to 3 including the petitioners in the
present petitions who are petitioner Nos.1 and 2 in the said order
were directed to undergo simple imprisonment for a period of one
year and to pay fine of Rs.25,000/- failing which they would have to
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undergo simple imprisonment for additional six months. Out of total
sum of Rs.25,000/-, the petitioners in the present petitions have
paid Rs.8,333/- each on 16.07.2024 as can be seen from the
receipt produced along with the petitions. In addition thereto, the
learned counsel for the petitioners in the present petitions submits
that they are ready to pay balance additional sum of Rs.8,333/-
before the learned Magistrate within a period of four weeks from
today and the impugned order directing them to undergo simple
imprisonment of additional six months for default for having paid
the amount deserves to be set aside.
4. The submission is placed on record. Hence, the
following:
ORDER
[a] Both the petitions are hereby allowed.
[b] The impugned orders dated 02.07.2024 in C.C.
No.860/2008 [Annexure-C in both the petitions] on the
file of the Civil Judge and JMFC, Ponnampet, are
hereby set aside subject to the condition that the
petitioners together pay total sum of Rs.8,333/- before
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the learned Magistrate within a period of four weeks
from today.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
AN/-
