Karnataka High Court
Sri Annappa Bhandary vs The State Of Karnataka on 21 March, 2025
-1-
NC: 2025:KHC:12027-DB
CRL.A No. 1891 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU R
DATED THIS THE 21ST DAY OF MARCH, 2025
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE K. V. ARAVIND
CRIMINAL APPEAL NO. 1891 OF 2019
Between:
Sri Annappa Bhandary
Aged about 45 years
S/o Sheena Bhandary
R/at Handerakeri
Behind Sri Kundeshwara Temple
Kundapura Taluk
Udupi District Pin - 573220.
...Appellant
(By Sri D.Nagaraja Reddy, Advocate)
And:
Digitally signed
by VEERENDRA
KUMAR K M The State of Karnataka
Location: HIGH Through Circle Inspector of Police
COURT OF Kundapur Circle,
KARNATAKA Represented by The State Public Prosecutor
High Court Buildings, Bengaluru - 560001.
...Respondent
(By Smt. R.Sowmya, HCGP)
This Criminal Appeal is filed u/s 374(2) of Cr.P.C. praying
to set aside the judgment of conviction dated 22.06.2019 and
order of sentence dated 28.06.2019 passed by the Additional
District and Sessions Judge, Udupi (sitting at Kundapura),
Kundapura, in S.C.No.29/2018 - convicting the appellant/
accused for the offence p/u/s 448 and 302 of IPC.
-2-
NC: 2025:KHC:12027-DB
CRL.A No. 1891 of 2019
Date on which the appeal was
27.02.2025
reserved for judgment
Date on which the judgment
21.03.2025
was pronounced
This Criminal Appeal, having been heard & reserved,
coming on for pronouncement this day, judgment was
delivered therein as under:
CORAM: HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
and
HON'BLE MR JUSTICE K. V. ARAVIND
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR)
This appeal is against the judgment of the
Sessions Judge, Udupi (sitting at Kundapura) in
S.C.No.29/2018, convicting the accused for the
offences punishable under Sections 448 and 302 of
IPC. Consequent to this conviction, he was
sentenced to life imprisonment and fine of
Rs.40,000/- for the offence under Section 302 of
IPC and simple imprisonment for one year for the
offence under Section 448 of IPC.
NC: 2025:KHC:12027-DB
2. The prosecution case is like this:
The name of the deceased is Vijaya Bhandary,
the elder sister of the accused. The accused was
running a salon, but he was irregularly attending
the shop being a wayward. He had the habit of
pestering his sisters for money and demanding
them to attend to his household work as he was
living separately. On 22.07.2018 about 08.30pm
accused entered the house of Vijaya Bhandary,
started scolding her and demanded for money, and
in that course he inflicted injury on the left
shoulder and right side of the back with a knife.
In order to escape from him she ran out of the
house and fell down. This incident was seen by
Vimala and when she shouted loudly the accused
ran away from that place. The injured was taken
to Kundapura Government Hospital for treatment.
On the advice of the doctor at Kundapura hospital
she was taken to KMC Hospital, Manipal. While
NC: 2025:KHC:12027-DB
taking treatment at KMC Hospital she gave a
statement before the police based on which FIR
was registered in the first instance for the offences
punishable under Sections 448, 504, 324 and 506
of IPC. The injured died on 28.07.2018.
Thereafter Section 302 of IPC was invoked.
3. The Sessions Judge charged the accused
for the offences punishable under Sections 302,
504, 506 and 448 of IPC, but recorded conviction
only for the offences punishable under Sections
448 and 302 of IPC after appreciating the oral
evidence of 17 witnesses and, the exhibited
documents and material objects.
4. PW1-Sushseela and PW2-Kamalaksha, the
sister and nephew of deceased Vijaya Bhandary
respectively are the eye witnesses to the incident.
PW3-Sudheer is the son of PW1, he was not an eye
witness; he went to KMC Hospital after coming to
know of the incident from his mother. The learned
NC: 2025:KHC:12027-DB
Sessions Judge accepted the oral testimonies of
PW1 and PW2 as believable as regards being eye
witnesses to the incident.
