Dismissed

Sri B N Ashwath Reddy v. the State of Karnataka

Karnataka HC19 Oct 2022CRL.A/1941/2016

Case brief

AI extract

What is this about?

An attempt-to-murder conviction arising from a chopper assault that amputated the victim's left hand was upheld. The court dismissed the accused's appeal and the victim's and State's enhancement appeals, confirming seven years' rigorous imprisonment, fine and compensation. Set-off was allowed for custody already undergone.

What did the court decide?

Set-off under Section 428 Cr.P.C. for the sentence period already undergone.

Sri B N Ashwath Reddy Vs the State of Karnataka — Criminal Trial and Appeal | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF OCTOBER, 2022

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PRESENT

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THE HON’BLE MR. JUSTICE B. VEERAPPA

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AND

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THE HON’BLE MRS. JUSTICE K.S. HEMALEKHA

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CRLIMINAL APPEAL No.1606/2016 C/W CRLIMINAL APPEAL No.1941/2016, CRLIMINAL APPEAL No.2193/2016

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IN CRLIMINAL APPEAL No.1606/2016

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SRI VENKATARAVANA S/O. LATE BYRAREADDY, AGED ABOUT 34 YEARS, PERMANENT RESIDING AT MUSTURU PATNA VILLAGE, CHINTAMANI TALUK, CHICKABALLAPURA DISTRICT – 562 101. ... APPELLANT

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(BY SRI S. SHANKARAPPA, ADVOCATE)

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AND:

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STATE BY BATLAHALLI POLICE CHINTAMANI TALUK – 562 101. REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BANGALORE – 560 001. ... RESPONDENT

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(BY SRI VIJAY KUMAR MAJAGE, ADDITIONAL SPP)

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THIS CRL.A. IS FILED UNDER SECTION 374(2) CR.P.C BY THE ADVOCATE FOR THE APPELLANT PRAYING THAT THIS HON’BLE COURT MAY BE PLEASED TO SET ASIDE THE JUDGMENT AND ORDER DATED 18.08.2016 PASSED BY THE

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PRL. DIST. AND S.J., CHIKKABALLAPURA IN S.C.NO.37/2010 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 307 OF IPC.

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IN CRLIMINAL APPEAL No.1941/2016,

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BETWEEN:

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SRI B.N. ASHWATH REDDY AGED ABOUT 40 YEARS, S/O. B.N. NARASIMHA REDDY, RESIDING AT MUSTURUPATNA, YANAMALAPADI POST, CHINTHAMANI TALUK, CHICKABALLAPURA DISTRICT – 562 101. ... APPELLANT

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(BY SRI BHADRINATH R., ADVOCATE (V.C.))

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AND:

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THE STATE OF KARNATAKA BY BATLAHALLI POLICE, CHINTAMANI TALUK – 562 101 REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA, BANGALORE – 560 001.

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SRI VENKATARAMANA, AGED ABOUT 34 YEARS, S/O. LATE BYRA REDDY, PERMANENT RESIDENT AT MUSTURUPATNA VILLAGE, CHINTAMANI TALUK, CHICKABALLAPURA DISTRICT – 562 101.

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(NOW AT PRESENT IN JUDICIAL CUSTODY CENTRAL PRISON AT BANGALORE CITY). ... RESPONDENTS

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(BY SRI VIJAY KUMAR MAJAGE, ADDITIONAL SPP FOR R-1; SRI S. SHANKARAPPA, ADVOCATE FOR R-2)

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THIS CRL.A. IS FILED UNDER SECTION 372 CR.P.C BY THE ADV. FOR THE APPELLANT PRAYING THAT THIS HON’BLE COURT MAY BE PLEASED TO MODIFY THE ORDER DATED 18.08.2016 PASSED BY THE PRL. DIST. AND S.J., CHIKKABALLAPURA IN S.C.NO.37/2010 AND TO ENHANCE THE SENTENCE OF IMPRISONMENT OF LIFE AND DIRECTED THE ACCUSED TO PAY THE COMPENSATION FOR SUM OF RS.25,00,000/- TO THE APPELLANT/INJURED/ASHWATH REDDY.

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IN CRLIMINAL APPEAL No.2193/2016

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BETWEEN:

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STATE BY BATLAHALLI INSPECTOR OF POLICE, CHINTAMANI TALUK, CHIKKABALLAPUR DISTRICT, REP. BY THE STATE PUBLIC PROSECUTOR BENGALURU – 01. ... APPELLANT

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(BY SRI VIJAY KUMAR MAJAGE, ADDITIONAL SPP)

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AND:

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VENKATARAVAN S/O. LATE BYRAREDDY, AGED 40 YEARS, R/AT MUSTURPATNA VILLAGE, CHINTAMANI TLAUK – 563 125. ... RESPONDENT

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(BY SRI S. SHANKARAPPA, ADVOCATE)

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THIS CRL.A. IS FILED UNDER SECTION 377 CR.P.C. BY THE STATE P.P. FOR THE STATE PRAYING THAT THIS HON’BLE COURT MAY BE PLEASED TO MODIFY THE SENTENCE IMPOSED DATED 18.08.2016 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, CHIKKABALLAPUR IN S.C.NO.37/2010 - AND IMPOSING INADEQUATE SENTENCE ON THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 307 OF IPC.

