Partly allowed

Sri. Sathisha v. State of Karnataka by

Karnataka HC19 Sept 2024CRL.A/417/2014

Case brief

AI extract

What is this about?

High Court criminal appeal against conviction for assault and criminal intimidation. Court upheld guilt based on common intention and evidence of injured witness. Conviction confirmed but probation granted with bond and additional compensation fine imposed.

What did the court decide?

Conviction upheld; probation granted with 2-year bond for good behavior; additional fine of Rs. 10,000/- awarded as compensation.

Sri. Sathisha Vs State of Karnataka by — Cheating and Forgery | Karnataka HC (2024)

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NC: 2024:KHC:38517 CRL.A No. 417 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR

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CRIMINAL APPEAL NO. 417 OF 2014 (C)

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BETWEEN:

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SRI. SATHISHA S/O CHENNAPPA, AGED ABOUT 30 YEARS, BAGENAHALLI VILLAGE, KUNIGAL TALUK, TUMKUR- 572 130.

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…APPELLANT

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(BY SRI. PUNITH C., ADVOCATE)

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AND:

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STATE OF KARNATAKA BY KUNIGAL POLICE TUMKUR-572130

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…RESPONDENT

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Digitally signed by SHAKAMBARI Location: HIGH COURT OF KARNATAKA

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(BY SRI K. NAGESHWARAPPA, H.C.G.P.)

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THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:2/3.4.14 PASSED BY THE PRL. DIST. AND S.J., TUMKUR IN S.C.NO.5/13 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 323, 324, 504 R/W 34 OF IPC.

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THIS CRIMINAL APPEAL HAVING BEEN RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT, DELIVERED/PRONOUNCED THE FOLLOWING:

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CORAM: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR

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CAV JUDGMENT

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(PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR)

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The appellant who was accused No.3 in Session Case No.5/2013 has questioned the judgment of his conviction and order of sentence dated 02.04.2014 passed by the Prl. District and Sessions Judge, Tumkur. The appellant was found guilty of committing the offences under Sections 323, 324 and 504 R/W 34 of IPC and he was sentenced to undergo simple imprisonment for a period of 6 months and to pay fine of Rs.1,000/- for the offence punishable under Section 323 R/w 34 of IPC, so also sentenced to under simple imprisonment for a period of 1 year 6 months and to pay fine of Rs.2,000/- for the offence punishable under Section 324 R/w 34 of IPC and he is sentenced to undergo

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1 year simple imprisonment and pay fine of Rs.1,000/- for

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the offence punishable under Section 504 R/w 34 of IPC along with other accused persons.

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The parties to this appeal are referred to as per

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their rank before the Trial Court for convenience.

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The brief facts leading to this appeal are as under:

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That the Police Sub Inspector of Kunigal Police

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Station in Tumkur District filed a charge sheet against accused No.1 to 4 by registering the Crime No.265/2012 for the offences punishable under Section 323, 324, 307, 504 R/w 34 of IPC, based upon a complaint being filed by one Srinivasamurthy the injured when he was in the hospital as per Ex.P1. It is the case of the prosecution, that at 6.15 p.m. on 20.08.2001 when PW7-Channayya S.Hiremath the then Police Sup Inspector of Kunigal Police Station was in the police station, he received a telephonic message that one Srinivasamurthy the injured was admitted in the hospital with a history of assault on him. Immediately PW.7 went to the hospital and recorded the statement of injured Srinivasamurthy. The said

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complainant narrated about the incident stating, that his brother S.V.Dasegowda i.e. PW2 had been appointed as

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the Secretary for the fish and fisherman’s society for the year 2014-15. The Government has granted permission to catch the fish to the said society. It is alleged that the resident of Chennappana Palya i.e. Gurumurthy his brother Chandru so also Satish i.e. present appellant of Bagenahalli village and also one Narayana Agni i.e. accused No.4 resident of Kunigal City used to catch the fish illegally by stealing the fish. Therefore on behalf of

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the said society they were advised not to steal the fish. Because of this advise, they took away their fish nets. This fact was informed to one Kariyanna Gowda @ Raja by the accused No.1. It is alleged that there was a request to return the said fish nets, but the said Kariyanna Gowda did not return the same.