5. Sri D.Nagaraja Reddy, learned counsel for
the appellant, argued that the Sessions Judge
should not have accepted the testimonies of PW1
and PW2 as they were planted witnesses. In
Ex.P6, the statement given by the deceased before
the police, she took the name of Vimala to be an
eye witness but the prosecution did not examine
her. This was fatal to the prosecution.
6. It is true that Vimala was not examined
though her name was taken by the deceased in her
statement, Ex.P6. But it is difficult to concur with
the argument of Sri D.Nagaraja Reddy that PW1
and PW2 were not eye witnesses. Giving a reading
to testimonies of these two witnesses, it is found
that they were eye witnesses. PW1 being another
sister of the accused stated that the accused being
NC: 2025:KHC:12027-DB
quarrelsome and drunkard, used to altercate in the
house for money. Once, about 20 years ago the
accused had inflicted injury to their father with an
iron rod while quarreling in relation to a property
dispute. As regards the incident in question, she
stated that on that day around 8.00pm, when she
was in her house she heard a cry from the house
of her sister Vijaya Bhandary, which was situate
very near to her house. Immediately she went
there and saw her sister having sustained injury on
the left side of her neck and shoulder on account
of inflictions caused by the accused. She stated
that her sister started running out of the house
and fell down. She gave information to her son
immediately over the phone. After the arrival of
her son, Vijaya Bhandary was shifted to Kundapura
government hospital. On the advice of doctor
there, Vijaya Bhandary was taken to KMC hospital,
Manipal. She was able to speak for about three
days during which time the police came and
NC: 2025:KHC:12027-DB
recorded the statement of her sister. She showed
the scene of occurrence to the police to draw the
panchanama. She also gave her statement before
the Magistrate under Section 164 of Cr.P.C., as per
Ex.P5.
7. The evidence of PW2 is also to the effect
that he heard a cry from the house of his aunt i.e.,
Vijaya Bhandary around 8.00pm on 22.07.2018.
When he went to that place he saw his aunt
coming out of the house by keeping hand on her
bleeding neck. At that time he saw the accused
chasing Vijaya Bhandary with a knife in his hand
and the latter falling down while running. He also
stated that he saw PW1 and Vimala being there at
that time. When he enquired PW1, he came to
know that the accused inflicted injuries to Vijaya
Bhandary with a knife while quarrelling with her
for money.
NC: 2025:KHC:12027-DB
8. In the cross examination of these two
witnesses, an effort is made to establish that they
could not have seen the accused inflicting injuries
to Vijaya Bhandary as they were in their respective
houses at the time when the incident occurred and
by the time they came to that place nobody was
there. But the witnesses have refuted the
suggestions that they did not see the accused.
Even though they admitted the suggestion that
they were in their respective houses when they
heard the cry of Vijaya Bhandary, they also made
it very clear that by the time they came to the
spot they saw the accused. In fact PW1 has stated
in the cross examination that accused inflicted
injuries to Vijaya Bhandary after she went there.
Another effort is also made to falsify their
evidence by giving suggestions that they did not
like the accused because of enmity between them.
To this suggestion PW1 answered that she did not
have any sort of enmity and that she was offering
NC: 2025:KHC:12027-DB
coffee or tea to him because of love and affection.
PW2 also did not admit suggestion that there was
enmity. The conclusion is that these two
witnesses have not been discredited in the cross
examination. Even if we hold that PW2 was not an
eye witness, his testimony assumes relevancy at
least to the extent that he saw the accused
running away from the spot with a knife in his
hand. So there are no reasons to discard the
evidence of PW1 and PW2.
9. Above all Ex.P6 is the statement of Vijaya
Bhandary herself. It is nothing but a dying
declaration implicating the accused. Since this
statement was recorded in the hospital, the
prosecution must establish the circumstance that
she was quite fit to make a statement. This proof
is made available by the prosecution.
10. PW8-Dr. Chandrashekar was the first
doctor who examined Vijaya Bhandary at the
- 10 -
NC: 2025:KHC:12027-DB
Government Hospital, Kundapura, soon after the
incident. He has given evidence that when he
examined Vijaya Bhandary at 10.30pm on
22.07.2018, she had consciousness and was in a
condition to make statement. However her
statement was not recorded at Kundapura hospital.
