Partly allowed

Murthy v. State of Karnataka

Karnataka HC22 Aug 2023CRL.A/51/2012

Case brief

AI extract

What is this about?

Appeal against conviction and sentence for offences under IPC and SC/ST (POA) Act. Conviction under Section 326 IPC altered to 325 IPC; conviction under Section 3(1)(x) of SC/ST (POA) Act set aside due to witness bias. Sentence modified.

What did the court decide?

Conviction under Section 326 IPC altered to 325 IPC. Conviction under Section 3(1)(x) of the Act set aside. Sentence for Section 504 IPC modified to one month imprisonment and fine.

Murthy Vs State of Karnataka — Cheque Dishonour | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND 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. 51 OF 2012

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BETWEEN:

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MURTHY S/O KRISNEGOWDA AGED ABOUT 28 YEARS R/AT KOTEGALA VILLAGE HUNSUR TALUK.

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…APPELLANT

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(BY SRI VEERANNA G TIGADI, ADVOCATE)

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AND:

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STATE OF KARNATAKA REPRESETNED BY ITS SPP HIGH COURT BUILDING BANGALORE - 560 001. THROUGH S.H.O HUNSUR RURAL POLICE STATION, HUNSUR TALUK, MYSORE DISTRICT.

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…RESPONDENT

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

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(BY SRI JAIRAM SIDDI, HCGP)

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THIS CRL.A. IS FILED U/S. 374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:24.12.11 PASSED BY THE VI ADDITIONAL S.J., AND SPL. JUDGE UNDER SC AND ST(POA) ACT, 1989, MYSORE IN SPL.C.No.31/11 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 341, 504, 326 OF IPC AND U/S 3(1)(X) OF SC AND ST (POA) ACT, 1989. AND THE APPELLANT/ACCUSED IS SENTENCED TO PAY FINE OF RS.200/- FOR THE OFFENCE P/U/S 341 OF IPC AND IN DEFAULT OF PAYMENT OF FINE, HE IS DIRECTED TO UNDERGO S.I. FOR TEN DAYS. AND THE APPELLANT/ACCUSED IS DIRECTED TO UNDERGO S.I. FOR SIX MONTHS, FOR THE OFFENCE P/U/S 504 OF IPC.

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

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JUDGMENT

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This appeal is filed against the judgment of conviction dated 23.12.2011 and order on sentence dated 24.12.2011 passed in Special Case No.31/2011 by the VI Additional District and Sessions Judge and Special Judge, Mysuru, convicting the appellant – accused for the offences punishable under Sections 341, 504 and 326 of the Indian Penal Code, 1860 (for short hereinafter referred to as “IPC”) and Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short hereinafter referred to as “the Act”).

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The appellant – accused has been sentenced to pay fine of Rs.200/-, in default, to undergo Simple Imprisonment for ten days for the offence under Section 341 of IPC; further sentenced to undergo Simple Imprisonment for six months for the offence under Section 504 of IPC; further sentenced to undergo Simple Imprisonment for two years and fine of Rs.3,000/-, in

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default, to undergo Simple Imprisonment for two months for the offence under Section 326 of IPC and further sentenced to undergo Simple Imprisonment for six months and to pay fine of Rs.500/-, in default, to undergo Simple Imprisonment for fifteen days, for the offence under Section 3(1)(x) of the Act.

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The factual matrix of the case is that; PW1 – Sri.Nagaesh, S/o Sri.Shivannanaika (complainant) is the resident of Kottegala village, residing with his wife and children in the house standing in the name of his mother which is abutting the house of Sri.Krishnegowda, father of the appellant – accused. There is a live-hedge in between the house of PW1 and Sri.Krishnegowda. There was a dispute between PW1 and the said Sri.Krishnegowda in respect of the said fence, since four years prior to filing of the complaint. Three days earlier to the incident, the appellant – accused has cut the branches of one jungle wood tree grown in the said live-hedge in the absence of PW1 and at that time, when the wife of PW1 enquired, the