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THESE CRIMINAL APPEALS COMING ON FOR FINAL HEARING THIS DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:-

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J U D G M E N T

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The criminal appeal No.1606/2016 is filed by the accused to set-aside the impugned judgment of conviction and order of sentence, criminal appeal Nos.1941/2016 and 2193/2016 are filed by the injured-victim and the State respectively, for enhancement of punishment under the provisions of Section 307 of Indian Penal Code (hereinafter referred to as ‘IPC’ for short).

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These three appeals are filed by accused,

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State and victim against the impugned judgment of conviction and order of sentence dated 18.08.2016 passed in S.C.No.37/2010 on the file of the Principal District and Sessions Judge, Chikkaballapur convicting the accused to undergo rigorous imprisonment for a period of seven years with fine of Rs.5,000/- in default of fine, the accused shall undergo rigorous imprisonment for a period of two years under the

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provisions of Section 307 of IPC and also imposed penalty of Rs.1,00,000/- on the accused to pay the compensation to the injured-victim under the provisions of Sections 357 (3) of the Code of Criminal Procedure (hereinafter referred to as ‘IPC’ for short).

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The brief facts of the case as per Ex.P.1complaint filed by P.W.1 are as under:

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P.W.1, who is aged about 38 years and a resident of Musturu Village, Chintamani Taluk lodged a complaint stating that on 23.06.2009 p.m, he and other witnesses were sitting at the Musturaya Swamy Temple at about 12.30 p.m., when P.W.2-Aswath Reddy was going towards his field via Venu’s field, at that time, the accused Venkataramana drove his car in a rash and negligent manner and dashed against P.W.2, who fell over the car bonnet. Thereafter, the accused came out of the car and assaulted P.W.2 with an iron long on the head and chopped the forearm of

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P.W.2 and again assaulted on the head and arms and caused grievous injuries. After seeing the incident, the complainant along with others came to the spot and tried to catch the accused, the accused threatened with the dire consequences and ran away from the spot along with chopper by leaving his vehicle on the spot. Based on the aforesaid complaint, the jurisdictional police have registered a case against the accused in Crime No.55/2009 for the offence punishable under the provisions of Sections 324, 307 and 506 of IPC on 23.06.2009.

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During the course of investigation, the

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accused was arrested on 27.11.2009 and after completion of investigation, the jurisdictional police filed charge-sheet against the accused only under the provisions of Sections 307 and 506 of IPC. As offence is exclusively triable by the Sessions Court, the matter was committed to the learned Sessions Court,

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Chikkaballapur in SC No.37/2010. After committal of the matter, the learned Sessions Judge secured the presence of the accused, framed the charge, read over it to the accused in the language known to him, who pleaded not guilty and claimed to be tried.

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In order to prove the case of the prosecution, the prosecution examined 11 witnesses as P.W.1 to 11 and got marked the documents at Exs.P.1 to P.9(a) and Material Objects at M.Os.1 to 12. After completion of the evidence of prosecution witnesses, the statement of the accused as contemplated under the provisions of Section 313 of the Cr.P.C. was recorded, who denied all the incriminating circumstance adduced by the prosecution witnesses and answered question No.25 that P.W.2-the injured belongs to K.H. Muniyappa Party and at the instance of K.H. Muniyappa, P.W.2 made a false case against him.

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After considering both oral and

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documentary evidence on record, the learned Sessions Judge, passed the impugned judgment of conviction and order of sentence dated 18.08.2016 acquitted the accused for the offence punishable under the provisions of Section 506 of IPC and convicted the accused for the offence punishable under the provisions of Section 307 of IPC and sentenced to undergo seven years of rigorous imprisonment with fine of Rs.5,000/- in default of fine, the accused shall undergo two years of rigorous imprisonment and also ordered to pay a sum of Rs.1,00,000/as compensation to the injured-victim under Section 357(3) of Cr.P.C. Hence, the criminal appeal No.1606/2016 is filed by the accused to set-aside the impugned judgment of conviction and order of sentence, criminal appeal No.1941/2016 is filed by the injured-victim and criminal appeal No.2193/2016 is

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filed by the State for enhancement of punishment under the provisions of Section 307 of IPC.

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We have heard the learned counsel for the

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parties.