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It is alleged, that on 20.02.2012 at 07.00 a.m. in

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the morning hours, the society people came to know about taking away of the fish nets from the pond. Therefore, the

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complainant went to Kariyanna Gowda @ Raja and informed about the said fact. Even complainant informed that he is going to file police complaint against them. The said Kariyanna Gowda told that, he will call all the four accused persons to his house and advise them. Even the complainant was also asked to come the house of the said Kariyanna Gowda. Therefore, complainant and President of the said society by name Venkatesh, Secretary i.e. the brother of the complainant Dasegowda together went near the house of Kariyanna Gowda at 4.00 p.m. All the four accused also came there. When Kariyanna Gowda enquired them that why they have taken away the fish nets, at that time accused started abusing the complainant and others in filthy language stating that whether the said pond belongs to his father and unnecessarily the complainant is making allegations that these accused persons are stealing fish from the said pond. By saying so, it was told by the accused that they are going to kill the complainant. In that process, accused Chandru, Satish and Narayana caught hold the complainant by

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hugging him forcibly. Accused Gurumurthy in order to kill the complainant by using the iron rod assaulted the complainant on his head and caused bleeding injuries on his person. The other accused assaulted the complainant by using their hands and also treaded him. By that time, Venkatesh and Dasegowda who accompanied the complaint tried to catch hold the accused persons. But accused ran away from the said place. With these allegations, the injured complainant gave his statement which was reduced in to writing by PW7. He came to the police station registered the crime in the aforesaid crime number for the aforesaid offences and set the criminal law in motion. On completion of investigation, the PSI of Kunigal Police Station filed a charge sheet against the accused for the offences punishable under Section 323, 324, 307, 504 R/w Sec.34 of IPC.

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Before the learned Trial Court, to bring home the

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guilt of the accused, prosecution in all examined 9 witnesses from PW1 to PW9 and got marked Ex.P1 to

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Ex.P10, so also MOs No.1 to 4 and closed prosecution evidence. Thereafter, the present appellant and other accused were questioned under Section 313 of Cr.P.C. so as to enable them to answer the incriminating circumstances appearing in the evidence of the prosecution. They denied their complicity in the crime and did not choose to lead any defence evidence.

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The learned trial Court on hearing the arguments and on evaluation of the evidence lead by the prosecution found the present appellant guilty of the aforesaid offences

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and convicted and sentenced as stated supra. So far as other accused No.1, 2 and 4 are concerned, there is no material that they have preferred an appeal. The present appellant is now challenging the impugned judgment of his conviction and order of sentence by preferring this appeal.

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The learned counsel for the appellant/accused No.3 with all vehemence submits that, the allegations against appellant is that he catch hold the complainant

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and accused No.1 assaulted the injured. The incident had taken place at 4.45 p.m. and within 50 minutes the injured went to the hospital. At 6.15 p.m. the PSI Kunigal Police Station went to the hospital and recorded the statement of the complainant. There is a delay in filing the complaint. He further submits that the evidence placed on record by the prosecution suffers from material particulars. The medical evidence is against the evidence placed on record by the prosecution. The report of the forensic laboratory itself is false. He further submits that from the evidence

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of PW2 it shows that he has changed the scene of offence itself. Except the bald statement of the complainant and other witnesses, there is no evidence placed on record by the prosecution. He further submits that no such incident

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as urged by the complaint has taken place. Therefore, in view of the contradictions, omissions and discrepancies in the evidence of the prosecution witnesses, the whole story

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of the prosecution cannot be accepted as the true facts being stated by the witnesses. He submits that as there is no involvement of appellant/accused No.3 in the

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commission of crime, he prays to set aside the impugned judgment and acquit him.

