Partly allowed

The State of Karnataka v. Muniyappa

Karnataka HC22 May 2023CRL.A/1612/2016

Case brief

AI extract

What is this about?

This Court dismissed the State's appeal against acquittal of five accused except the appellant Muniyappa. The Court upheld the lower court's finding that insufficient evidence proved an unlawful assembly or grievous hurt. Muniyappa's appeal was partly allowed to modify his sentence.

What did the court decide?

Criminal Appeal No. 1612/2016 dismissed; Conviction for Section 324 IPC confirmed; Sentence modified to detention already undergone plus fine of Rs.2,00,000/-.

The State of Karnataka Vs Muniyappa — Murder and Culpable Homicide | Karnataka HC (2023)

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CRL.A No. 1612/2016 C/W CRL.A No. 609/2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF MAY, 2023

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PRESENT

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THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

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AND

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THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR

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CRIMINAL APPEAL No.1612/2016 (A) C/w CRIMINAL APPEAL No.609/2016 (C)

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CRL. A. NO.1612/2016:

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BETWEEN:

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THE STATE OF KARNATAKA BY POLICE INSPECTOR THALAGHATTAPURA POLICE REP. BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU – 560 001 …APPELLANT

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(BY SMT.RASHMI JADHAV, HCGP)

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AND:

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MUNIYAPPA

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Digitally signed by A K CHANDRIKA Location: High Court of Karnataka

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S/O K.M. NAGARAJU AGED ABOUT 22 YEARS

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NARAYANASWAMY S/O KRISHNAPPA AGED ABOUT 23 YEARS

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KRISHNAPPA S/O LATE MUNIYAPPA AGED ABOUT 50 YEARS

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SUBBA @ SUBRAMANI S/O MUNISIDDAPPA AGED ABOUT 32 YEARS

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THIMMAKKA W/O KRISHNAPPA AGED ABOUT 42 YEARS

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CRL.A No. 1612/2016 C/W CRL.A No. 609/2016

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ALL ARE R/AT K.GOLLAHALLI VILLAGE KENGERI HOBLI

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BENGALURU SOUTH TALUK – 560 060 …RESPONDENTS

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(BY SRI A.N.RADHAKRISHNA, ADVOCATE FOR SRI K.VISHWANATHA, ADVOCATE FOR R1, R3 to R5, APPEAL AGAINST R2 IS ABATED V/O.DATED 23.11.2022)

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THIS CRIMINAL APPEAL IS FILED U/S.378(1) & (3) CR.P.C PRAYING TO GRANT LEAVE AND SET ASIDE THE JUDGMENT AND ORDER DATED 23.03.2016 PASSED BY THE PRINCIPAL SESSIONS JUDGE, BENGALURU RURAL DISTRICT, BENGALURU IN S.C.NO.25/2014 IN SO FAR AS ACQUITTING ALL THE RESPONDENTS/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 143, 147, 148, 307 AND 435 READ WITH SECTION 149 OF IPC.

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CRL. A. NO. 609/2016:

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BETWEEN:

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SRI MUNIYAPPA S/O K.M.NAGARAJU AGED ABOUT 22 YEARS R/AT K GOLLAHALLI VILLAGE KENGERI HOBLI BENGALURU SOUTH TALUK …APPELLANT

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(BY SRI A.N.RADHAKRISHNA, ADVOCATE FOR SRI K. VISHWANATHA., ADVOCATE)

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AND:

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STATE OF KARNATAKA BY THALAGHATTAPURA POLICE REPTD. BY GOVERNMENT PLEADER HIGH COURT OF KARNATAKA BANGALORE- 560 001 …RESPONDENT

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(BY SMT.RASHMI JADHAV, HCGP)

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THIS CRIMINAL APPEAL IS FILED U/S.374(2) OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT DATED 23.03.2016 PASSED BY THE PRINCIPAL SESSIONS JUDGE, BENGALURU RURAL DISTRICT, BENGALURU IN S.C.NO.25/2014 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 324 OF I.P.C.