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Sri. S. Shankrappa, learned counsel for the appellant/accused in criminal appeal No.1606/2016 contended with vehemence that the impugned judgment of conviction and order of sentence passed by the learned Trial Court convicting the accused to undergo rigorous imprisonment for a period of seven years with fine of Rs.5,000/- for the offence punishable under the provisions of Section 307 of IPC and penalty of Rs.1,00,000/- to the injured-victim is erroneous and contrary to the material on record and cannot be sustained. Thereby, the same is liable to be set-aside. Learned counsel would contend that the car, which was found on the spot, has not been seized

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or produced before the Court. M.O.1-blood stained mud, M.O.2-sample mud, M.O.3-blood stained car glasses, M.O.4-dried blood, M.O.5-hand watch, M.O.6chilly powder, M.O.7-iron long/Macchu, M.O.8 to 12clothes were not sent to FSL to prove the place of occurrence or the incident. Thereby, the conviction and order of sentence is not sustainable.

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He further contended that though the case was registered on 23.06.2009 at about 4.45 p.m. at the instance of P.W.1 as per Ex.P.1-complaint, the same was received by the learned JMFC Court at 12.00 p.m. on the next day i.e., on 24.06.2009. Thereby, the prosecution has not proved the case beyond reasonable doubt. He further contended that there is political motivation to implicate the present appellant as accused, which is admitted by P.W.2injured in his examination-in-chief that the accused belongs to Dr. Sudhakar Reddy’s party and P.W.2

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belongs to K.H. Muniyappa’s party. As per Ex.P.8 - MLC and Ex.P.9- copy of MLC, the injured-victim sustained ten injuries, but the evidence of doctorP.W.11, who treated the injured initially at Batlahalli stated that the injuries could have been sustained by the use of M.O.7. He further contended that P.W.9doctor has not treated P.W.2 in Sparsh Hospital, who issued Ex.P.6-Wound Certificate. However, the treated doctors namely Chandrashekar, Ashokraju were not examined by the prosecution. Thereby, the prosecution has not proved the case beyond reasonable doubt.

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He further contended that X-rays, which were said to have been taken, were not produced. He further contended that as per the complaint at Ex.P.1, which was lodged by P.W.1, the length of the cutter was about 2 feet, but P.W.11-doctor in his evidence stated the length of the long is about 1½ inch.

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Thereby, there is inconsistent statements of the use of M.O.7. The genuineness of the incident is suppressed and the jurisdictional police could have registered a case under the provisions of Sections 338 and 279 of IPC and not under Sections 506 or 307 of IPC. He further contended that the accused has three daughters, who are studying II PUC, I PUC and 9^th standard and the accused is the only earning member of the family and has no person to look after them. He further contended that accused is residing at Bagepalli far away from the incident took place and from P.W.2. Taking into consideration the mitigating circumstances, it is a fit case to reduce the sentence from the offence punishable under the provisions of Section 307 into the Section 324 of IPC and the accused has already undergone punishment for a period of two years and three months and is in judicial custody and lesser sentence may be imposed.

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Therefore, sought to allow the appeal filed by the

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accused.

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In support of his contention, he relied upon the dictum of the Co-Ordinate Bench of this Court in the case of State Vs. Sheenappa Gowda reported in ( 2011) 4 KCCR 2759 at paragraph No.11 and the dictum of the Hon’ble Apex Court in the case of Pashora Singh v. State of Punjab, reported in AIR 1993 SC 1256 at paragraph No.8 and contended that utmost the accused may be convicted under the provisions of Section 324 and not under Section 307 of IPC.

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Per contra, Sri. Bhadrinath, learned counsel for the injured-victim-P.W.2, who filed criminal Appeal No.1941/2016 contended that the accused admitted the political rivalry between the accused and the victim-P.W.2 in the statement recorded under Section

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313 of Cr.P.C. and thereby, the material on record clearly shows that the accused was involved in an attempt to murder. He further contended that P.W.9Doctor stated on oath that the injuries were caused by the use of M.O.7 and wound certificate clearly depicts that the accused by using the M.O.7-chopper chopped the hand of P.W.2. Thereby, sought enhancement of punishment under the provisions of Section 307 of IPC.

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Sri. Vijaykumar Majjage, learned Additional SPP, who filed criminal appeal No.2193/2016 for enhancement of punishment under the provisions of Section 307 of IPC would contend that the surviving victim-P.W.2 specifically stated on oath about the motive, intention of the accused against him. Ex.P.9MLC clearly depicts that left hand of P.W.2 has been completely amputated just above the wrist and has caused ten other body injuries. He further contended

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that the motivation, intention and preparation to attempt the murder of P.W.2 is proved based on the oral and documentary evidence on record and mere not sending M.Os.1 to 12 to FSL is not a ground to disprove the case of the prosecution. He further contended that it is admitted by the accused in the statement under Section 313 of Cr.P.C. and as well as P.W.2 in his evidence that there was old political enmity between the accused and the victim. The material on record clearly depicts that in order to murder P.W.2, the accused tried to use the chopper to the head of P.W.2. However, when P.W.2 tried to escape by using his left hand, the hand was completely chopped and the chopped hand was put in a plastic bag along with the victim were taken to the hospital and thereafter, the same was implanted at Sparsh Hospital, which clearly indicates that the prosecution proved beyond reasonable doubt, which

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attracts the provisions of Section 307 of IPC. The State has not filed any appeal for acquittal of the offence punishable under Section 506 of IPC as the major evidence is proved i.e., not a ground to reduce the sentence and it is a fit case to enhance the sentence to the maximum as contemplated under the provisions of Section 307 of IPC. Therefore, sought to allow the appeal filed by the State and dismiss the appeal filed by the accused.