She was shifted to KMC Hospital, Manipal.
11. PW12-Smt. Jyothi M, a woman head
constable recorded the statement of Vijaya
Bhandary on 23.07.2018. Her evidence indicates
that the Assistant Sub-Inspector of police
contacted the doctor at KMC Hospital, Manipal to
ascertain whether Vijaya Bhandary was able to
speak and give statement. After obtaining the
permission from the doctor she went inside the
intensive care unit (ICU) in the hospital along with
ASI, spoke to Vijaya Bhandary and reduced her
statement to writing as per Ex.P6. PW12 stated
that when Vijaya Bhandary gave statement before
- 11 -
NC: 2025:KHC:12027-DB
her, she inculpated her brother i.e., the accused to
be responsible for her sustaining two injuries.
PW12 has also stated that Vijaya Bhandary put her
signature on Ex.P6 and at that time, PW3-Sudheer
was also present and his signature was also taken
on the statement. Only relevant question put to
PW12 in the cross examination is that Ex.P6 does
not contain certification by the doctor about fitness
of Vijaya Bhandary to make a statement. She said
that the doctor orally permitted her to record the
statement. It is true that Ex.P6 does not contain
certification of the doctor. For this reason alone
evidence of PW12 cannot be discarded because
PW3 has corroborated the testimony of PW12 by
giving evidence that on 23.07.2018 at 03.00pm he
was very much present in the hospital attending on
Vijaya Bhandary who was his aunt, and at that
time the police came to hospital. A lady police
constable obtained permission of the doctor to
record the statement of his aunt who was able to
- 12 -
NC: 2025:KHC:12027-DB
speak and then recorded her aunt's statement. He
also stated that Vijaya Bhandary took the name of
the accused for the injuries suffered by her and
put her signature on the statement. The evidence
of PW11, a doctor at KMC Hospital may be
incidentally referred to here as he examined Vijaya
Bhandary on 24.07.2018 and 25.07.2018. It is his
clear statement that she was able to speak till she
suffered a heart attack at 04.20pm on 25.07.2018.
That means on the day when she made statement
as per Ex.P6 she was fit enough to give statement.
Therefore Ex.P6 is a reliable document which
inculpates the accused. The ultimate conclusion to
be drawn is that the testimonies of PW1 and PW2
supported by Ex.P6 are sufficient enough to hold
that it was the accused who inflicted injuries to
Vijaya Bhandary.
12. Although the incident is proved, the
begging question is, 'Whether the findings of the
- 13 -
NC: 2025:KHC:12027-DB
trial court that an offence punishable under
Section 302 of IPC has been proved', can be
sustained. The specific findings of the trial court
are that the prosecution has been able to establish
that Vijaya Bhandary sustained grievous injuries
on her neck owing to assault by the accused with a
knife. Though the death occurred due to heart
attack, according to the opinion given by the
doctor who conducted post mortem examination
heart attack was attributable to the grievous injury
suffered by Vijaya Bhandary. And it cannot be
said that cardiac arrest was not due to the injury
and there is no ambiguity of any kind in it.
Attacking this finding Sri Nagaraja Reddy argued
that at the initial stage FIR was registered for the
offence under Section 324 of IPC, and after the
death occurred Section 302 of IPC was invoked. It
is no doubt true that according to the opinions
given by the doctors Vijaya Bhandary suffered two
heart attacks one on 25.07.2018 and the other on
- 14 -
NC: 2025:KHC:12027-DB
28.07.2018. The evidence of PW10 does not
indicate any treatment being given to heart related
diseases. Another doctor PW11 has very well
stated in the cross examination that it was not
possible for him to give a definite opinion that the
cardiac arrest was on account of the injury
sustained by Vijaya Bhandary. Quite contrary to
the evidence of PW10 and PW11, PW17 the doctor
who conducted post mortem examination stated
that Vijaya Bhandary died due to assault on her.
And the investigating officer has admitted that he
did not come to know about the heart attack.