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appellant – accused abused her in filthy language. Thereafter, PW1 enquired one Sri.Venkatesh Naika. He told that the tree belongs to PW1 and he could cut and take the same. A day prior to the date of the incident, at about 6.00 pm., PW1 cut the branches of the said tree. on the next day ie., on 13.02.2011 at about 7.30 pm, when PW1 was coming from the tank towards his house, the appellant – accused restrained him, abused him taking his caste name and enquired as to why he has cut the tree situated in the live-hedge and abused PW1 in filthy language. When PW1 requested the appellant – accused not to abuse him, the appellant – accused went and brought chopper from his house and came to assault PW1. At that time, father of the appellant – accused and brothers of the appellant – accused also came to assault PW1. One Sri.Chandrappanaika snatched the chopper from the hands of the appellant – accused. The appellant – accused picked up a stone from the ground and threw it at PW1 and it hit the head of PW1, as a result, he sustained bleeding injury. One Sri.Venkatesh Naika,

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Sri.Mancha Naika and Sri.Swamy Naika came and pacified the quarrel. PW1 was taken to Government Hospital, Hunsur. The Police Sub-Inspector who received the memo from the Government Hospital, Hunsur, went to the Government Hospital, Hunsuru and recorded the statement of PW1 and registered the case. After completing the investigation, charge sheet came to be filed against this appellant – accused for the offences punishable under Sections 341, 504, 326 of IPC and Section 3(1)(x) of the Act.

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The prosecution examined 13 witnesses as PWs.1 to 13 and got marked Exs.P1 to P18 and MOs.1 to 3. The statement of the appellant – accused has been 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 appellant – accused for the offences under Sections 341, 504, 326 of IPC and Section 3(1)(x) of the Act. The

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said judgment of conviction and order on sentence has been challenged by the appellant – accused in this appeal.

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Heard the arguments of learned counsel for the appellant – accused and learned High Court Government Pleader for the respondent – State.

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Learned counsel for the appellant – accused argued that there is a dispute between PW1 and the family members of the appellant – accused regarding the boundary situated in between their houses. The alleged incident has taken place with regard to the said boundary dispute, as PW1 – complainant cut the branches of the tree situated on the boundary and not for the reasons that PW1 belongs to the Scheduled Caste. The Author of Ex.P16 – caste certificate has not been examined. He further argued that PW1 is the injured and PWs.2 to 6 and 8 are the eye witnesses to the incident and he is not disputing their evidence with regard to the restraining PW1 and assault by the appellant – accused, by throwing the stone at the head of PW1. He raised two points of

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arguments. One is with regard to the stone used by the appellant – accused to cause injury to PW1 and the stone is handful stone cannot be termed as a ‘dangerous weapon’ to attract the offence under Section 326 of IPC. It is further argued that at the most, the offence which attracts is under Section 325 of IPC, as the stone is not a dangerous weapon.

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He has not disputed the injury sustained by PW1 is grievous injury. He further argued that the appellant – accused was 28 years old at the time of the incident, now 12 years have elapsed. He is having wife and children and there is no minimum sentence for the offence under Section 325 of IPC and prays for imposing the sentence of imprisonment for one day and imposing heavy fine. To substantiate his contention that the stone is not a dangerous weapon, he placed reliance on the decision of the Hon’ble Apex Court in the case of Mathai Vs. State of

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Kerala reported in (2005) 3 SCC 260 .

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The second limb of his argument is that the alleged incident has taken place as there is bounded dispute of cutting of branches of the tree by the complainant – PW1 and not for the reason that the complainant belongs to the Scheduled Caste. The eye witnesses examined by the prosecution namely, PWs.2 to 6 and 8 are the caste-men and the relatives of PW1 and no other independent witnesses have been examined. PW1 has initially filed a complaint against five persons stating their involvement and abuse by this appellant – accused and another by name Sri.Nanjegowda, but the charge sheet has been filed based on the statement of other witnesses only against this appellant – accused which shows that the version of PW1 regarding the abuse taking the caste name is not reliable. Even the evidence of other witnesses namely PWs.2 to 6 and 8 cannot be relied as they are caste-men and relatives of PW1. He prays for acquittal of the appellant – accused under Section 3(1)(x) of the Act.

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Per contra , learned High Court Government Pleader

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for the respondent – State argued that the Trial Court on proper appreciation of the evidence on record has rightly convicted the appellant – accused. He has supported the reasons assigned by the Trial Court. He further argued that the evidence of PWs.2 to 6 and 8 is sufficient to convict the appellant – accused for the offences alleged against him. On these grounds, he sought for dismissal of the appeal.

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On the grounds made out and considering the arguments, the following points would arise for my consideration;

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“(i) Whether the Trial Court erred in convicting the appellant – accused for the offence under Section 326 of IPC, instead of the offence under Section 325 of IPC?