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In view of the rival contentions urged by

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the learned counsel for the parties, the points that arise for our consideration in the present appeals are:

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“1. Whether the accused has made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the learned Trial Court for the offence punishable under the provisions of Section 307 IPC?

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Whether P.W.2, who filed Criminal Appeal No.1941/2016 and the State, who filed Criminal

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Appeal No.2193/2016 have made out a case for enhancement of maximum punishment as contemplated under the provisions of Section 307 of IPC, in the facts and circumstances of the present case?

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We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record including the original records carefully.

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This Court being the Appellate Court exercising the power under the provisions of Section 374 (2) and 377 of the IPC, in order to re-appreciate the entire material on record, it is relevant to consider the oral and documentary evidence on record.

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(a) P.W.1-K.R. Nagaraja, who is complainant

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and none other than a relative of injuredvictim has lodged a complaint as per Ex.P.1 and he is witness to Ex.P.2-spot mahazar and Ex.P.3-recovery mahazar and

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recovery of M.O.7-chopper, who deposed that chopper was recovered at the instance of the accused and thereby, supported the case of the prosecution.

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(b) P.W.2-B.N. Ashwathareddy, the injured-

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victim who reiterated the contentions of his deposition on par with the complaint averments and stated on oath that Ex.P.6wound certificate issued by P.W.9, M.Os-8 to 10 are the blood stained clothes belongs to him. Thereby, he supported the case of the prosecution.

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(c) P.W.3 - Shankar is one of the eye witness along with P.W.1 to the incident occurred on 23.06.2009 and supported the case of the prosecution.

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(d) P.W.4 – B.S. Srinivasareddy, Panch witness to Ex.P.2-spot mahazar identified the

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seizure of M.Os.1 to 6 and supported the case of the prosecution.

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(e) P.W.5 – B.R. Narasimhareddy, Panch witness to Ex.P.4-seizure mahazar and recovery of M.Os.8 to 12 clothes of P.W.2 and supported the case of the prosecution.

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(f) P.W.6 – M.S. Venkatareddy, Panch witness to Ex.P.3-seizure mahazar and recovery of M.O.7-Chopper and supported the case of the prosecution.

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(g) P.W.7 – M.N. Krishna Reddy, the owner of the offending car, from whom the accused purchased the car, has supported the case of the prosecution.

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(h) P.W.8 – K.M. Srinivasappa, Police Sub-

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Inspector, who received the complaint as per Ex.P.1 and registered a case in Crime No.55/2009 at 4.45 p.m. for the offence punishable under the provisions of Sections 324, 307 and 506 of IPC and filed Ex.P.5report under Section 154 of Cr.P.C and supported the case of the prosecution.

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(i) P.W.9 – Dr. Vidyulatha V. Shetty, who issued Ex.P.6– wound certificate.

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However, she did not treat P.W.2-injured but supported the case of the prosecution.

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(j) P.W.10 – M. Suryaprakash, Investigating Officer, who conducted the investigation and filed charge-sheet under the provisions of Sections 307 and 506 of IPC omitting the provisions of Section 324 of IPC and

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same is not challenged either by the State or by P.W.2. However, supported the case of the prosecution.

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(k) P.W.11 – Dr. Muniswamyreddy, who treated P.W.2 initially at Battlahalli Health Centre issued Ex.P.9-MLC Register and Ex.P.9(a)- Copy of MLC Register and supported the case of the prosecution.

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Based on the oral and documentary evidence, the learned Sessions Judge has proceeded to convict the accused and sentenced to undergo rigorous imprisonment for a period of seven years with fine of Rs.5,000/- under the provisions of Section 307 of IPC and ordered to pay a compensation of Rs.1,00,000/- to P.W.2 under Section 357 (A) of Cr.P.C.

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The gist of the Ex.P.1-Complaint by P.W.1,

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who is none other than a relative of the injured and an eyewitness, is that P.W.1 along with one ShankarP.W.3, Kittanna and Vishwanath were sitting near Musturaya Swamy Temple, at about 12.30 p.m. when P.W.2 - B.N. Ashwathareddy was going towards his field, at that time, the accused came in a car and dashed against P.W.2. Due to which, P.W.2 fell on the car bonnet and at that time, the accused came out of the car and assaulted P.W.2 with a long/chopper and chopped off the left forearm of P.W.2 and assaulted on

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the other parts of the body and when P.W.1 and others came to the spot to rescue P.W.2, the accused ran away from the spot leaving behind the car. The jurisdictional police have registered a case against the accused in Crime No.55/2009 on 23.06.2009 at about 4.45 p.m. for the offence punishable under the provisions of Sections 324, 307 and 506 of IPC.