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THESE CRIMINAL APPEALS COMING ON FOR FINAL HEARING, THIS DAY, K.S.MUDAGAL J., DELIVERED THE FOLLOWING:

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JUDGMENT

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Challenging the order of conviction and sentence passed against him, accused No.1 in SC No.25/2014 on the file of the Principal Sessions Judge, Bengaluru Rural District has preferred Criminal Appeal No.609/2016. Whereas challenging the order of acquittal of accused Nos.2 to 5 in the same case, the State has preferred Criminal Appeal No.1612/2016.

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The appellant in Criminal Appeal No.609/2016 is respondent No.1 in Criminal Appeal No.1612/2016. Respondent Nos.1 to 5 in Criminal Appeal No.1612/2016 were accused Nos.1 to 5 in S.C.No.25/2014 before the trial Court. Pending these appeals, accused No.2/respondent No.2 in Criminal Appeal No.1612/2016 died. Therefore, case against him stood abated. For the purpose of convenience henceforth the parties will be referred to as per their ranks before the trial Court.

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Accused Nos.1 to 5 were prosecuted in SC No.25/2014 on the file of the Principal Sessions Judge, Bengaluru Rural District, Bengaluru for the offences punishable under Sections 143, 147, 148, 307 and 435 read with Section 149 of IPC on the basis of the charge sheet filed by Thalaghattapura Police in Crime No.102/2013 of their

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CRL.A No. 1612/2016 C/W CRL.A No. 609/2016

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Police Station. The said case was registered against the accused on the basis of the complaint Ex.P1 filed by PW.1Mahalingappa.

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The case of the prosecution in brief is as follows:

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(i) Accused Nos.3 and 5 are husband and wife and

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accused No.2 is their son. PW.1 is the father of PW.2 Manjunath who is the victim in this case. Accused Nos.1 and 4 are relatives of PWs.2 to 5. PWs.3 to 5 intended to sell their ancestral property. They requested accused No.1 to join them in execution of the sale deed which was declined by him. In that connection, there was a scuffle between accused No.1 and PWs.3 to 5. At that time, PW.2 the victim of this case had helped to hospitalize PWs.3 to 5. Therefore, accused No.1 was nurturing ill will against PW.2.

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(ii) In that background, on 17.02.2013 at 7.00 p.m., near the peepal tree situated near K.Gollahalli bus stand, the accused with an intention to commit murder of PW.2 forming themselves into an unlawful assembly, picked up quarrel with him. Accused No.1. Muniyappa assaulted on the right lower limb of PW.2 with a chopper and caused him grievous hurt and other accused assaulted PW.2 with hands and kicked him with leg. Thus the accused attempted to commit his murder.

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Further they set the motorcycles bearing No.KA-02-EJ-8734, KA-05-EK-6404 and KA-02-HP-3144 on fire. Thereby, the accused committed the offences punishable under Section 143, 147, 148, 307, 435 read with Section 149 of IPC.

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On committal of the case, the trial Court on hearing the parties, framed the charges against the accused for the offences punishable under Sections 143, 148, 307 and 435 read with Section 149 IPC. The accused denied the charges and claimed trial. Therefore, the trial was conducted. In support of the case of the prosecution, PWs.1 to 9 were examined and Exs.P1 to P8 and MOs.1 and 2 were marked. On examination of the accused under Section 313 Cr.PC with reference to incriminating evidence, they neither filed defence statement nor led any defence evidence.

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The trial Court on hearing the parties by the impugned judgment and order, acquitted accused Nos.2 to 5 of all charges and convicted accused No.1, only for the offence under Section 324 of IPC and acquitted him of other charges.

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The trial Court relying on the evidence of PW.2the injured witness, PW.8 the Doctor and other witnesses held that the prosecution evidence with regard to involvement of

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accused Nos.2 to 5 was not cogent and consistent. The trial Court referring to the evidence of PW.8 further held that the injury suffered by PW.2 was not grievous one. The trial Court further held that the evidence does not indicate that the accused had intention to attempt on the life of PW.2, therefore only the offence under Section 324 of IPC is made out. Thus, convicted him for the offence under Section 324 of IPC. For the said offence, the trial Court sentenced accused No.1 to rigorous imprisonment of three years and fine of Rs.10,000/- and in default to pay the fine, to undergo rigorous imprisonment of six months.

