Allowed

State of Karnataka v. Mr. Shashidhar

Karnataka HC31 May 2024CRL.A/684/2019

Case brief

AI extract

What is this about?

State appealed against acquittal of an accused under Section 307 IPC after trial Court convicted him only for Section 324 IPC for assaulting a woman who refused sexual favours. Holding that intention, not grievous injury, suffices for Section 307, the High Court set aside the acquittal, convicted him under Section 307 and sentenced him to five years' rigorous imprisonment with fine.

What did the court decide?

Acquittal under Section 307 IPC set aside; respondent convicted under Section 307 IPC and sentenced to rigorous imprisonment of five years and fine of Rs.25,000/-, with Rs.20,000/- payable to the vict

State of Karnataka Vs Mr. Shashidhar — Murder and Culpable Homicide | Karnataka HC (2024)

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NC: 2024:KHC:18652-DB CRL.A No. 684/2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31^ST DAY OF MAY, 2024

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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 VIJAYKUMAR A. PATIL CRIMINAL APPEAL NO.684/2019 (A)

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BETWEEN:

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Digitally signed by K S RENUKAMBA Location: High Court of Karnataka

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STATE OF KARNATAKA BY MADIWALA POLICE STATION BENGALURU REP. BY STATE PULBIC PROSECUTOR HIGH COURT BUILDING DR. AMBEDKAR VEEDHI BENGALURU - 560 001 … APPELLANT

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(BY SMT. SOWMYA R, HCGP)

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AND:

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MR. SHASHIDHAR S/O MR. SURAPPA AGED ABOUT 27 YEARS R/AT NO.58 ALDUR VILLAGE AND POST CHICKMAGALUR TALUK AND DISTRICT - 577 111.

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…RESPONDENT

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(BY SMT. ARCHANA K.M. ADV., APPOINTED AS AMICUS CURIAE FOR RESPONDENT)

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THIS CRIMINAL APPEAL IS FILED U/S.378(1) AND (3) R/W 27 OF PREVENTION OF CORRUPTION ACT, PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 16.07.2018 PASSED BY THE COURT OF THE LII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE (CCH-53) IN S.C.NO.1164/2013.

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THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, K.S.MUDAGAL J., DELIVERED THE FOLLOWING:

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JUDGMENT

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Challenging the conviction of the accused for a lesser offence than the one charged, the State has preferred this appeal.

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The respondent was prosecuted in

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S.C.No.1164/2013 for the offence punishable under Sections 307 & 309 of IPC on the basis of the charge sheet filed by the Madiwala Police in Crime No.387/2013 of their police station. The respondent was sole accused in the said case. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the trial Court.

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3. The case in brief is as follows:

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That PW-9 is the mother of PW-4 the victim. PW-5 married the victim subsequent to the incident in this case. PW-4 was working in the house of PW-2 as maid servant. PW-11 is the daughter and PW.7 is the colleague of PW.2. The accused and PW-4 had a romantic relationship about two years prior to 11.05.2013. After sometime she came to know that the accused is an alcoholic addict and has other vices, therefore she started withdrawing from the relationship. As the accused was unemployed, at his instance PW-4 had contacted PW-5 to

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get an employment for the accused. Later the accused started suspecting that PW-4 has developed interest towards PW-5. Being enraged by that, when PW-4 & PW-11 alone were in the house of PW.2 on 11.05.2013 at 09.30 a.m. accused came to the house of PW-2 shouting at PW.4. Being scared PW11 ran out. The accused told the victim to marry PW-5 and before that to appease his sexual urge once. When she resisted, the accused with an intention to commit murder, assaulted her with heavy sickle - M.O.1, the sliding blades - MOs.2 & 3 and caused her injuries. When the victim attempted to ward the blows, her left hand ring finger was cut. Further, the accused attempted to strangulate her. She phoned PW-2, her employer. Thereafter, the accused attempted to commit suicide by cutting his neck with the same blade and stabbing himself. PW-2, on getting the information, came to the house along with PWs-6 & 7. On the way PW-6 joined them and on reaching the spot, they informed the police. The accused & victim were shifted to St.John's Hospital. Regarding the incident PW-2 filed the complaint as per Ex.P-4 before PW-12 - the Sub Inspector of Madiwala Police Station. Based on the same, he registered the FIR as per Ex.P14. He recorded the statement of the victim in the hospital and seized her blood stained clothes and after discharge of the

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accused from the hospital, he arrested him, collected the wound certificates of the victim and the accused, effected the recovery of the incriminating materials, recorded the statements of witnesses and on completing investigation, he submitted the charge sheet.