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In order to prove the case of the

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prosecution, the complainant was examined as P.W.1, who reiterated the averments made in the complaint and stated on oath that the accused assaulted P.W.2 with M.O.7-Chopper and chopped off the left hand of P.W.2 and caused injuries to all over the body. In the cross-examination, deposed that earlier he, PWs.2 and 4 and the accused were members of the party of K.H. Muniyappa and thereafter, the party became two groups. PWs.1 and 2 belong to K.H. Muniyappa’s party and the accused belongs to Dr. Sudhakar Reddy’s party and thereby, there was old animosity and nothing has been elicited to disprove that the accused did not assault P.W.2 and chop off his hand on the date of the incident.

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P.W.2, who is none other than surviving

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injured/victim stated in his evidence that on the

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unfortunate day at about 12.30 p.m when he was going to his field, near Musturaya Swamy Temple, the accused came behind him in a car, in a rash and negligent manner dashed the injured-victim. However, the injured-victim has not sustained any injuries and thereafter, the accused came out of the car with chopper, tried to assault the head of P.W.2, but in order to escape, P.W.2 showed his left hand. Thereby, the accused chopped of the left hand of P.W.2 and in spite of the same, the accused assaulted all over the body and caused about ten injuries. Thereafter, when P.W.1, P.W.3 and others came to the spot, the accused ran away along with M.O.7Chopper and thereafter, the injured-victim was taken to the hospital along with a chopped hand in a plastic bag and had taken initial treatment at Bhattalahalli. On instructions, he came to Sparsh Hospital, Bangalore along with the chopped hand and at Sparsh

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Hospital, implanted the hand. He further stated that MOs.8 to 10 blood stained clothes belong to him. He stated in the cross-examination that earlier he, P.W.1, P.W.4 and the accused belongs to K.H. Muniyappa’s Party. Thereafter, the party became two groups and PWs.1 and 2 belong to K.H. Muniyappa’s party and the accused to Dr. Sudhakar Reddy’s party and thereby, there was old animosity between us. He further stated that when the car hit from behind, the injured-victim fell on the car bonnet and thereafter, when he tried to run away, the accused did not leave and assaulted him. Nothing has been elicited to disbelieve that the accused has not chopped off the left hand or that there is no enmity between P.W.2 and the accused.

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P.W.3, who is an eye witness to the case of the prosecution stated on oath on par with PWs.1 and

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2 and denied that he was not present on the day of

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the incident or has not seen the occurrence. He further stated that the accused assaulted the injuredvictim and specifically stated that the land was at a distance of about 5 to 6 feet from the main road and he is unaware of the registration number of the car, which was brought by the accused and he further stated that when he saw, P.W.2 on the bonnet of the car, the bonnet was contained with blood stains and the accused, after seeing P.W.3 and others, ran away from the spot and denied the other cross-examination by the accused.

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P.W.4, who is panch witness stated on oath

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that he witnessed the recovery of M.Os1 to 6 and denied that he was not a panch witness and supported the case of the prosecution.

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P.W.5, panch witness, stated on oath that M.Os.8 to 12 – clothes of P.W.2 were seized in his

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presence and denied that he was not present on the day of spot mahazar.

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P.W.6 one of the panch witnesses to Ex.P.3

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and denied in the cross-examination that he was not a panch witness to Ex.P.3 and has not shown the seizure of M.O.7-chopper at his instance. Thereby, he supported the case of the prosecution.

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P.W.7 who is the owner of the car, from

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whom the accused purchased the car for a sum of Rs.53,000/- and stated that if he sees a car, he will identify the car. The original registered owner is from Andhra Pradesh and does not remember the owner's

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name and the registration of the car was not transferred into his name and he sold the car through one Manjunath and transferred the documents to the accused, who purchased the car. The evidence of

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P.W.7 is not supported the case of the prosecution or the case of the accused.

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P.W.8 who is PSI received the complaint

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per Ex.P.1-complaint and registered a case against accused as per Ex.P.5-report under Section 154 of

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Cr.P.C and supported the case of the prosecution.

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P.W.9 - Smt. Vidyulatha Shetty, who

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testified that she worked at a medical college from 2008 to 2010 and that she used to work at Sparsh Hospital in the evenings, stated that the Ex.P.6-

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Wound Certificate was issued on 09.09.2009 and admitted her signature and further stated that the report shows that the injuries sustained by the victim are grievous in nature and stated that if any sharp weapon had been used, the injuries sustained by P.W.2 would have occurred and that if MO-7 was

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used, there is possibility of injuries mentioned as per

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Ex.P.6. She further admitted in her cross-examination that she did not give treatment to P.W.2-victim and she had given Ex.P.6 prepared by Sparsh Hospital and stated that she had seen X-rays, but who made the X- rays is not known to her. Insofar as the second injury is concerned, she denied that the injuries were sustained due to the motor accident and further denied that Ex.P.6 was issued without knowing anything and also denied it was issued based on the information provided by the Investigating Officer.