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As against the submission, the learned HCGP

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submits that, in a case of present nature where injured has spoken about the incident of assault on him by the accused persons it has to be accepted. There are allegations against the present appellant/accused No.3 that, because of questioning by Kariyanna Gowda with regard to the stealing of the fish from the pond, at that

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time the all accused No.1 to 4 started abusing the complainant in filthy language. This present appellant catch hold the complainant/injured and it was accused No.1 who assaulted the complainant by using iron rod and there was an attempt to kill the complainant. He submits that very conduct of the appellant being the party to the said incident shows that, all these accused No.1 to 4 in furtherance of their common intention committed the offence. The active participation of accused No.3 in catching hold the complainant is duly stated by the

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complainant. He being the eye witness to the said accident has noticed the presence of all these accused persons in the commission of the crime including the appellant. It is not the case of the defence that, this appellant is a stranger to the complainant. Although while there was advise by the society, not to steal fish from the pond as because the said fishing rights were given to the society. But even then, when questioned about stealing of the fish from the pond, these accused persons having been enraged about the questioning of stealing of fish have committed the said offences. In support of his submission, he relied upon the evidence placed on record by the prosecution both oral and documentary.

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I have given my anxious consideration to the arguments of both the sides. Meticulously perused the records.

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The only point that would arise for my

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consideration is:

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“Whether the learned trial Court has committed

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as illegality and infirmity in finding the appellant/accused No.3 guilty of committing the offences”?.

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Before adverting to the other aspects of the case, let me analyze certain admitted facts between both the sides. It is not in dispute that, the brother of the complainant Dasegowda was elected as a Secretary to the said society. The said society was granted with a permission by the Government giving fishing rights in the pond situated at Kunigal.

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It is the specific allegation of the prosecution that these accused No.1 to 4 used to steal the fish without the knowledge of the said society. Therefore, the complainant and others have warned the accused No.1 to 4. Even without the knowledge of the society, these accused No.1 to 4 have taken away the fishnets so kept in the said pond. Though there was a request to return the

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same, but the accused No.1 to 4 did not return. This fact was conveyed to Kariyanna Gowda and he advised the accused No.1 to 4 to return the fishnets. But even then, they did not return. It is alleged that, on the date of incident, as requested by the society, the said Kariyanna Gowda called the complainant his brother Dasegowda and the president of the said society, so also the accused No.1 to 4 near his house. It was 4.30 p.m. at that time. When there was an enquiry with regard to the stealing of the fish from the said pond of Kunigal, at that time the accused No.1 to 4 in furtherance of their common intention started abusing in filthy language and assaulted the complainant by using iron rod. It was accused No.1 assaulted the complainant by using iron rod. The present appellant and other accused persons caught hold the complainant by hugging him forcibly. When the persons accompanying the complainant tried to catch hold the accused persons,

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they ran away from the said place. The complainant because of the assault on him had sustained bleeding injuries on his head. Even these accused persons

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including the appellant had assaulted the complainant by

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beating him with hands and treaded him.

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Thus, it is alleged by the prosecution that, these accused persons in furtherance of their common intention committed the offence against the complainant.

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Section 34 of the Indian Penal Code speaks of

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“Acts done by several persons in furtherance of a common intention. The definition of Section 34 speaks that, when a criminal act is done by several persons in furtherance of their common intention, each of such persons is liable for that act in the same manner as if it were done by him alone”. Thus, the provision of Section 34 of IPC can be applied by taking recourse to Section 34 that, the finding has to be given by the Court with regard to the assailant is concerned and he should have a common intention with other accused which is in restoration of such recourse to

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this Section 34. So to say, to establish the common intention of several persons so as to attract the mischief of

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Section 34 of IPC, the following two fundamental facts have to be established. (i) common intention to commit an offence and (ii) participation of the accused in the commission of the offences.

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If the above two ingredients are satisfied, even overt act on the part of some of the persons sharing the common intention was held to be not necessary. A finding that the assailant concerned had a common intention with the other accused, is necessary for taking resort to Section

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(Sunny Kapoor V/s State (U.T. of Chandigarh), reported in AIR 2006 SC 2242.