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The trial Court, on hearing the parties, framed the charges against the accused for the offences punishable under Sections 307 & 309 of IPC. Since the accused denied the charges, trial was conducted. In support of the case of the prosecution, PWs-1 to 14 were examined and Exhibits P-1 to P- 20, MOs1-15 were marked. After his examination under Section 313 of Cr.P.C. with reference to the incriminating evidence, the accused got himself examined as DW-1 and one witness as DW-2 and on his behalf eight (08) letters said to have been written by PW-4 were marked as Exs.D1 to D8.

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The trial Court, on hearing the parties, by the impugned judgment and order held that the fact of accused assaulting PW-4 with MOs-1 to 3 and causing her injuries were proved. However, the trial Court held that the acts of the accused established by the prosecution constitute only the offence punishable under Sections 324 of IPC and not the

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offence under Section 307 of IPC. The trial Court acquitted the accused for the offence under Section 309 IPC and convicted him for the offence under Section 324 of IPC. Further, for the offence under Section 324 of IPC, the trial Court sentenced him to imprisonment for the period of detention already undergone by him.

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The accused has not challenged the order of conviction of sentence passed against him, but the State has challenged the order of acquittal for the offence under Section 307 of IPC and conviction granted by the trial Court for the lesser offence viz., Section 324 of IPC.

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Submissions of Smt.Sowmya R., learned HCGP:

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The trial Court having held that the accused intentionally caused hurt by dangerous weapons, fell in serious error in acquitting him of the offence under Section 307 IPC. The intention and knowledge of the accused was manifest by the weapons used and the part of the body of the victim chosen to assault. Therefore, the impugned judgment and order of acquittal for the offence under Section 307 of IPC is liable to be set-aside and the accused is required to be convicted and sentenced for the offence under Section 307 of IPC.

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In support of her submissions, she relies on the

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following judgments:

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i. Lakshman Singh v/s State Of Bihar¹

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ii. S.K.Khaja v/s State of Maharashtra²

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iii. State of M.P v/s Saleem Alias Chamaru and Another³

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Submissions of Smt.Archana K.M., learned Amicus Curiae for the respondent-accused:

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The evidence on record clearly shows that the accused had also suffered stab injury and injury on the neck. The evidence on record probabilizes his defence that PW-4 first inflicted injury on him, later inflicted injuries on herself, therefore, Section 307 of IPC does not attract. The evidence on record shows that the victim herself summoned the accused to the place of incident and as the accused did not oblige her request to marry her, she has falsely implicated him in the case. Even according to the prosecution, the evidence of PW-4 shows that the accused had gone to the scene of offence only to seek sexual favour from her and not to commit her murder. Thus

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1 (2021) 9 SCC 191

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2 2023 SCC OnLine SC 1093

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3 (2005) 5 SCC 554

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there was no pre-meditation on his part. The bag in which the accused allegedly carried the weapons was not seized. There are no grounds to hold that the accused has committed the offence under Section 307 of IPC. The appeal shall be dismissed.

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Considering the submissions of both sides and material on record, the question that arises for determination of the Court is:

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"Whether the trial Court has committed patent illegality in convicting the accused for the offence under Section 324 of IPC instead of Section 307 of IPC?"

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Analysis

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The case of prosecution in nutshell is that, the accused and PW4 were earlier in a romantic relationship and after some time, when on learning about the ill vices of the accused, she started withdrawing from the relationship and accused started suspecting that she has a relationship with PW5. It is further alleged that, on the date of the incident, the accused went to the house of the PW2 where PW4 was employed as maid servant and sought canal contact with her, when she declined, he assaulted her with MOs.1 to 3 with an

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intention to commit her murder and caused her injuries. Further, he attempted to strangulate her neck.

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The trial Court, after evaluation of the evidence,

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accepted the case of the prosecution to the effect that the accused went to the scene of the offence and sought canal contract, when PW4 resisted, he assaulted her with MOs.1 to 3 and caused her injuries as found in the wound certificate at Ex.P2. The trial Court convicted him for offence under Section 324 of IPC and sentenced him to the period of imprisonment that he had already undergone. The accused has not challenged the said findings, order of conviction and sentence and the same has attained finality. Therefore, it is not open to the respondent-accused to contend, at this stage, that he had gone to the scene of offence at the instance of the victim. He had no motive to assault her and MOs.1 to 3 were not carried by him, etc.