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P.W.10-M. Suryaprakash, Investigating Officer, who filed charge-sheet against the accused for the offences punishable under Sections 307 and 506 of the IPC.

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P.W.11-Dr. Muniswamy Reddy, who treated the injured-victim initially at Batlahalli, issued Ex.P.9M.L.C. He has stated that injuries Nos.1 and 3 are

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grievous in nature, i.e. left hand is amputated completely just above the wrist and chopped wound over the dorsum of right hand measuring 4 inches x 1 inch horizontally placed cutting through the muscles tendons and bones and noted other eight injuries are simple in nature. He has further stated that he has given first-aid to the injured-victim and later, he has referred the injured-victim to other Hospital for further treatment. Nothing has been elicited to disprove the injured-victim has not sustained any injuries. In the cross-examination, he has stated that he has seen M.O.7- macchu for the first time in the Court. He has stated that injuries sustained by the accused can be caused by M.O.7.

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The provisions of Section 307 of the IPC defines the offence of attempt to murder. It states that, whoever does any act with the intention or knowledge, that such act would cause the death of

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any person, he would be guilty of murder, and shall be punished with imprisonment for a term up to ten years, and shall also be liable to fine. In addition, this Section states that if hurt is caused to any person by such an act, the offender shall be liable either to imprisonment for life or to the punishment mentioned above.

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Attempt means an endeavour to commit crime. In every crime, there are three stage, namely,

(a) Intention

(b) Preparation

If the third stage, i.e. attempt is successful, then

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the crime is completed.

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On meticulous reading of the oral and documentary evidence on record, in particular the

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evidence of P.W.1-complainant, evidence of P.W.2injured-victim, evidence of P.W.9-Dr. Vidyullatha V. Shetty and evidence of P.W.11-Dr. Muniswamy Reddy as well the statement of the accused under Section 313 of the Code of Criminal Procedure, 1973, clearly depict that there was enmity between the accused and the injured-victim and thereby, intention and preparation are proved and the attempt to assault the injured-victim on the left hand by amputating it completely, but for good fortunate, injured-victim did not die and hence, only Section 307 of the IPC attracts.

¶166

Material document i.e. Ex.P.9-M.L.C issued by P.W.11-Dr. Muniswamy Reddy is as follows:

¶167

Left hand amputated completely just above the wrist.

¶168

Chopped wound over the left forearm below the elbow measuring 3 inches x 3 inches.

¶169

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¶170

Chopped wound over the dorsum of right hand measuring 4 inches x 1 inch horizontally placed, cutting through the muscles tendons and bones. Deformity of Right hand present.

¶171

Incised wound over right forearm measuring 2 inches x 2 cms.

¶172

Incised wound over the left side of face measuring 10 cms x 1 cm vertically placed.

¶173

Incised wound over left temporal region of scalp measuring 3 inches x 1 cm vertically placed.

¶174

Chopped wound over the forehead measuring 4 inches x 2 cms.

¶175

Incised horizontal wound over the left parietal region measuring 3 inches x 1 cm.

¶176

Incised wound over left temporal region measuring 6 cms x 1 cm.

¶177

Cut wound measuring 2 cms x 2 cms on the face left side.

¶178

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¶179

As already stated supra, P.W.11-Dr.

¶180

Muniswamy Reddy has specifically stated that injury Nos.1 and 3 are grievous in nature. Same is also evident from Ex.P.6-Wound Certificate issued by P.W.9-Dr. Vidyullatha V. Shetty.

¶181

Enmity between P.W.1 and P.W.3 of different groups in the same party is proved. Car used by the accused to dash against P.W.2 is proved. The material on record clearly depicts that the accused used M.O.7- macchu of 2 feet, assaulted the injuredvictim, amputated his left hand completely and the same was brought in a plastic bag and was implanted in Sparsh Hospital is also not disputed.

¶182

Though in Ex.P.1-complaint, they were four witnesses, except P.W.1-complainant, other

¶183

witnesses are not examined. Though car, bearing registration No.PY-01 D-2692, was not seized, but the

¶184

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¶185

same is verified and the same is noted in the charge-

¶186

sheet. Further, seizure of car and marking in evidence is not relevant as it is not the case of rash and negligent driving. The complaint is registered on 23.6.2009 at 4.45 p.m. and the same is sent to Judicial Magistrate First Class only on 24.6.2009 at 12 noon that cannot be a fatal to the case of the prosecution. As per the evidence of P.W.9- Dr. Vidyullatha V. Shetty, she has not treated the injuredvictim at Sparsh Hospital, but she has issued Ex.P.6Wound Certificate. P.W.11-Dr. Muniswamy Reddy has issued Ex.P.9-M.L.C., wherein injury Nos.1 and 3 are shown as grievous in nature. Amputation of left hand is mentioned both in Wound Certificate as well as in M.L.C and the same is implanted at Sparsh Hospital, which cannot be disputed. The Doctors have stated that the injuries sustained by the injured-victim can be caused by M.O.7- macchu . Taking into

¶187

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¶188

consideration the entire material on record, the learned Sessions Judge convicted the accused for the offence punishable under Section 307 of the IPC and sentenced him to undergo rigorous imprisonment for seven years with a fine of Rs.5,000/- and to pay compensation of Rs.1 lakh to the injured-victim.