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The State challenges the order of acquittal of accused Nos.2 to 5 of all charges and conviction of accused No.1 for the offences punishable under Section 324 of IPC only. Whereas, accused No.1 challenges the order of his conviction and sentence for the offence punishable under Section 324 of IPC on the ground that there were case and counter case between the accused and PW.2 and the evidence was not properly appreciated.

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Smt.Rashmi Jadhav, learned HCGP reiterating the grounds of appeal submits that PW.2 injured eyewitness and PW.3 to PW.5 other eyewitnesses have categorically spoken

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about the overt acts of all the accused. The trial Court was

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not justified in taking hyper technical view that those witnesses have not spoken about the specific overt act of each of the accused. She further submits that the trial Court, having accepted that accused No.1 assaulted PW.2 with chopper MO.1 was not justified in holding that there was no attempt on the life of PW.2. If accused No.1 had no intention to attempt on the life of PW.2, he would not have wielded the weapon like MO.1. She further submits that the evidence of PW.8 shows that the injury suffered by PW.2 was grievous one. Under such circumstance, she submits that the order of acquittal of accused Nos. 2 to 5 of all the charges and accused No.1 of the charges framed against him and convicting him only for the offence under Section 324 of IPC is unsustainable.

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Sri A.N.Radha Krishna, learned Counsel representing Sri K.Vishwanath, learned Advocate on record for the accused submits that so far as accused Nos.2 to 5, the evidence led by the prosecution was totally bald and so far as accused No.1, he restricts his submission only with regard to

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the quantum of sentence imposed by the trial Court. He submits that having regard to the nature of injury suffered by PW.2, economic and social background of the parties, age of

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accused No.1 and the evidence on record, sentence imposed is disproportionate. He further submits that accused No.1 has undergone judicial custody for 12 days, considering the same and other factors, order of sentence against him may be modified suitably.

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Submissions of both side and materials on record

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are examined. On such examination, the points that arise for determination of the Court are:

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(i) Whether the impugned order of acquittal of accused Nos.2 to 5 suffers any illegality or infirmity?

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(ii) Whether the conviction of accused No.1 for the offence punishable under Section 324 of IPC alone and his acquittal for the other offences is sustainable?

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Analysis

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The relationship between the accused inter se and

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the relationship between accused Nos.1 and 4 with PWs.2 to 5 is not disputed. The genesis of the crime according to the prosecution was dispute between accused No.1 and PWs.3 to 5. It is contended that accused No.1 declined to join PW.5 in selling ancestral properties and he had assaulted them. Since PW.2 helped to hospitalize PWs.3 to 5 during that time,

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accused No.1 was nurturing ill will against PW.2. In that background all the accused forming themselves into unlawful assembly armed with chopper MO.1 with an intention to commit murder of PW.2 picked up quarrel with him near peepal tree situated near K.Gollahalli. It is further alleged that accused No.1 to commit murder of PW.2 assaulted him with chopper MO.1, caused him grievous injuries and other accused bet him with hands and kicked him with legs. The other accused burnt three scooters belonging to PWs.2 to 4.

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The case of the prosecution was based on the

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following factors:

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(i) The circumstance of motive;

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(ii) The evidence of PW.2 injured eyewitness;

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(iii) The evidence of PW.1 the complainant the father of PW.2;

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(iv) The evidence of PWs.3 to 5 eyewitnesses;

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(v) PW.6 owner of the vehicle allegedly burnt; &

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(vi) PW.8 the doctor who treated PW.2; &

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(vii) PW.9 the Investigating Officer.