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It is settled position of law that, Section 34 of

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IPC does not create a distinct offence and it is with the participation of the accused that the intention of committing the crime is established when Section 34 of the IPC is attracted. To rope in a person with the aid of Section 34 of the IPC, the prosecution has to prove that, the criminal act was done by the actual participation of

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more than one person and that act was done in furtherance of common intention of all engaged in prior concert.

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In a case of present nature, direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances.

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The provisions of Section 34 of IPC has been

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enacted on the principle of joint liability in doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of this section is, the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34, if such criminal act is done in furtherance of common intention of the persons who join in committing the crime.

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Keeping this position of law in mind, let me discuss the evidence placed on record by the prosecution that, whether prosecution is able to prove the offence against the present appellant accused No.3.

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It is the definite case of the prosecution that, from the said pond except the said sangha nobodies was permitted to catch the fish. But even then, these accused No.1 to 4 used to steal the said fish and when enquired, they took away the fishnets without informing anybody much less the said society. When Kariyanna Gowda PW4 informed the accused persons to return the said fishnets but accused did not. It is alleged that, on 20.8.2012 it was revealed to the complainant that, the accused had taken away the said fishnets. They have no intention to lodge any complaint against the accused persons as requested by the Kariyanna Gowda-PW4. Accordingly, on that day he called both complainant, secretary, as well as President of the society and also the accused persons near his house. When eqnuired, at that time all these accused

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persons assaulted the complainant by using a iron rod. The present appellant catch hold the accused forcibly by hugging him and accused No.1 by using iron rod assaulted him. So also the present appellant assaulted by using his hands and legs.

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These factual allegations have been stated by the complainant in his evidence on oath. He is specific with regard to the filing of the complaint when he was in the hospital under treatment. He identified Ex.P1 as the complaint filed by him. Even he identified the cloths being worn by him at the time of incident which are marked at MOs No.1 to 3. He identified the Ex.P2 the orders issued to the Society for giving fishing right. Even he identified all the accused persons.

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Coupled with that, PW2 Dasegowda the brother of the complainant and as well as Secretary of the society have come before the Trial Court and have spoken in line with the evidence of PW1 in material particulars. They

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speak about the incident that has taken place so also PW4. He says, himself and Venkatesh went to the house of the Kariyanna Gowda and at that time all the accused were present. They started abusing in filthy language and accused No.1 by using the iron rod assaulted the complainant Srinivasamurthy on his head. The other accused caught hold the complainant and they also assaulted by using the hands and legs. Likewise PW3Venkatesh also speaks in material particulars. They are the eye witnesses to the said incident. If the evidence of

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these PW1 to PW3 is scrupulously perused, the actual participation of all the accused persons in assaulting the complaint is duly stated by them in material particulars.

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Though, these PW1 to PW3 were directed with severe cross examination but nothing worth is elicited in the cross examination. Further the Kariyanna Gowda is none else then the mother-in-law of accused No.1 and 2 as per the evidence placed on record. It was he who tried to advise the accused persons, but accused did not heed to his

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request. But this PW4 has not supported the case of the prosecution in material particulars.

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PW5-Hanumanthayya was the seen of offence pancha. When the panchanama was conducted, Dasegowda PW2 was very much present. In his presence MOs.1 to 3 were seized by the police. He identifies them so also signatures on the panchanama as per Ex.P3. Though he has been cross examined at length by the defence but nothing worth is elicited. From the evidence of PW5-Hanumanthayya, the panchanama Ex.P3 is duly proved.

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The vital witness is PW6- Dr.Srinath who medically examined the complainant. According to his evidence, at 10.12 p.m. on 20.08.2012, he examined injured Srinivasamurthy who was admitted to the hospital with a history of assault. He noticed the following injuries as stated in Ex.P6.

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i) Sustained cut lacerated wound 8 x 1 cm over right front parietal region.