¶189

The fact remains that, initially, the case was registered for the offences punishable under Sections 324, 307 and 506 of the IPC. After investigation, the Police have filed charge-sheet only for the offences punishable under Section 307 and 506 of the IPC. It is also not in dispute that the learned Sessions Judge acquitted the accused for the offence punishable Section 506 of the IPC and the same is not challenged by the injured-victim, or by the prosecution. Now, the injured-victim has filed an appeal only for enhancement of punishment for the offence punishable under Section 307 of the IPC.

¶190

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¶191

Taking into consideration the mitigating circumstances that earlier the accused, injured-victim and others were in the same group and subsequently, they divided into two group and thereby, the accused belonged to one group and the injured-victim belonged to another group and the accused has already underwent two years and three months in custody and is having three daughters studying in II P.U.C., I P.U.C. and IX standard respectively, the learned Sessions Judge was justified in convicting the accused and sentencing him to undergo rigorous imprisonment for seven years with a fine of Rs.5,000/- and to pay compensation of Rs.1 lakh to the injured-victim. Though the injured-victim preferred appeal for enhancement, taking into consideration the gravity of the charges and the oral and documentary evidence on record, this Court is of the considered opinion that neither the accused has

¶192

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¶193

made out any case for reduction of punishment, nor the injured-victim and the State have made out for enhancement of punishment already imposed. Accordingly, the points raised in the present appeals are answered.

¶194

Though Sri S. Shankarappa, learned counsel for the accused, relied upon the dictum of this Court in the case of STATE v. SHEENAPPA GOWDA

¶195

AND OTHERS reported in 2011 (4) KCCR 2759 , wherein it was a case that the prosecution failed to prove the allegation of grievous injury sustained by P.W.4 therein in view of non-production of x-ray for confirmation of fracture opined by the Doctor in clinical medical examination and thereby, the offence was reduced under Section 324 of IPC. Admittedly, in the present case, it is specific evidence of the P.W.2-injured-victim, evidence of P.W.1-complainant and evidence of P.Ws.9 and 11-Doctors that the

¶196

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¶197

accused used M.O.7- macchu and chopped the left hand completely of the injured-victim and the same was brought in plastic bag from Batlahalli Village to Sparsh Hospital, where it was implanted. Ex.P.8Wound Certificate is issued by P.W.9-Dr. Vidyullatha V. Shetty and she clearly depicts about the complete amputation of left hand and P.W.11-Dr. Muniswamy Reddy has stated that injury Nos.1 and 3 are grievous in nature, i.e. left hand is amputated completely just above the wrist and chopped wound over the dorsum of right hand measuring 4 inches x 1 inch horizontally placed cutting through the muscles tendons and bones, thereby the said judgment has no application to the facts and circumstances of the present case.

¶198

Learned counsel for the accused further relied upon the judgment of the Hon'ble Supreme Court in the case of PASHORA SINGH AND ANOTHER v. STATE OF PUNJAB reported in AIR

¶199

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¶200

1993 SC 1256 , wherein it was a case that litigation between the parties was not established as to which of two accused had inflicted injury on the head of the deceased which was described as dangerous to life, thereby the accused was convicted for the offence under Section 326 of the IPC and not under Section 307 of the IPC. Said case has no application for the present case. Admittedly, in the present case, the motive, intention and attempt to commit murder are proved, thereby the injured-victim lost his left hand and the same was implanted at Sparsh Hospital.

¶201

In identical circumstances while considering the provisions of Sections 307 and 319 of the IPC, the Hon'ble Supreme Court in the case of State of Madhya Pradesh vs. Harjeet Singh and another reported in AIR 2019 SC 1120 has held as under:

¶202

5.6 Section 307 uses the term “hurt” which has been explained in Section 319, I.P.C.; and not

¶203

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¶204

“grievous hurt” within the meaning of Section 320 I.P.C.

¶205

If a person causes hurt with the intention or knowledge that he may cause death, it would attract Section 307.

¶206

This Court in R. Prakash v. State of Karnataka, held that :

¶207

“…The first blow was on a vital part, that is on the temporal region. Even though other blows were on non-vital parts, that does not take away the rigor of Section 307 IPC……. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even,

¶208

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¶209

in some cases, be ascertained without any reference at all to actual wounds. The Sections makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section.”

