Partly allowed

Nandisha v. State of Karnataka

Karnataka HC14 Aug 2023CRL.A/492/2012

Case brief

AI extract

What is this about?

This criminal appeal challenged conviction and sentence for affray, assault, and attempted murder. The High Court acquitted appellants of attempted murder due to lack of clear overt act, but confirmed convictions for lesser offences while modifying the sentences to the period of prior custody.

What did the court decide?

Appellants acquitted of Section 307 IPC; conviction for other offences confirmed; sentence reduced to period of custody; fines enhanced.

Nandisha Vs State of Karnataka — Quashing and FIR | Karnataka HC (2023)

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1 - NC: 2023:KHC:28752 CRL.A No. 492 of 2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

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CRIMINAL APPEAL NO. 492 OF 2012

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BETWEEN:

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NANDISHA , S/O NAGAPPA, AGED ABOUT 30 YEARS, GOODS TEMPO DRIVER, HARALIKATTE VILLAGE, CHAMARAJANAGAR TALUK, PRESENTLY RESIDING AT GATTAVADI VILLAGE, NANJANGUD TALUK.

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Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA

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BABU, S/O RAMU KUTTI, AGED ABOUT 30 YEARS, GOODS TEMPO DRIVER, RESIDING AT NO.146/14, 6^TH MAIN, 3^RD CROSS, VIDYARANYAPURAM, MYSORE.

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UMESH, S/O LAKSHMIGOWDA, AGED ABOUT 26 YEARS, GOODS TEMPO DRIVER, RESIDING AT NO.437, 2^ND CROSS, DODDAVAKKALIGERI, K.R.HOSPITAL ROAD, MYSORE.

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GURU,

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S/O RAMANNA, AGED ABOUT 30 YEARS, RESIDING AT NO.101, JAYANAGAR, MYSORE.

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SHASHI KUMAR, S/O GURULINGAPPA, AGED ABOUT 35 YEARS, AGRICULTURIST, MOODANAKUDU VILLAGE, CHAMARAJNAGAR TALUK, CHAMARAJNAGAR DISTRICT.

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…APPELLANTS

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(BY SRI G. JAIRAJ, ADVOCATE)

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AND:

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STATE OF KARNATAKA, BY CHAMARAJANAGAR RURAL POLICE.

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…RESPONDENT

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(BY SRI RAHUL RAI K, ADVOCATE)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DT.17.4.2012 PASSED BY THE DIST., AND S.J. CHAMARAJANAGAR IN S.C.NO.29/2009-CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCE P/U/S 143, 147, 148, 324, 323, 448, 504 AND 307 OF IPC AND ETC.,

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THIS APPEAL COMING ON FOR DICTATING JUDGMENT THIS DAY THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed by accused Nos.1 to 5 praying to set-aside the judgment and sentence dated 17.04.2012 passed in Sessions Case No.29/2009 by the District and Sessions Judge, Chamarajanagar.

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Appellants No.1 to 5 were convicted for the offences punishable under Sections 143, 147, 148, 324, 323, 448, 504 and 307 read with 149 Indian Penal Code (for short hereinafter referred to as 'IPC'). Accused Nos.1 to 5 were sentenced to undergo imprisonment for a period of six months and pay fine of Rs.1,000/- in default to undergo further imprisonment for one month for offence under Section 143 of IPC; further sentenced to undergo imprisonment for one year and to pay fine of Rs.2,000/- in default to undergo further imprisonment for the period of two months for offence under Section 147 read with Section 149 IPC; further sentenced to undergo imprisonment for a period of two years and to pay fine of Rs.3,000/each in default to undergo further

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imprisonment for a period of three months for the offence under Section 148 read with Section 149 of IPC; further sentenced to undergo imprisonment for a period of three years and to pay fine of Rs.4,000/- each and in default to undergo further imprisonment for a period of four months for offence under Section 324 read with Section 149 of IPC; further sentenced to undergo imprisonment for a period of one year and to pay fine of Rs.2,000/- each in default to undergo imprisonment further for a period of two months under Section 323 read with Section 149 IPC; further sentenced to undergo imprisonment for a period of