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ii) Hematoma over left front parietal region.

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iii) Abrasion 2 x 2 cm over left third toe.

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Thus, according to him, the injuries so stated in Ex.P6 are simple in nature. Though he has been cross examined, but he is specific that, by assaulting a person with iron rod, the said injuries so noticed in Ex.P6 are possible.

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PW7 was the PSI at the relevant time and he

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recorded the statement of the complainant on getting the information with regard to the assault on the person of the complainant. Based upon the said complaint Ex.P1, he registered the crime in Crime No.265/2012 and set the criminal law in motion. He conducted the investigation. To disprove the evidence of this PW7 nothing worth is elicited.

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PW.8- V.M.Guruprasad was the Police Sub

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Inspector at the relevant time and he too has conducted part of the investigation and filed the charge sheet. He denied all the suggestions directed by him.

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PW.9- Dr. B.R.Susheela was the doctor at

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Kunegal Government Hospital. Initially it was she who medically examined the complainant at 4.45 p.m. She noticed the lacerated wound on parietal region on complainant’s head. Though she also has been cross examined, she has withstood the test of cross examination. She opines that by using MO No.1, if a person is assaulted, the injuries so stated are possible. This fact is not denied by the defence.

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On scruples reading of the entire evidence of the prosecution witnesses, it is very much clear that, the motive for the crime was, when the complainant enquired the accused persons that, why they are stealing the fish from the pond at Kunegal, they took away the fishnets.

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Through the help of Kariyanna Gowda, the relative of accused No.1 and 2, they tried to advise the accused persons. But on the date of incident when Kariyanna Gowda called the accused No.1 to 4 as well as complainant his brother and president of society and advised, at that time, the said incident had taken place. The learned trial Court has evaluated the evidence placed on record by the prosecution. Especially evidence of PW.1, PW.2 and PW.3 being the injured and eye witnesses specifically prove about the threat given by the accused persons. It is

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specific evidence of PW1 to PW3 that, these accused No.2, 3 and 4 caught hold the complainant PW1 by hugging and it was accused No.1 assaulted the complainant on his head. This specific evidence spoken to by these PW1 to PW3 is not properly denied in the cross examination. So in a case present nature when injured himself has identified the accused persons and has stated about the role of each accused, it is sufficient. It is injured who is the best witness in criminal case. It is not the case of the accused that, this present appellant is a stranger to the

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complainant. The complainant was well acquainted with the accused-appellant. So as held by the Apex Court and this Court in catena of judgments, that injured are the best witnesses. The Hon’ble Supreme Court of India in a judgment in case of Jarnail Singh v. State of Punjab, reported in (2009) 9 SCC 719 , which has been referred by the trial Court envisages and laid down the law that, “the evidence of injured witness cannot be given up lightly”. Here the injured has identified the assailants on him. The direct allegation against present appellant is that he caught hold the complainant by hugging him forcibly. Therefore, when graphic account of the incident has been spoken to by the injured and his evidence is corroborated

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by the evidence of PW2 and PW3 who were the eye witnesses, this itself is sufficient to prove the guilt of the accused. So in view of mandatory provisions of Section 34 of the IPC, the actual participation of the accused is duly proved in accordance with law. That means, all these accused No.1 to 4 had a common intention to commit the offence against the complainant. This appellant-accused

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No.3 actively participated in the commission of crime

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along with other accused No.1, 2 and 4. Thus, the ingredients of Section 34 of IPC are duly proved in accordance with law. The law laid down by the Hon’ble Supreme Court of Indian in a case of present nature stated supra is directly applicable to the present facts of the case.