¶210

(emphasis supplied)

¶211

If the assailant acts with the intention or knowledge that such action might cause death, and hurt is caused, then the provisions of Section 307 I.P.C. would be applicable. There is no requirement for the injury to be on a “vital part” of the body, merely causing ‘hurt’ is sufficient to attract S. 307 I.P.C.

¶212

This Court in Jage Ram v. State of Haryana held that:

¶213

“12. For the purpose of conviction under Section 307 IPC, prosecution has to establish (i) the intention to

¶214

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¶215

commit murder and (ii) the act done by the accused. The burden is on the prosecution that accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature of injury and severity of the blows given etc.”

¶216

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¶217

(emphasis supplied)

¶218

This Court in the recent decision of State of M.P. v. Kanha @ Omprakash held that:

¶219

“The above judgements of this Court lead us to the conclusion that proof of grievous or life-threatening hurt is not a sine qua non for the offence under Section 307 of the Penal Code. The intention of the accused can be ascertained from the actual injury, if any, as well as from surrounding circumstances. Among other things, the nature of the weapon used and the severity of the blows inflicted can be considered to infer intent.”

¶220

(emphasis supplied)

¶221

5.7 In view of the above-mentioned findings, it is evident that the ingredients of Section 307 have been made out, as the intention of the Accused/Respondent No. 1 can be ascertained clearly from his conduct, and the circumstances surrounding the offence.

¶222

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¶223

5.8 In the Impugned Judgment, the High Court incorrectly held that the Prosecution has been unable to prove that the Accused/Respondent No.1 had the intention to commit murder of the Complainant. The motive of assault by the Accused/Respondent No.1 on the Complainant –Sukhdev (P.W.2) was clearly established by the Prosecution, since there was an existing dispute which was the subject matter of a court case.

¶224

5.9 It is evident from the evidence adduced before the Court, and the circumstances surrounding the case, that the prosecution has been able to prove the case against Accused/Respondent No.1 beyond reasonable doubt. We find that the prosecution has successfully proved that the Accused/Respondent No.1 – Harjeet Singh had attempted to murder the Complainant – Sukhdeo and the requirements of Section 307 are made out from the ocular evidence which are corroborated by the medical evidence.

¶225

5.10 In view of the above-mentioned discussion, the High Court was in error in reducing the sentence of Accused/Respondent

¶226

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No.1 – Harjeet Singh from Section 307 I.P.C. to Section 324 I.P.C., and sentencing him to 1 year R.I. along with Fine of Rs.1,000.

¶228

6. The present Criminal Appeal is partially allowed. The judgment of the High Court qua Accused/Respondent No.1, is set-aside, and the sentence awarded to him by the Sessions Judge vide Judgment dated 30.11.1998 is restored. The Accused/Respondent No.1 is directed to undergo the remainder of the 5 year Sentence awarded by the Sessions Court, and surrender before the Sessions Court, Ashok Nagar, Guna, M.P. within 2 weeks from the date of this Judgment.

¶229

7. In so far as the case against Accused/Respondent No.2 – Ramji Lal is concerned; the prosecution has not been able to prove beyond reasonable doubt the charge under Section 307 r.w. Section 34 I.P.C. The High Court has rightly held that there is lack of consistency in the deposition of the Prosecution witnesses with respect to the role of the Accused/Respondent No. 2 – Ramji Lal."

¶230

In view of the above, we pass the following

¶231

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¶232

O R D E R

¶233

i. Criminal Appeal No.1606 of 2016 filed by the accused is dismissed as devoid of merits.

¶234

ii. Criminal Appeal No.1941 of 2016 filed by P.W.2injured-victim and Criminal Appeal No.2193 of 2016 filed by the State are hereby dismissed holding that the impugned judgment of conviction and order of sentence passed by the Sessions Court is just and proper.

¶235

iii. The impugned judgment of conviction and order of sentence dated 18-8-2016 in S.C. No.37 of 2010 passed by the Principal District and Sessions Judge, Chikkaballapura, in so far convicting the accused for the offence punishable under Section 307 of the Indian Penal Code, 1860, and sentencing him to undergo rigorous imprisonment for seven years with a fine of Rs.5,000/- (Rupees five thousand only) and compensation of Rs.1,00,000/- (Rupees one lakh only) to the injured-victim is hereby confirmed ;

¶236

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iv. Learned Sessions Judge is directed to secure the presence of the accused to undergo remaining period of sentence imposed by the Sessions Court.

¶238

v. The accused is entitled for set off under Section 428 of the Code of Criminal Procedure, 1973, for the sentence period already undergone by him.

¶239

Sd/JUDGE

¶240

Sd/JUDGE

¶241

MBM/KVK

Sri B N Ashwath Reddy v. the State of Karnataka

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Sri B N Ashwath Reddy v. the State of Karnataka

Case brief

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