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Reg: Eye witnesses:

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PW.1 states about filing of the complaint Ex.P1

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and the police visiting the scene of offence and seizure of

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chopper MO.1 and the nicker MO.2 under Ex.P2 during spot mahazar. He was not eyewitness to the incident. The complaint Ex.P1 itself states that after the incident his son was admitted to Rajarajeshwari Hospital and he went to hospital to see his son in the hospital. Therefore it is clear that he is not the eyewitness. The implication of the accused in the case by him was based on the information given to him by some others. Neither in the complaint nor in his chief examination, he disclosed who narrated to him the overt acts of each of the accused. Further, in the complaint he implicated one Swati along with accused Nos.1 to 5. Later he claims to have given further statement to the effect that he had included the name of Swati under misconception and she did not participate in the crime. That goes to show that there was an attempt to implicate all the family members.

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PW.2 the injured eyewitness and PWs.3 to 5 the alleged eyewitnesses state that accused No.1 assaulted PW.2 with chopper MO.1 with an intention to commit his murder. As per the version of PWs.3 to 5, they admitted the injured to Rajarajeshwari Hospital and from there he was taken to Pulse Hospital, Girinagar. The medical records of Rajarajeshwari Hospital pertaining to PW.2 were not collected and produced.

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The doctor who treated him there was not cited as charge sheet witness.

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PW.8 Casualty Medical Officer of Pulse Hospital deposes that PW.2 was brought to their hospital on 17.02.2013 at 9.45 p.m. by one Renukaiah with history of assault on the same day at 7.00 p.m. by known persons with knife at K.Gollahalli. He further deposes that on examining the victim, he issued wound certificate Ex.P3. Even in Ex.P3 the same history is recorded. Therefore the evidence of PWs.3 to 5 that they accompanied and admitted PW.2 into the hospital creates doubt.

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The incident had taken place at 7.00 p.m. The above evidence goes to show that soon after the incident, the history was given as assault by knife and not by chopper. Even the names of the accused did not figure there. Under the circumstances, Renukaiah appearing in Ex.P3 and the evidence of PW.8 becomes material witness. But he was not cited as charge sheet witness. Under the circumstances, the prosecution should have produced the medical records of Rajarajeshwari Hospital and examined the doctor who treated PW.2 in that hospital. That would have clarified whether

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PWs.3 to 5 were the eyewitnesses and whether they admitted him to the hospital.

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Reg. weapon and nature of injury:

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Ex.P2 is the mahazar purportedly drawn on 18.02.2013 between 9.00 a.m. and 10.00 a.m. It says that during mahazar PW.1 produced MO.1 chopper and MO.2 nicker before the Investigating Officer and they were seized. Ex.P2 does not state that chopper was lying at the scene of offence only. PW.1 does not state from where he produced MO.1. Even the Investigating Officer PW.9 does not state from where PW.1 produced MO.1. He only says that during mahazar PW.1 produced MOs.1 and 2 before him and he seized them.

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PW.7 the witness to the mahazar Ex.P2 only says that PW.1 produced MOs.1 and 2. He also does not state from where PW.1 produced MO.1. PWs.3 to 5 do not whisper anything about possession or production of MO.1. Though PW.4 says that himself and PWs.3 and 5 pulled MO.1 from the accused, he does not state that they had kept or handed over the same to PW.1 or it was lying at the scene of offence only. PW.8 the Doctor’s evidence shows that weapon was not referred to him for his opinion.

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Having regard to the aforesaid facts and the knife being shown as weapon of offence in Ex.P3 the wound certificate and the evidence of PW.8 to that effect creates doubt as to whether MO.1 was the weapon used in the commission of offence. That was not clarified by the prosecution.

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Then the next question is whether PW.1 had suffered grievous injuries as claimed by the prosecution. To prove the same, the prosecution relied on the evidence of PW.8. As per the evidence of PW.8 the victim had suffered the following injury:

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“Deep cut laceration over right calf region of the right leg measuring 10 c.m. x 3 c.m. into muscle deep. Margins are clean cut with gaping and profuse bleeding. On exploration it was observed that there is division of posterior compartment muscles and neurovascular bundle. Patient is in hypovolumic shock due to blood loss. (Hb 4.5%)”.