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Even his defence with regard to he suffering injuries were not consistent. In the cross examination of PW4, he suggested that first she self inflicted the injury on her neck with blade and then she assaulted him with chopper and blade, which she denied. Whereas, in his chief examination (DW1), he

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states that PW-4 threatened him that, if he does not marry her, she kills herself and cut her neck with knife and when he tried to prevent her, the blade of the knife hit him and he became unconscious. He does not claim that the victim assaulted him and caused him injuries. But, none of such explanations were found in examination under Section 313 of Cr.P.C.

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The evidence on record clearly shows that the accused admitted the presence of himself and victim at the scene of offence and she suffering injuries by MOs.1 to 3. He tried to set-up some defence which he did not probabilize. The evidence of PW-11 shows that the accused entered the house creating a ruckus, being scared, she left the house. If the accused had gone to the scene of offence without any motive or intention and at the instance of the victim herself, there was no reason for him to carry weapons and shout at her while entering the house itself and he had no reason to close the door of the house. When the trial Court holds that the accused has inflicted the injury with an intention of causing hurt, the intention on the part of the accused stood established.

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Then the only question is whether his intention was to cause just hurt with the weapons or to attempt on her life.

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Section 321 of IPC which defines voluntarily causing hurt makes the intention to cause the hurt as a pre-requisite. As already pointed out, the finding of the trial Court that the accused caused the hurt intentionally has attained finality. It is settled proposition of law that in deciding whether the act of the accused amounts to attempt to commit murder, the factors to be considered are the weapons used, part of the body chosen for assault along with other circumstances. In the present case, the accused carries the weapons MOs.1 to 3 while entering into the house, he closes the door of the house, takes the opportunity of victim being alone in the house and assaults her on her neck, chest and scalp with MOs.1 to 3.

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The evidence of PW1, The Doctor who treated the

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victim and issued the wound certificate at Ex-P-2, shows that the victim had suffered following injuries:

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"1. Incised wound over front aspect of neck measuring 6cmX3cmXmuscle deep.

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2. Incised wound over back aspect of neck measuring 4cmX1cm and 3cmX1cm.

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3. Incised wounds over left parietal region of scalp measuring 8cmX3cm and 4cmX2cm.

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4. Incised wound over left side of chest measuring 5cmX2cm.

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5. Incised wound over right hand 1st web space.

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6. Right ring finger distal phalanx amputation."

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The aforesaid injuries, coupled with the evidence PW-4 show that the accused assaulted the victim with MO.1 on her head and tried to slit her neck with MOs.2 and 3 - blades, and stabbed on her chest with knife. He caused amputation of her right ring finger. To invoke Section 307 of IPC, even the injury is not required, the intention of the accused is sufficient, that is the proposition laid down by the Hon'ble Supreme Court in Saleem's case referred to supra. While considering which acts constitutes the offence under Section 307 of IPC, the Hon'ble Supreme Court held as follows:

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" 12. To justify a conviction under this section, 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 an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an

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intent coupled with some overt act in execution thereof.

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13. 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. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt ."

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(emphasis supplied)

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Considering the weapons used, parts of the body

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targeted by the accused in assaulting then victim and the other circumstances discussed above, it cannot be said that the accused had no knowledge that his acts will not cause the death of a person or he had no intention to cause the injuries which are likely to lead to the death of the victim. Further, the nature of injuries suffered by the victim also shows that the accused had the intention of attempting on the life of the victim and knowledge that his acts are likely to lead to her death.

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The mere fact of the accused suffering injuries does not mitigate his intention or knowledge of attempt to commit murder. The evidence on record clearly shows that he was

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infatuated and after attempting on the life of the victim, he stabbed himself. His allegation that the victim herself caused those injuries is already negatived and there was no consistency in such defence also.

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In the judgment of Lakshman Singh's case referred to supra, the Hon'ble Supreme Court held that the evidence of the injured witness comes with greater assurance and credibility and there should be strong circumstances to disbelieve the same. No such strong circumstances were made out in the present case to disbelieve the evidence of PW-4 or the prosecution about accused assaulting her with an intention to attempt on her life. The trial Court, having accepted the entire case of the prosecution with regard to the assault, exonerated him of the charge under Section 307 of IPC only on the ground that the injuries inflicted by him were not grievous in nature. While holding so, the trial Court acted contrary to Ex.P-2, the wound certificate, and the evidence of PW-1 that injury Nos.1, 2 and 6 shown in Ex.P-2, wound certificate of the victim, was grievous in nature. Injury No.6 was amputation of right finger distal phalanx that clearly falls under 4th explanation of grievous hurt under Section 320 of IPC.