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one year and to pay fine of Rs.1,000/- each in default to undergo further imprisonment for one month for offence under Section 448 read with Section 149 IPC; further sentenced to undergo imprisonment for a period of two years and to pay fine of Rs.2,000/- each in default to undergo further imprisonment for a period of two months under Section 504 read with Section 149 IPC and further sentenced to undergo imprisonment for a period of four years for the offence punishable under section 307 read

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with Section 149 IPC and pay fine of Rs.25,000/- each in default to undergo further imprisonment for a period of five months under Section 307 read with Section 149 of IPC .

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The factual matrix of the case is that PW-1 Mahesha married one Renuka, the sister of accused No.1 and out of the wedlock, they have 2½ years old male child. Since there was galata on domestic matter, Renuka got angry and went to her parents house. When father of PW-1 i.e., PW-2 and one Koosappa went to bring Renuka back, the family members of Renuka abused them and sent them back. The complainant (PW-1) - the husband of Renuka did not go to bring back his wife Renuka stating that she herself has gone and she herself has to come back. That on 14.08.2008 at about 9.30 pm when PW-1 was standing in front of his house, accused No-1 the elder brother of Renuka along with his friends accused Nos.2 to 5 came in goods tempo holding long choppers and accused No.1 abused PW-1 in filthy language and

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slashed long chopper on the neck of PW-1 and he escaped from the blow. At that time, accused Nos.2 and 5 trespassed into the house and dragged out PW-2, the father of PW-1. Upon hearing the noise, the neighbours came. Accused Nos.1 and 2 threw long choppers. Accused No.1 made PW-2 to fall on the ground and assaulted him with hands and also bit on his stomach. At that time, PW3 Rathnamma, the aunt of PW-1 intervened to pacify the quarrel. At that time accused No.1 slapped her on her cheeks and accused Nos.3 and 4 kicked and trampled her. A case came to be registered against accused Nos.1 to 5, who are appellants herein in Crime No. 152/2008 of Chamrajnagar Rural Police Station. After investigation charge sheet came to be filed against the appellants/accused Nos.1 to 5 for the offences under Sections 143, 147, 148, 307, 323, 324, 448 and 504 read with Section 149 of IPC. The case came to be committed to the Sessions Court. The Sessions Court framed charges for the said offences. The prosecution has examined 12 witnesses as PW-1 to PW-12 and got marked 11

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documents as Ex.P-1 to Ex.P-11 and three Material Objects as MOs 1 to 3. The statement of the

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appellants/accused came to be recorded under Section 313 of Cr.P.C.

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After hearing the arguments on both sides, the trial Court framed the points for consideration and convicted the appellants for the offence punishable under Sections 143, 147, 148, 323, 324, 448, 504, 307 read with Section 149 of IPC. To the said judgment of conviction, order of sentence has been challenged by appellants/accused Nos.1 to 5.

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Heard the arguments of learned counsel for the

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appellants and learned High Court Government Pleader for the respondent-State.

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Learned counsel for the appellants wound contend that there was a matrimonial dispute between PW-1 and his wife Renuka and therefore, Renuka had gone to her parents house and PW-1 did not go to bring her

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back and therefore, it is alleged that enraged by that accused No.1 along with other accused came in a tempo and assaulted PWs-1 to 3. PW-1 is the brother-in-law of accused No.1 and there is no question of attempt to commit his murder as he is wife's husband and they have a child. The alleged act of accused No.1 slashing long

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chopper on the neck of PW-1 and he escaping is a concocted story. The seizure of MO-1 and MO-3 -long choppers have not been proved as the panchas PW-7 and PW-10 turned hostile. PW-1 has not sustained any injury in the alleged incident. The injuries sustained by PW-2 and PW-3 as per the wound certificates at Ex.P-5 and Ex.P-6 are simple injuries. He further contended that there are contradictions in the evidence of PWs1 to 3 and PWs 4 to 6, who are stated to be the eye- witnesses to the incident.