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Though in Ex.P3 the wound certificate the injury was shown as grievous in nature, PW.8 in his chief examination does not state anything about the nature of the injury. The prosecutor did not elicit anything in the evidence of PW.8 about the injury being grievous in nature. In the cross-examination PW.8 admits that PW.2 was treated as

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inpatient till 21.02.2013. That goes to show that he was

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treated as inpatient only for about 5 days.

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Grievous hurt is defined under Section 320 of IPC

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as follows:

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“ 320. Grievous hurt .−The following kinds of hurt only are designated as “grievous”: −

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First. − Emasculation. Secondly − Permanent privation of the sight of either eye. Thirdly. − Permanent privation of the hearing of either ear. Fourthly − Privation of any member or joint. Fifthly .− Destruction or permanent impairing of the powers of any member or joint. Sixthly. − Permanent disfiguration of the head or face. Seventhly. − Fracture or dislocation of a bone or tooth. Eighthly. − Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.”

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Injury mentioned in Ex.P3 does not fall under any of the

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categories mentioned under Section 320 of IPC. Therefore the trial Court was justified in holding that the injury was not

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grievous one.

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Reg. Section 307 of IPC with reference to accused No.1:

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Though the trial Court held that accused No.1 assaulted PW.2 with MO.1 chopper, the above discussions show that use of MO.1 chopper in the commission of offence is doubtful. At the first instance, the weapon of offence mentioned is knife. The said knife was not seized by the Investigating Officer. As discussed above, seizure of MO.1 is not free from embellishment. Who recovered MO.1 after the offence and handed over the same to PW.1 to produce before the police was not explained. Therefore there was no connecting of the dots to fill the gap. The above facts and circumstances go to show that to project the offence as more heinous one, probably MO.1 was planted in place of knife subsequently. The injury suffered was not grievous one. Even as per the prosecution case, accused No.1 assaulted PW.2 with MO.1 on right lower limb below knee. If accused were more in number as alleged and PW.2 was alone, there would have been sufficient opportunity for accused No.1 to deliver blow on other vital parts of the body. Therefore the trial Court was justified in holding that the act of accused No.1 does not constitute the offence under Section 307 of IPC.

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Reg. Sections 143, 148, 307 read with Section 149 of IPC and role of accused Nos.2 to 5:

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According to the prosecution, accused Nos.2 to 5 along with accused No.1 formed unlawful assembly to commit the offence against PW.2 and in furtherance of the common object of such unlawful assembly, accused No.1 assaulted PW.2 with chopper MO.1. Accused Nos.2 to 5 bet him and kicked him on his body. Thereby they have committed the offences punishable under Sections 143, 148, 307 read with Section 149 of IPC.

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In the complaint Ex.P1, no specific overt act is attributed to accused Nos.2 to 5. There are general allegations that accused bet and kicked PW.2. As already observed, PW.1 is not the eyewitness to the incident. PW.2 victim himself did not impute any specific overt act against accused Nos.2 to 5. He made general statement that after he falling on the ground, remaining accused kicked him and slapped him. In the evidence of PWs.3 to 5 also no specific overt act against accused Nos.2 to 5 were imputed. They also made general allegations of accused Nos.2 to 5 beating or kicking PW.2. Mere presence of some persons along with the accused does not make them the members of unlawful

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assembly. The sine quo non of Section 143 of IPC is that they should form such assembly with intention to commit certain offence against the victim.

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As rightly pointed out by the trial Court, the evidence on record does not disclose that accused Nos.2 to 5 were present at the spot with an intention to assault PW.2. The other aspect is that initially the complainant had implicated Swati also. The trial Court taking into consideration the tendency of the parties to rope entire family members of opposite party in the criminal cases in the guise of Sections 143, 148 and 149 of IPC and on sound appreciation of the evidence held that the prosecution has failed to establish that accused Nos.2 to 5 were members of unlawful assembly sharing the object of accused No.1 to assault PW.2 and they assaulted him. Such finding does not warrant any interference of this Court.