Therefore the cause for death is not clear. In the
wound certificate Ex.P15, two injuries one on the
neck and the other on the right scapular region are
noted. The depth of the first injury is not
mentioned, that means the weapon did not
penetrate deep into body cutting the blood vessels.
There was no chance of occurrence of death due to
these injuries. If for any reason involvement of
- 15 -
NC: 2025:KHC:12027-DB
accused in the crime is acceptable, at the best he
could be convicted under Section 324 of IPC, and
not the offence under Section 302 of IPC. This is
how Sri Nagaraja Reddy argued.
13. Smt. R.Sowmya, learned HCGP, refuted
the argument of Sri Nagaraja Reddy by submitting
that when the three doctors have consistently
deposed that the cardiac arrest was on account of
the injuries, there is a direct nexus between the
injury and the death and hence conviction for the
offence under Section 302 of IPC is justifiable.
14. The oral and documentary evidence made
available for the cause of death is in this way.
Ex.P15 is a wound certificate issued by the General
Hospital, Kundapura where Vijaya Bhandary was
taken for treatment soon after the occurrence of
the incident on 22.07.2018. The doctor i.e., PW18
noted the following two injuries.
- 16 -
NC: 2025:KHC:12027-DB
i. Incised wound 4.5 x 1 cm on the lower
part of the neck on the left side. Fresh
bleeding is present. Blood clot
present. Depth of the wound could not
be made out.
ii. Incised wound 4 x 1.5 cm x muscle
deep on the supra scapular region of
the chest on right side. Fresh bleeding
and blood clot seen.
15. It is relevant to mention here that PW18
noticed the pulse rate being 114 per minute and
blood pressure 140/90.
16. In Ex.P17, the death summary issued by
KMC Hospital, Manipal, it is noted that there was
undisplaced fracture of little 1/3 r d of left clavicle
and CT of brain showed diffused subarachnoid
hemorrhage. It is also written that on 25.07.2018
the patient had a cardiac arrest, CPR was started
and revived in one cycle. Again there was a
cardiac arrest on 28.07.2018, resuscitation was
attempted, not able to revive hence declared dead
- 17 -
NC: 2025:KHC:12027-DB
at 04.00pm. Ex.P21 is the post mortem report in
which final opinion for the cause of death is
written as deceased died due to complications of
multiple sharp force injuries to the neck and
shoulder consistent with the history.
17. PW11 was the first doctor who examined
Vijaya Bhandary on 24.07.2018 and he stated that
the patient suffered heart attack at 04.20pm on
25.07.2018 and that was due to assault on her.
PW9, another doctor at KMC hospital examined
Vijaya Bhandary on 26.07.2018 and he too stated
that she had suffered a cardiac arrest on
25.07.2018 on account of injury to the neck.
PW10, lady doctor at KMC hospital stated that
Vijaya Bhandary was brought to intensive care unit
on 26.07.2018 at 05.00pm because of cardiac
arrest. She was in the team which attempted to
resuscitate Vijaya Bhandary.
- 18 -
NC: 2025:KHC:12027-DB
18. Even though the doctors have stated that
cardiac arrest was due to the injury, especially on
the neck, it is not possible to find the nexus
between the injuries and cardiac arrest. If this
opinion is expressed, it does not mean that
expert's opinion can be rejected, but because of
certain doubts that arise from the answers given
by the doctors an inference can be drawn that the
cardiac arrest leading to death cannot be linked to
the injuries. Vijaya Bhandary might have suffered
cardiac arrest and that could be the cause for her
death and this is acceptable. The opinion given by
the doctors that cardiac arrest was due to injuries
does not appear to be convincing from the
perception of a common man. These inferences
are possible to be drawn because in the wound
certificate, it is clearly written that the depth of
the first injury cannot be made out. Pressure
bandage was put to stop bleeding. Conspicuously
damage to blood vessels on the neck region is not
- 19 -
NC: 2025:KHC:12027-DB
mentioned. Even in Ex.P17, the death summary,
there is no indication of damage caused to the
blood vessels. Very importantly in the post
mortem report, the walls of the heart are shown to
be intact and the valves were found competent.
