Dismissed

Kiran S/O Ashok Kale v. the State of Karnataka

Karnataka HC6 Apr 2021CRL.A/3586/2013

Case brief

AI extract

What is this about?

High Court rejected appellant’s appeal under CrPC 374(2) against conviction for attempted murder. Court upheld Trial Court’s finding of motive and perversity, noting corroboration via injured witness, FSL, and eye-witnesses. Sentence deemed on lower side; no enhancement possible. Appeal dismissed.

What did the court decide?

Criminal Appeal dismissed. Appellant directed to surrender forthwith to serve the remaining part of the sentence.

Kiran S/O Ashok Kale Vs the State of Karnataka — Murder and Culpable Homicide | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH

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DATED THIS THE 6^TH DAY OF APRIL, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE V. SRISHANANDA

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CRIMINAL APPEAL NO.3586/2013

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BETWEEN:

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KIRAN S/O ASHOK KALE AGE: 27 YEARS, OCC: DRIVER R/O HOSA KUMBAR ONI, GYANGBAWADI, BIJAPUR

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… APPELLANT

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(BY SRI. R.S.LAGALI, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA REPRESENTED BY THE PSI GANDHI CHOWK P.S.

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… RESPONDENT

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(BY SRI. GURURAJ V. HASILKAR, HCGP)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2) OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 19.07.2013 PASSED BY THE PRINCIPAL SESSIONS JUDGE,

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BIJAPUR IN SESSIONS CASE NO.132/2011 AND ACQUIT THE APPELLANT.

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THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Accused in SC No.132/2011 has challenged the validity of the impugned Judgment passed by the Principal Sessions Judge, whereby the accused was convicted for the offence punishable under Section 307 IPC and ordered to undergo simple imprisonment for three years and pay fine of Rs.10,000/- with default sentence of six months.

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Brief facts which are necessary for disposal of the appeal are as under:

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Upon a complaint lodged by Shoba, Gandhi chowk police, Bijapur, registered a case on 29.1.2011 for the offence punishable under Section 307 and 504 of IPC.

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Complaint averments reveal that she was married to Ravi S/o.Vishnuvardhan and in the year 2006 her husband died and thereafter, she came back to Bijapur

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and started living with her father Muthappa and she has a son by name Darshan, who is studying in Mahatma Gandhi School. It is her case that accused is a resident in the same street where her house is situated and she had got a sum of Rs.20,000/- loan sanctioned to him in the in SBI Bijapur and she stood guarantor for the said loan. Accused defaulted in repayment of the loan and therefore, bank proceeded against her. When she intimated the same to Kiran, he initially agreed to repay the same, but later on refused to pay. In that regard, there was some illwill between the complainant and kiran. When the matter stood thus, on 29.1.2011, at about 1.30 p.m., when the complainant had been to school to get back her son, accused intercepted her and abused her in filthy language and took out a knife from his pant packet, and stabbed her on her chest. When the knife got stuck into the chest, he pressed his left leg on her body and pulled out the knife and again warned her that he will kill her. When she tried to escape, he again stabbed on her stomach and on back

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and she fell down. She was rescued by Akash, who is her relative and accused ran away towards Gyangbavadi.

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Based on the said complaint, police registered the case and investigated the matter and filed charge sheet against the accused for the offence punishable under Sections 307 and 504 IPC.

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Presence of the accused was secured and charge was framed. Trial was held as he did not plead guilty.

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In order to bring home the guilt of the accused prosecution examined 10 witnesses as PWs.1 to 10 and relied on 18 documentary evidence which were exhibited and marked as Exs.P1 to P18 and six material objects as MOs.1 to 6. On behalf of the defence, only one document is marked as Ex.D1. On conclusion of the prosecution evidence, accused statement as contemplated under Section 313 Cr.PC. was recorded, wherein the accused denied all the incriminatory materials and answered that he was regular in paying the loan installments while

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answering question No.7. He did not file any written submissions explaining his version to the case nor adduced any evidence.

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Learned District Judge after hearing the parties

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in detail convicted the accused for the offence punishable under Section 307 of IPC and sentenced him to undergo to simple imprisonment for a period of three years and ordered to pay fine of Rs.10,000/- with a default sentence of simple imprisonment for six months. Learned Trial Judge also ordered that fine amount on recovery be paid as compensation to PW-1.

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Accused is in appeal challenging the validity of the impugned Judgment on the following grounds:

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(1) Impugned Judgment suffers from non application of mind, against the settled principles of law and materials on record;

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(2) Trial Judge committed error in convicting the appellant without properly appreciating the evidence on record;

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(3) There are no independent eye-witnesses cited by the prosecution which exposes the artificiality and the hollowness in the case of the prosecution;

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(4) PW-4 Akash supposed to be an eye-witness is an interested and partisan witness being the close relative of the complainant and therefore, his evidence could not have been believed by the Trial Judge in convicting the accused.