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(ii) Whether the Trial Court has erred in convicting the appellant – accused for the offence under Section 3(1)(x) of the Act?”

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My answer to the above points is in the affirmative, for the following reasons;

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PW1 and the appellant – accused are the neighbours and there is a boundary dispute between them. As per the averments of Ex.P1 – complaint, three days prior to the incident, the appellant – accused has cut the branches of the tree situated on the boundary and at that time, wife of PW1 has questioned the same and the appellant – accused has abused her in filthy language. The said aspect goes to show that there is a boundary dispute between PW1 and his family members and the appellant – accused and his family members and there used to be quarrels between them. Even the said quarrel has taken place, three days prior to the incident, the wife of PW1 had not filed any complaint against the appellant – accused.

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PW1, a day prior to the date of incident in the evening at 6.00 pm has cut the tree situated on the boundary. On the next day morning, at about 7.30 am., the alleged quarrel has taken place when the appellant –

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accused questioned PW1 – complainant regarding why he has cut the tree situated on the boundary. At that time, this appellant – accused abused PW1 touching his caste and threw a stone on his head and it caused injury. The evidence of PWs.2 to 6 and 8 clearly establishes that the appellant – accused restrained PW1 when he was proceedings on the road and quarreled with him and abused him, threw a stone and it hit his head, as a result, he sustained injuries. Ex.P6 is the wound certificate which reveal that the injury sustained by PW1 is grievous injury. The doctors who have examined PW1, who has taken C.T.Scan and who has treated PW1 in K.R.Hospital are examined as PWs.7 and 12 respectively. Their evidence also establishes that PW1 has sustained grievous injury.

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The assault said to have been made by this appellant

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– accused is by a stone thrown at the head of PW1 at a distance. In the evidence of the prosecution, it has come that the appellant – accused took the stone fallen on the ground and threw it on PW1. The said stone has been

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seized from the spot under Mahazar – Ex.P5. The said stone is stated to be a handful stone. The measurement of the said stone is not mentioned in the said mahazar. Even the said stone has been sent to PW7 - the doctor who examined PW1, who has opined as per Ex.P7 stating that it can cause injury sustained by PW1. PW7 – doctor also not stated the measurement of the said stone.

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Learned counsel for the appellant has contended that the stone used by the appellant – accused to cause injury to PW1 is not a dangerous weapon. It is not in dispute that the said stone with which the appellant – accused caused injury on the head of PW1 is a handful stone, which the appellant – accused had taken from the ground as it has fallen there. Whether a stone is a dangerous weapon or not has been considered by the Hon’ble Apex Court in the case of Mathai Vs. State of Kerala reported in (2005) 3 SCC 260 , wherein it has observed thus;

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“16. The expression "any instrument which, used as a weapon of offence, is likely to cause death" has to

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be gauged taking note of the heading of the Section. What would constitute a 'dangerous weapon' would depend upon the facts of each case and no generalization can be made.

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17. The heading of the Section provides some insight into the factors to be considered. The essential ingredients to attract Section 326 are : (1) voluntarily causing a hurt; (2) hurt caused must be a grievous hurt; and (3) the grievous hurt must have been caused by dangerous weapons or means. As was noted by this Court in State of U.P. v. Indrajeet there is no such thing as a regular or earmarked weapon for committing murder or for that matter a hurt. Whether a particular article can per se cause any serious wound or grievous hurt or injury has to be determined factually. As noted above the evidence of the doctor (PW 5) clearly shows that the hurt or the injury that was caused was covered under the expression 'grievous hurt' as defined under Section 320 IPC. The inevitable conclusion is that a grievous hurt was caused. It is not that in every case a stone would constitute a dangerous weapon. It would depend upon the facts of the case. At this juncture, it would be relevant to note that in some provisions e.g. Sections 324 and 326 expression "dangerous weapon" is used. In some other more serious offences the expression used is "deadly weapon" (e.g. Sections

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397 and 398). The facts involved in a particular case, depending upon various factors like size, sharpness, would throw light on the question whether the weapon was a dangerous or deadly weapon or not. That would determine whether in the case Section 325 or Section 326 would be applicable.