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Therefore, the finding of the trial Court that no grievous hurt was suffered is contrary to Section 320 of IPC, evidence on record and that suffers the vice of perversity.

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Moreover, as noted earlier, the grievous hurt is not a pre-condition to invoke Section 307 IPC. The impugned judgment and order of acquittal for the offence under Section 307 of IPC suffers patent illegality and perversity which has led to miscarriage of justice. Hence, the same is liable to be set aside and the accused is liable to be convicted and sentenced for the offence under Section 307 of IPC. Hence the following:

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ORDER

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i. The appeal is allowed.

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ii. The impugned judgment and order of acquittal is hereby set aside.

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iii. The respondent-accused is convicted for the offence punishable under Section 307 of IPC.

Sd/JUDGE

Sd/JUDGE

BSR

List No.: 1 Sl No.: 29

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KSMJ & VAPJ: 14.06.2024 (VIDEO CONFERENCING / PHYSICAL HEARING)

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ORDER ON SENTENCE

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The accused-respondent is produced digitally from the Central Prison, Bengaluru.

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Amicus-Curiae as well as learned counsel who was representing the accused earlier are present.

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Heard on sentence.

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Respondent claims that he has aged mother and two younger sisters dependent on him and he had also suffered the injuries in the incident. Therefore, lenient view may be taken and restrict the sentence to the period of detention undergone by him.

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Learned HCGP submits that the respondent has committed heinous offence against the victim. Her right ring finger was amputated. In the grip of lust, he caused six injuries on her two being on vital parts. Therefore, he does not deserve any leniency.

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As per the Trial Court records, at the time of incident the respondent was aged 22 years and the victim was aged 19

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years. The victim due to poverty was employed in the house of PW.2 as domestic help. It is held when the victim girl did not heed to the demand of sexual favour of the respondent, he assaulted her with knife, blade and attempted to commit her murder, then he stabbed himself. The victim had suffered six injuries and her right ring finger was amputated in the assault. The injuries were inflicted on the vital parts viz., parietal region and the neck. First of all there is nothing to show that the mother and sisters of the respondent/accused are solely dependent on him. Secondly, had he any respect for his mother and sisters, he would not have indulged into such crime against another woman for the sake of sexual urge. Therefore, it is not a fit case to restrict the period of detention undergone by the respondent.

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The offence committed by the appellant under Section 307 IPC carries imprisonment upto life and fine. The appellant had no other criminal antecedent.

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Considering the aforesaid facts and circumstances, interest of justice would be met by sentencing the appellant to Rigorous Imprisonment of five years and fine of Rs.25,000/-. Hence the following:

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ORDER

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For the offence punishable under Section 307 IPC, the respondent/accused is sentenced to rigorous imprisonment of five years and fine of Rs.25,000/-. In default to pay fine amount, he shall undergo simple imprisonment for six months.

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Out of the aforesaid period of sentence, the respondentaccused is entitled to set off as per Section 428 of Cr.P.C. for the period of detention already undergone by the accused.

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Out of the fine amount, sum of Rs.20,000/- shall be paid to the victim-PW.4 and balance amount shall be remitted to the State.

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Acting under Section 357A of Cr.P.C., the matter is referred to District Legal Services Authority, Bengaluru Urban District for determination of compensation payable to the victim and the payment of the same.

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MOs.1 to 3 and 6 to 15 being worthless shall be destroyed after the expiry of the appeal period. The Trial Court shall dispose of MOs.4 and 5 in accordance with law, if anybody claims them.

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The trial Court shall issue modified conviction warrant accordingly.

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The Court places on record its appreciation for the able assistance rendered by Smt. Archana K.M, learned AmicusCuriae . Registry shall disburse the admissible remuneration sum of Rs.15,000/- to her.

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Registry shall furnish free copy of this judgment to the accused and transmit the records to the trial Court forthwith.

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Sd/JUDGE

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Sd/JUDGE

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PKN List No.: 1 Sl No.: 14

State of Karnataka v. Mr. Shashidhar

Case brief

What is this about?

What did the court decide?

State of Karnataka v. Mr. Shashidhar

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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