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(5) The alleged incident has not been established by placing cogent evidence on record and there is no motive for the accused to commit an act as alleged.

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(6) The Trial Judge failed to note the evidentiary value of Ex.D-1 which is a document executed by the complainant in favour of the appellant. And therefore, there was no legal liability for the appellant to pay loan installment to the Bank.

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(7) Ex.P2 Seizure mahazar is not proved and the seized clothes are not properly proved by the prosecution;

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(8) PW-10 has not properly investigated the matter and filed a false charge sheet;

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(9) The act alleged against the appellant is against the human probabilities and therefore, the conviction is illegal.

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Re-iterating the above grounds, learned counsel for the appellant Sri R.S. Lagali vehemently contended that the learned Judge has grossly erred in passing the impugned Judgment. He also contended that the reasoning recorded by the learned Judge in the impugned Judgment is unnatural and is against the commonsense and therefore, resulted in gross injustice to the appellant and thus sought for allowing the appeal.

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Alternatively, he argued that the sentence of imprisonment is on higher side and therefore, sought for showing leniency.

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Per contra, learned High Court

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Government Pleader supported the impugned Judgment and argued that the complainant and the eye-witnesses have completely supported the case of the prosecution and medical evidence sufficiently corroborate the version of the complainant and therefore, prayed for dismissal of the appeal.

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In so far as the alternate submission is concerned learned High Court Government Pleader submitted that having regard to the unprovoked assault made by the accused, the Trial Judge has used his discretion and ordered three years imprisonment and therefore, same is appropriate sentence and no case is made out for reducing the sentence and thus prayed for dismissal of the appeal.

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In view of the rival contentions, following points would arise for consideration:

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(i) Whether the finding recorded by the learned trial judge that the accused is guilty of

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the offence punishable under Section 307 of IPC is suffering from legal infirmity or perversity and thus calls for interference?

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(2) Whether the sentence is excessive?

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Answer to the above points is in the Negative for the following reasons:

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REASONS:

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In the case on hand, complainant is examined as PW-1. She deposed in categorical terms with graphic details about the incident in line with the complaint averments. It is her specific case that on 29.1.20011 at about 1.15 p.m. when she was proceeding in front of Loni complex, accused restrained her free movement and abused her in filthy language and took out a knife from his pant packet and assaulted on right side of her neck and left side of the chest region. When she fell down, accused pulled the knife which was stuck in her body, and again assaulted on left side of the naval region and also on left little finger of her hand. When she raised hue and cry,

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Akash and others came there and accused ran away from the scene. Akash secured the presence of her parents and thereafter, ambulance was secured and she was shifted to the Government Hospital, Bijapur. Police visited the Hospital and took her oral complaint reduced into writing vide Ex.P1. She identified the blood stained clothes worn by her at the time of the incident. In her cross examination, it is elicited that bank has released Rs.20,000/- as loan to accused, and accused has given Rs.10,000/- to her out of Rs.20,000/-. She admits that she had to pay Rs.10,000/- to the Bank and in that regard she had executed a bond vide Ex.D-1 in favour of accused. She also admits that except with accused, she had no financial transaction with any body. She also admits that Akash is residing near Bableshwar naka, which is situated at about 2 kms. away from the place of incident. She further admits that before 2010, there was no financial transaction between her and the accused.

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PW-2 is one of the mahazar witnesses to Ex.P3 and P4 photos and identified MOs.3 & 4. In his cross examination he has stated that he had been to Hospital as her aunt was admitted to the Hospital and police requested him to participate in Ex.P2 mahazar.

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PW-3 is the father of the injured. He has deposed about the incident in line with PW-1. In his cross examination, he has answered that he had visited the place of incident in about 15 minutes time after the incident which he came to know from Akash. He admits that before lodging the complaint, himself and PW-1 had discussed. PW-4 is Akash. He is chance witness. He deposed that he is related to PW-1 and he is acquainted with the accused. He has stated that on 29.1.2011 he was consuming tea in a tea shop near Gyangvadi cross and seen PW-1 proceeding on the road. He has seen accused assaulting the complainant. In his cross examination, he has answered that his house is situated near Bableshwar naka, and Gyangwavi cross is 1 km away from his house.

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He has stated that tea shop owner is one Sagar kamble who is his friend. He states that the tea shop was on a moving cart, and he had been to meet Sagar kamble and was consuming tea. He has also answered that incident has taken place for about 15 minutes. He further admits that few public had also assembled near the place of incident. He admits that he did not ask the accused as to why he was assaulting PW.1 He has stated that after the incident had taken place, he brought father of the injured in 10 minutes time and he had accompanied the injured in the ambulance to the Hospital. He is also one of the mahazar witness to Ex.P4 - mahazar. He has supported the case of the prosecution. In his cross examination, however, he admits that he does not know how to read and write kannada language and police have not read over the contents of mahazar.