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As per the evidence of PWs 4 to 6, accused Nos.1 and 2 were caught on the spot and they were tied to a tree but as per the case of the prosecution, they were arrested on 18.08.2008. No specific overt act has been alleged against accused Nos.2 to 5. It is alleged that accused

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No.1 bit on the stomach of PW-2 but as per the wound certificates, there is no mention that the wound sustained by PW-2 is a bite wound. He submits that it is not possible to bite on the stomach. On looking to the evidence of PWs.1 to 6 and their cross-examination, the alleged act of accused No.1 slashing with long chopper on the neck of PW1 and he escaping, is not established and their evidence in that regard is not believable. If their would have been any intention on the part of accused No.1 to kill PW-1, he ought to have made further attempts to assault him with the long chopper. As PW.1 has not sustained any injury, the offence under Section 307 is not attracted. On that point, he places reliance on the decision of the Hon'ble Apex Court in the case of SAGAYAM vs. STATE OF KARNATAKA reported in AIR 2000 SC 2161 wherein it is held as under:

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"6. To justify conviction under this Section under S.307, IPC, it is not essential that bodily injury capable of causing death should have been inflicted. An attempt in order to be criminal need not be the penultimate act foreboding death. It is sufficient in

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law if there is present an intent coupled with some overt act in execution thereof, such act being proximate to the crime intended and if the attempt has gone so far that it would have been complete but for the extraneous intervention which frustrated its consummation. There are different stages in a crime. First intention to commit it; second preparation to commit it; third, an attempt to commit it. If at the third stage, the attempt falls, the crime is not complete but law punishes for attempting the same. An attempt to commit crime must be distinguished from an intent to commit it or preparation of its commission.

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7. ASI Rajanna P.W.2 was deputed to search the house of the appellant along with two other members of his staff. When he went to the house of the appellant along with the other officers, the accused tried to assault them. He somehow escaped from the assault. Again accused is said to have tried to pierce with a sword but he escaped that assault and caught hold of him but then he threatened that he would kill. This is all the evidence that have been given by the ASI which would only mean that there was only a threat to assault the said Rajanna but the overt acts attributed to him would not amount to attempt to murder, at best it can be

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one of attempt to assault but there is not even an injury upon the victim.

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8. A charge of this nature when there is not even an injury upon the victim cannot lead to an inference that there was any attempt to kill when the incident took place. It is possible that the accused confronted the ASI Rajanna but that by itself would not result in coming to the conclusion that it was an attempt to murder him’’.

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It is his further submission that there are

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contradictions in the evidence of the witnesses, the prosecution has failed to prove the offence alleged against them. If the Court comes to the conclusion that the appellants have committed the offence under Sections 143, 144, 147, 148, 324, 323, 448, 504 read with Section 149 IPC, then the Court can impose the sentence of the period already undergone by them and may enhance the fine amount.

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Learned High Court Government Pleader argued

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that the trial Court on proper appreciation of the evidence

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on record has rightly convicted the appellants. He has supported the reasons assigned by the trial Court. He further argued that evidence of PWs.1 to 6 is suffice to convict the appellants for the offence levelled against them. He contended that inflicting of bodily injury capable of causing death is not always necessary. Intention or knowledge can be ascertained from other circumstances. On that point he relied on the decision of the Hon'ble Apex Court in the case of R PRAKASH vs. STATE OF KARNATAKA reported in AIR 2004 SC 1812 wherein it is held as under:

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"9. 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, in some cases, be ascertained without any reference at all to actual wounds. The Section makes a distinction between the act of the accused and its result, if any.