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Reg. Section 435 of IPC:

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According to the prosecution, the accused burnt motorcycle bearing Nos.KA-02-EJ-8734, KA-02-HP-3144 and KA-05-EK-6404 belonging to PWs.2 to 4 respectively, thereby committed the offence under Section 435 read with Section 149 of IPC. Ex.P1 the complaint itself says that accused burnt

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the motorcycle of PW.6 the employer of PW.2 and two motorcycles of friend of PW.2. It is not said in the complaint that those motorcycles belonged to PWs.2 to 4. Whereas charge sheet says that the vehicles belonged to PWs.2 to 4. In the complaint, there is no mention of registration numbers of motorcycle so burnt.

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PWs.1 and 2 in their chief examination itself do not whisper anything about burning of the motorcycles. PW.3 says that accused burnt motorcycles taken by him. According to him, the motorcycle of himself and PW.2 were burnt. He does not say three motorcycles were burnt. PWs.4 and 5 say that accused burnt motorcycle of PW.2, but they also do not give registration numbers of those motorcycles nor say that three motorcycles were burnt.

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The Investigating Officer has neither collected the registration number of those motorcycles nor seized them. An attempt was made to say that the motorcycle used by PW.2 belonged to his employer PW.6. PW.6 did not whisper anything about that. Therefore the trial Court rightly held that the prosecution has failed to prove the charge under Section 435 read with Section 149 of IPC.

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Conclusion

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In the light of the discussions made above, the impugned order of conviction of accused No.1 for Section 324 of IPC and acquittal of the accused of other charges does not warrant interference.

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Learned Counsel for the appellant/accused No.1 seeks indulgence in sentence of imprisonment passed against accused No.1. The trial Court has sentenced him to rigorous imprisonment of three years and fine of Rs.10,000/-, in default to pay fine amount to undergo rigorous imprisonment of six months.

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The records show that the incident took place about more than 10 years ago. Accused No.1 and PWs.2 to 5 were related to each other. Admittedly there was property dispute between the parties. The judgment of the trial Court shows that there were criminal cases filed by the accused party of this case against the complainant party of this case. Though it was contended that they were case and counter case even before the Court no material was produced to say that they were case and counter case. To call the same as case and counter case, such incident should have taken place

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at the same date, place and time. Still admittedly there were cases between the parties.

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At the time of offence, accused No.1 was aged hardly 20 years. As per the charge sheet itself, accused No.1 was eking out livelihood by doing coolie work. During the course of trial, he underwent 12 days judicial custody. However, the evidence of PW.8 shows that PW.2 underwent lots of pain due to the injury inflicted. Due to bleeding his hemoglobin was reduced to 4.5%. Considering all such aspects, the interest of justice would be met by confining the sentence of imprisonment to the period of detention already undergone by accused No.1 and enhancing the fine amount to pay compensation to PW.2. Hence the following:

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ORDER

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Criminal Appeal No.1612/2016 is hereby dismissed. Criminal Appeal No.609/2016 is partly allowed. The impugned judgment and order of acquittal so far it relates to accused Nos.2 to 5 is hereby confirmed.

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The order of acquittal of accused No.1 for the offences punishable under Sections 143, 148, 307, 435 read with Section 149 of IPC is hereby confirmed.

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The order of conviction of accused No.1 for the offence punishable under Section 324 of IPC is hereby confirmed.

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The order of sentence imposed against accused No.1 for the offence punishable under Section 324 of IPC is modified as follows:

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(a) For the offence punishable under Section 324 of IPC, accused No.1 is sentenced to the imprisonment of the period of detention already undergone by him in this case and to pay fine of Rs.2,00,000/-. In default to pay the fine amount, he shall undergo simple imprisonment of six months.

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(b) Out of the above fine amount a sum of Rs.1,50,000/- shall be paid to PW.2 as compensation under Section 375(3) of Cr.P.C. The remaining amount shall be remitted to the State.

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warrant accordingly.

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(d) The Trial Court shall disburse the fine amount to

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PW2 soon after the same is deposited.

Sd/JUDGE

Sd/JUDGE

SK/KSR

List No.: 1 Sl No.: 14

The State of Karnataka v. Muniyappa

Case brief

What is this about?

What did the court decide?

The State of Karnataka v. Muniyappa

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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