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PWs. 6, 7 and 8 have turned hostile to the case of the prosecution. PW-9 is the doctor who examined the injured and issued wound certificate Ex.P-10. He

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supported the case of the prosecution. He has answered in his cross examination that he has entered in MLC register that nature of injury as stab injury by knife at 1.30 p.m., on 29.1.2011 at about 1.30 pm., when confronted with the MLC register, he has answered by oversight he has not entered the time and date. He admits that he intimated to the police at 2.25 p.m on 29.1.2011. He denied having given false certificate. Investigating officer PW-10 has deposed about the investigation and filing of charge sheet. In his cross examination, suggestion made to him that he has filed a false charge sheet by conducting a motivated investigation is denied by him.

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The above evidence on record was appreciated by the learned Trial Judge and convicted the accused for the offence punishable under Section 307 IPC.

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It is well settled principles of law that in order to establish the offence under Section 307 IPC, prosecution has to establish that the accused had an intention to take away the life of the injured and in that regard, he must

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have prepared himself and committed an act whereby the court can infer that he had attempted to murder the injured.

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In the case on hand, in the impugned Judgment at paragraph No.11 the contents of the wound certificate are mentioned which shows number of stab injuries found on the body of the injured, clearly indicate that the assailant has used the force and chosen the vital parts. Intention of an assailant can only be gathered by over all circumstances of the case.

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In this regard, the oral evidence of the complainant assumes importance. PW-1 has specifically deposed that there was a enmity or ill-will nurtured by accused with regard to the non-payment of loan installment by accused to the bank for which loan, PW-1 was a guarantor. The graphical description of the incident by PW-1 when kept in juxtaposition with the wound certificate, there is sufficient corroboration to the prosecution version.

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It is well settled principles of law that the oral

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testimony of an injured witness should be kept on higher pedestal.

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The oral testimony of PW-1 is supported by the

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testimony of her father Muthappa and Akash who is her relative. No doubt, they are the relatives of the complainant. It is now well settled that testimony of the relatives of the injured cannot be brushed aside in toto on the ground of interestedness. In such circumstances, while appreciating such testimony, the court has to exercise extra care and caution to rule out the possibility of false implication of the accused. In the case on hand, when the said test is applied, even though Akash is resident of Bableshwar naka, he is a chance witness inasmuch as near the place of incident, he was taking tea. Further, in his cross examination, he has answered that he accompanied the injured to the Hospital in the ambulance. Further more, why would the complainant falsely implicate the accused by allowing the real culprit to escape away

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from the rigors of law is a question that remains unanswered. There is no defence theory at all except denying the evidence in toto.. FSL report marked at Ex.P14 clearly indicate that blood stains found on the knife, clothes of the accused and the clothes of the injured are one and the same group namely B-group. As such, it is for the accused to explain how his clothes contained the blood stains of B group and tallying with the blood stains worn by the injured on the day of the incident. Blood stains on the knife tallying with the blood stains found on the clothes of accused and injured fortifies the fact MO-1 which is used in the incident and in the incident, the clothes of the accused also got blood stains.

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While recording the accused statement, a specific question is raised by the learned trial judge in this regard. For question Nos.49 and 50, the accused has answered that it is false. In the cross examination of investigating officer, there is not even a suggestion that Ex.P14 is concocted for the purpose of the same. For that

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matter, no question is put to the investigating officer in regard to the FSL report or for that matter bank extract marked at Exs.P-15 & P-16.

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Thus, from the totality of the materials available on record, even after re-appreciation, this court is unable to find any legal infirmity or perversity in the finding recorded by the Trial Judge that accused had every intention to take away the life of the injured and luckily she survived. Therefore, all ingredients required to attract the offence under Section 307 of IPC stands established in this case.

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No other point is urged on behalf of the accused to record a contra finding either. Accordingly, this court answers Point No.1 in the Negative.

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Regarding Point No.2:- Learned trial judge in his discretion has sentenced the accused for three years simple imprisonment and ordered fine of Rs.10,000/- fine. Having regard to the number of injuries sustained and having found the accused committed offence under Section

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307 of IPC, in the considered opinion of this court, the sentence is on the lower side. But, in the absence of any effort on behalf of the State seeking enhancement of the sentence by filing Revision or Appeal, this court in the appeal of an accused cannot enhance the sentence or fine.

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Suffice to say the sentence as ordered by the Trial Judge, needs no interference at the hands of this court in view of the foregoing discussion. Accordingly, Point No.2 is answered in the negative and following order is passed:

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ORDER

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The Appeal is dismissed. Appellant shall surrender before the Trial Court forthwith to serve the remaining part of the sentence.

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Send a copy of this judgment to the Trial Court along

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with the Trial Court records. Ordered accordingly,

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Sd/JUDGE

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PL*

Kiran S/O Ashok Kale v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Kiran S/O Ashok Kale v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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