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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. Therefore, it is not correct to acquit an accused of the charge under Section 307 IPC merely because the injuries inflicted on the victim were in the nature of a simple hurt".

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9. On these grounds, he sought for dismissal of the appeal.

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On the grounds made out and considering the arguments advanced, the following points arises for my consideration:

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(1) Whether the trial Court has erred in convicting the appellants/accused Nos.1 to 5 for offence punishable under Sections 143, 147, 148, 323, 324, 448, 504 read with Section 149 of IPC?

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(2) Whether the trial Court has erred in convicting the appellants/accused Nos. 1 to 5 for the offence punishable under Section 307 read with 149 of IPC?

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My answer to point No.1 is in the negative and

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point No.2 is in the affirmative for the following reasons:

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PW-1 is married to one Renuka - the younger

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sister of accused No.1. It is not in dispute that there was quarrel between PW-1 and his wife Renuka and she went to her parents house. She refused to go back when PW-2 and another went to her parents house. PW-1 did not go to bring her back and therefore, appellant No.1/accused No.1 was enraged against PW-1. As per the case of the prosecution, appellants/accused Nos.1 to 5 came in tempo to the house of PW-1 on 14.08.2008 at about 9.30 p.m. It is the evidence of PWs.1 to 6 that accused Nos.1 to 5 came in tempo and trespassed into the house of PW.1. As per the evidence of PW-1, accused Nos.1 and 2 were holding long choppers and accused No.1 slashed the long chopper on his neck and he escaped. The police seized the chopper - MO-1 produced by PW1 at the time of drawing the spot mahazar - Ex.P.2. The police also seized another chopper - MO3 produced by PW1 which has been given to him by one Madappa after three days of the incident. MO.1 has been seized on 16.08.2008 on the

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third day of the incident and MO3 - chopper has been seized on 23.08.2008. PWs.7 and 10 have been examined to prove the seizure of MO1 and MO3 - long choppers but they have not supported the case of the prosecution. Therefore, the prosecution has failed to establish the seizure of MO-1 and MO-3-the long choppers under Mahazars Exs.P.2 and 3 respectively.

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PW.2 has deposed regarding the slashing of

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long chopper by accused No.1 on the neck of PW1 and he escaped the same. PW3 has deposed that accused No.1 slashed with the chopper on the neck of PW1 and he escaped and ran away. PW4 has deposed that accused No.1 tried to assault PW1 with chopper, he escaped and ran away. PW5 has deposed that accused No.2 - Babu tried to assault PW1 with a long chopper and at that time, he took long chopper from accused No.2 and PW1 ran away from the spot. But in his cross examination after treating him as hostile, he has admitted the suggestion that accused No.1 tried to assault PW1 with chopper and

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he escaped and ran away. In the cross examination by the counsel for the accused, he again stated that accused No.2 tried to assault PW1 with long chopper but he escaped and the long was handed over to the police in the spot on the date of the incident at about 10 p.m. The evidence of PW.5 is in contradiction to the evidence of PWs.1 to 4. PW.6 has not stated with regard to accused No.1 slashing with long chopper on the neck of PW1 in his chief examination but after treating him hostile however, in the cross-examination he has admitted the suggestion that accused No.1 abused PW1 and tried to assault with long chopper but PW1 escaped. In the cross examination by the accused, he has stated that he was outside the house when accused No.1 tried to assault PW1. If accused No.1 had an intention to kill PW1, he ought to have chased PW1 and again made an attempt to assault him with the chopper. Looking to the evidence on record and the close relationship of accused No.1 and PW1, PW1 has not sustained any injury and even the other two witnesses i.e. PWs 2 and 3 have not been assaulted with long choppers