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18. In the instant case considering the size of the stone which was used, as revealed by material on record, it cannot be said that a dangerous weapon was used. Therefore, the conviction is altered to Section 325 IPC. No hard - and - fast rule can be applied for assessing a proper sentence and a long passage of time cannot always be a determinative factor so far as sentence is concerned. It is not in dispute that a major portion of the sentence awarded has been suffered by the appellant. On the peculiar facts of the case we restrict it to the period already undergone.”

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The stone used by the appellant – accused which caused injury to PW1 is a handful stone. Considering the said aspect, it cannot be said that it is a dangerous weapon. Therefore, the conviction of the appellant – accused for the offence under Section 326 of IPC requires to be altered to Section 325 of IPC. The punishment

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provided under Section 325 of IPC is imprisonment which may extent to seven years. There is no minimum sentence prescribed for the offence under Section 325 of IPC. Considering the age of the appellant – accused and lapse of twelve years and as the appellant – accused is having dependents to look after, one day sentence requires to be imposed on him with fine of Rs.1,50,000/-, in default to undergo Simple Imprisonment for three months for the offence under Section 325 of IPC.

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The incident has taken place with regard to cutting of the branches of the tree by the complainant (PW1). The said branch of the said tree is situated on the boundary in between the houses of the appellant – accused and PW1. There is a dispute regarding the boundary of the appellant – accused and PW1 and there used to be quarrels between them in that regard. Even three days prior to the date of incident, a quarrel had taken place between the accused – appellant and wife of PW1, when this appellant – accused cut the branches of the said tree and no complaint has

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been filed in that regard by the wife of PW1. The abuse taking the caste name by this appellant – accused is not believable, as PW1 not only stated that this appellant – accused abused him taking his caste name and so also, another person by name Sri.Krishnegowda against whom no charge sheet is filed even though the case is registered against the said Sri.Krishnegowda. The said Krishnegowda is the father of this appellant – accused. The very act of filing the complaint by this PW1 against this appellant – accused, Sri.Krishnegowda and three others itself show that he intends to take revenge against this appellant – accused and his family members with regard to the said boundary dispute. The other witnesses namely PWs.2 to 5 are the relatives of PW1, PW6 is the brother of PW1 and PW8 is the wife of PW1. Their evidence with regard to abuse by this appellant – accused taking the caste name in filthy language cannot be relied on, as they are caste-men / relatives of PW1.

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Without considering these aspects, the Trial Court erred in convicting the appellant – accused for the offence under Section 3(1)(x) of the Act. Therefore, the conviction of the appellant – accused for the offence under Section 3(1)(x) of the Act, requires to be set-aside.

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The appellant – accused has been sentenced to undergo imprisonment for six months for the offence under Section 504 of IPC. The punishment provided for the offence under Section 504 of IPC is imprisonment of either description of a term which may extend to two years or with fine or with both. As the quarrel took place between PW1 and the appellant – accused is with regard to the boundary dispute of cutting the branches of the tree situated on the boundary, it is sufficient, if a sentence of fine alone is imposed for the offence under Section 504 of IPC.

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For the reasons stated above, the conviction and sentence of the appellant – accused for the offence under Section 341 of IPC requires to be upheld. The sentence

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for the offence under Section 504 of IPC requires to be modified, imposing the sentence of fine of Rs.10,000/-, in default to undergo Simple Imprisonment for fifteen days. The conviction of the appellant – accused for the offence under Section 326 of IPC is altered to Section 325 of IPC.

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In the result, the following;

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ORDER

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(i) The appeal is allowed in part .

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(ii) The order of conviction and sentence for the

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offence under Section 341 of IPC is affirmed.

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(iii) The order on sentence for the offence under Section 504 of IPC is modified, imposing fine of Rs.10,000/-, in default, the appellant – accused is sentenced to undergo Simple Imprisonment for fifteen days.

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(iv) The conviction of the appellant – accused for

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the offence under Section 326 of IPC is altered to Section 325 of IPC and the appellant – accused

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is sentenced for one day (the appellant – accused has already undergone the said sentence of one day, after passing of the judgment) and with fine of Rs.1,50,000/-, in default to undergo Simple Imprisonment for six months.

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(v) The conviction of the appellant – accused for the offence under Section 3(1)(x) of the Act is set-aside and the appellant – accused is acquitted of the said offences.

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(vi) The appellant – accused shall deposit the fine amount, excluding the fine amount already deposited, within three weeks from this day. Out of the said fine amount, a sum of Rs.1,50,000/- is ordered to be paid to PW1 as compensation under Section 357 of Cr.P.C.

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