Large vessels were also intact. PW17 who
conducted post mortem examination has answered
in the cross examination that if a person dies of
heart attack, it will not be mentioned in the post
mortem report. His opinion is that he did not find
any reason other than the injuries for the cause of
death. This is quite contrary to the opinion given
by other two doctors PW9 and PW11. The answers
of these two doctors in the cross examination
assume significance in the sense that if there was
profuse bleeding, the injury needed to be sutured
to stop bleeding. In this case as mentioned in the
wound certificate, Ex.P15, suturing was not done
and instead pressure bandage was put. That
means there was no profuse bleeding. In all
- 20 -
NC: 2025:KHC:12027-DB
probability the neck injury was superficial because
its depth is not mentioned. PW9 has also stated
that when he gave report he did not mention the
reason for the heart attack. Essentially it should
have been mentioned. PW11 has also answered in
the cross examination that he was unable to say
that the cardiac arrest occurred due to the injury
and it could be ascertained only after conducting
post mortem examination. If PW11 stated so,
PW17 who conducted post mortem examination
stated that cardiac arrest will not be mentioned in
the post mortem examination. Therefore the
overall inference that can be drawn is that the
neck injury appeared to be superficial without
causing damage to the blood vessels in the neck
region. The pulse rate and the BP noted in the
initial stage were not abnormally high to expect
any heart related issue or ailment. In this view it
is impossible to accept the opinions of the doctors
- 21 -
NC: 2025:KHC:12027-DB
that the cardiac arrest was due to injuries suffered
by Vijaya Bhandary.
19. The facts disclose that the accused had
no intention to kill. The prosecution case is that
accused resorted to inflicting injuries because his
sister Vijaya Bhandary refused to give him money.
To record conviction for the offence under Section
302 of IPC, the injuries inflicted by the accused
must fall within the ambit of secondly or thirdly of
Section 300 of IPC. And if the accused is to be
convicted for the offence under Section 304 Part-I
IPC, the injuries must satisfy the requirement of
occurrence of such kind of bodily injury as is likely
to cause death as envisaged under Section 299 of
IPC. Absent these requirements, no conviction can
be recorded either for the offence under Section
304 Part-I or 302 of IPC, as the injuries noted in
the wound certificate and the post mortem report
were unlikely to cause death.
- 22 -
NC: 2025:KHC:12027-DB
20. However in Ex.P17, the death summary
there is a clear note that there was undisplaced
fracture of middle 1/3 r d of the left clavicle which
satisfies the ingredients of Section 326 of IPC
relating to voluntarily causing grievous hurt by
dangerous weapon. MO2 seized at the instance of
accused and identified by the prominent witnesses
is a knife which is a dangerous weapon. Therefore
the accused can be convicted for the offence under
Section 326 of IPC. He has been in custody since
26.07.2018 i.e., from the date of his arrest. He
has spent more than 6 years in the jail. The
sentence of imprisonment can be set off for this
period, and of course he should be directed to pay
fine in view of the sentencing structure envisaged
in Section 326 of IPC. In our opinion fine of
Rs.10,000/- can be imposed. Conviction for the
offence under Section 448 of IPC can be retained
as the facts indicate that he trespassed into the
house of Vijaya Bhandary before committing the
- 23 -
NC: 2025:KHC:12027-DB
offence. The sentence imposed by the trial court
for this offence can be retained. And now the
following:
ORDER
i. The appeal is partly allowed and
impugned judgment is modified.
ii. Conviction and sentence imposed by the
trial court for the offence under Section
448 of IPC is confirmed.
iii. Conviction of the accused for the offence
under Section 302 of IPC is set-aside and
consequently sentence of life
imprisonment is also set-aside.
iv. The accused is held guilty of the offence
under Section 326 of IPC and sentenced
to imprisonment for the period he has
already spent in jail and fine of
Rs.10,000/-, in default of payment of
- 24 -
NC: 2025:KHC:12027-DB
which he shall further undergo simple
imprisonment for one month.
v. The accused shall be released from jail if
his presence is not required in any other
case.
Sd/-
(SREENIVAS HARISH KUMAR)
JUDGE
Sd/-
(K. V. ARAVIND)
JUDGE
KMV