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The complainant had suffered the bleeding

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injuries and the said fact has been spoken by the doctor of Government Hospital. So also the other hospital were the complainant has been taken treatment. The evidence of the doctor is corroborative in nature with that of the evidence of eye witnesses. Therefore, from the evidence spoken to by the witnesses examined by the prosecution, it is duly proved that, appellant who was accused No.3 actively participated in the commission of the crime and in furtherance of the common intention, these accused No.1 to 4 have committed the offence. That means, the actual participation of the present appellant is duly proved in accordance with law. Rightly, the learned trial Court has

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found the accused guilty for the aforesaid offences. I do not find any factual or legal error in coming to such conclusion by the trial Court. In threadbare, the learned Trial Court discussed the evidence and given a concrete finding about the participation of the present appellant as accused No.3 in the commission of crime. Therefore, no grounds have made out by the appellant to interfere into the well considered judgment of the trial Court. Hence, there is no force in the submission of the counsel for the appellant.

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So far as sentence is concerned, the said incident had taken place on 20.08.2012 at 6.15 p.m. Based upon that the criminal trial was conducted in S.C.No.5/2013. Already 12 years have been lapsed till date from the date of offence. The present appellant/accused No.3 must have suffered mentally, financially because of the pendency of the criminal case. As on the date of passing the final order, his age was shown as 30 years in the final order. Now he must have

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crossed 42 years. It is submitted by the appellant’s counsel that, appellant is the only bread earner in the family and if the appellant is sent to custody his whole family will be deprived of their livelihood. Taking into consideration the nature of offence for which the appellant/accused No.3 is found guilty and also the age of the criminal case from 2012 onwards, if some leniency is shown, it would meet the ends of justice.

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The appellant was found guilty for the offences punishable under Sections 323, 324 and 504 of IPC. Therefore, if the appellant/accused No.3 is extended the benefit of a Probation of Offenders Act, it would meet ends of justice. So also, if the appellant is directed to pay some more fine amount and in turn if the said amount is paid to the complainant-injured as compensation as required under Section 357 of Cr.P.C, it would also meet the ends of justice. Therefore, judgment of conviction and order of sentence passed by the trial Court for the offences under Section 323, 324, 504 R/w 34 of IPC is confirmed.

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However, the appellant /accused No.3 is extended the benefit of Probation of Offenders Act. The appellant /accused No.3 is directed to execute the bond for good behaviour for a period of 2 years and he is directed to pay further fine of Rs.5,000/- to be paid to the complainant as compensation. The appellant shall deposit the same fine amount before the trial Court within one month from the date of this order.

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The trial Court is directed to take the bond for

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good behaviour of the appellant/accused No.3 for a period of 2 years.

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Further the Probation Officer of Tumkur District is directed to keep a watch on the activities of the appellant No.3 for a period of 2 years and submit a periodical report, to the Trial Court.

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Resultantly, I pass the following.

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ORDER

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i) Appeal is allowed in part.

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ii) The impugned judgment of conviction in

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Session Case No.5/2013 passed by the Prl. District and Sessions Judge, Tumkur for the offences under Section 323, 324,

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504 R/w 34 of IPC against appellant/accused no. 3 is hereby confirmed. However, appellant is given, benefit of Probation of Offenders Act, 1958 with a direction to execute a bond for good behavior for two years with two sureties for the likesum subject to the satisfaction of the trial Court.

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iii) Further he is directed to pay further fine of Rs.10,000/- for all the offences and the said fine amount after deposit, be paid to the complainant as compensation as required under Section 357 of Cr.P.C.

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iv) The appellant shall deposit the said fine

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amount before the trial Court within one month from the date of this order.

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v) The trial Court is directed to take the bond for good behavior of the

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appellant/accused No.3 for a period of 2 years.

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vi) Further the Probation Officer of the Tumkur District is directed to keep a watch on the activities of the appellant

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No.3 for a period of 2 years and submit a periodical report to the Trial Court.

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vii) Send the operative portion of this order to

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the trial Court forthwith for compliance.

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viii) Send back the trial Court records along

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with the copy of this judgment to the Trial Court.

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Sd/(RAMACHANDRA D. HUDDAR) JUDGE

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SMP

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List No.: 19 Sl No.: 3

Sri. Sathisha v. State of Karnataka by

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Sri. Sathisha v. State of Karnataka by

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