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by the accused, would go to show that accused were not having any intention to commit murder of PW1 or other witnesses. Even it is stated by PWs 1 to 6 that police came to the spot on the day of the incident and therefore, the seizure of MOs 1 and 3 - long choppers subsequently on 16.08.2008 and 23.08.2008 under Exs.P.2 and 3 alleged to be snatched from them at the time of accident appears to be doubtful. Therefore, the appellants entering the house of PW-1 holding long choppers with an intention to kill PW1 is doubtful. The evidence of PWs 1 to 6 only establishes that accused Nos.1 to 5 came in tempo and trespassed into the house of PW-1, assaulted PWs 2 and 3 and caused simple injuries. As per the evidence of PWs 1 to 6, accused No.1 bit on the stomach of PW2 and slapped PW3 on her cheek and caused simple injuries. Therefore, the evidence of PWs 1 to 6 regarding accused No.1 biting on the stomach of PW2 and slapped on the cheeks of PW3 is consistent. PWs 2 and 3 have not stated any overt acts of accused Nos.2 to 5 but they have stated their presence on the spot at the time of the incident. Even, PW-5 has

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not stated any overt acts of accused Nos.2 to 5 so also PW-6. Therefore, the evidence of PWs 1 to 6 is consistent with regard to accused No.1 biting on the stomach of PW2 and slapped PW-3 on her cheek. Even Exs.P.5 and 6 - wound certificates of PWs 2 and 3 would corroborate the said injuries sustained by PW2 on the stomach and PW3 on her cheek. The trial Court has erred in convicting the appellants/accused Nos.1 to 5 for offence under Sections 307 read with Section 149 IPC. Therefore, accused Nos.1 to 5 are required to be acquitted under Section 307 read with Section 149 IPC.

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The trial Court has rightly convicted the appellants/accused Nos.1 to 5 for offence under Sections 143, 147, 148, 324, 323, 448 and 504 IPC. The trial Court has imposed the maximum sentence on the appellants for offence under Sections 324, 448 and 504 IPC.

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Looking to the relationship between PWs 1 to 3

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and accused No.1, simple injuries sustained by PWs 2 to 3,

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no overt act against accused Nos.2 to 5, the sentence imposed by the trial Court on them is harsh and excessive and requires to be modified.

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Appellants 1 to 4/accused Nos.1 to 4 were in judicial custody for a period of 27 days (from 18.08.2008 to 15.09.2008) and for 20 days after passing of the impugned judgment (from 17.04.2012 to 07.05.2012). Appellant No.5 was in judicial custody for 20 days from the date of judgment i.e. 17.04.2012 to 07.05.2012. Therefore, appellants 1 to 4/accused Nos.1 to 4 were in judicial custody totally for a period of 47 days and appellant No.5/accused No.5 was in judicial custody for 20 days.

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In view of the close relationship of PWs 1 to 3 and accused No.1, no overt act against accused Nos.2 to 5, the sentence is modified to the period already gone by them in the custody for the offence under Sections 143, 147, 148, 324, 323, 448, 504 read with Section 149 IPC.

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In view of reduction of the sentence of imprisonment, fine imposed on them requires to be enhanced.

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In the result, the following:

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ORDER

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(i) Appeal is allowed-in-part.

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(ii) The conviction of the appellants 1 to 5/accused Nos.1 to 5 for offence under Sections 143, 147, 148, 323, 324, 448, 504 read with Section 149 IPC is confirmed.

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(iii) The sentence imposed on appellants/ accused Nos.1 to 5 for the said offence under Sections 143, 147, 148, 324, 323, 448, 504 read with Section 149 IPC is modified and reduced to the period of custody undergone by them.

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(iv) The fine imposed by the trial Court for the said offences is modified and enhanced by Rs.1,000/- for each of the offences on each of the appellants in view of the modification of the sentence of imprisonment.

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(v) The appellants/accused Nos.1 to 5 are acquitted for the offence under Section 307 read with Section 149 IPC.

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(vi) The order of the trial Court regarding running of the sentence concurrently is confirmed.

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(vii) The award of compensation out of the fine

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amount by the trial Court is confirmed.

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Sd/JUDGE

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BRN

Nandisha v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Nandisha v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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