under Sections 324, 326, 448, 427 read with. Section 34 of IPC and sentencing
them to undergo rigorous imprisonment for 2 months for the offence punishable ...
1
Crl.A 587/06
IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 5TH DAY OF MARCH, 2013 BEFORE: THE HON’BLE MR. JUSTICE A.S.PACHHAPURE CRIMINAL APPEAL No.587 OF 2006 BETWEEN: 1. Ramachandrappa, S/o. Bhimappajja, Aged about 30 years, Occ: Agriculture, 2. H. Mylari @ Kutti, S/o. Hanumanthappa, Aged about 22 years, Occ: Agriculture, 3. K. Ravi, S/o. Krishnappa, Aged about 22 years, Occ: Agriculture, 4. Ganesh, S/o. Mariyappa, Aged about 25 years, Occ: Vegetable Merchant, All are R/o: Vidhyanagara Holehonnur Pete, Taluka: Bhadravathi, District: Shimoga. ... APPELLANT/S [By Sri. R.B. Deshpande, Adv.]
Crl.A 587/06
2
AND: The State of Karnataka.
... RESPONDENT/S
[By Sri. Rajesh Rai K., HCGP.] *** This Crl.A. is filed u/Section 374(2) Cr.P.C against the Judgment dt.31-1-06 passed by the P.O., FTC-I, Shimoga, in S.C. No.80/2004 - convicting the appellant-accused for the offences punishable under Sections 324, 326, 448, 427 read with Section 34 of IPC and sentencing them to undergo rigorous imprisonment for 2 months for the offence punishable under Section 324 read with Section 34 of IPC and sentencing them to undergo rigorous imprisonment for 2 months for the offence punishable under section 448 read with Section 34 of IPC and sentencing them to undergo rigorous imprisonment for 1 month for the offence punishable under Section 427 read with 34 of IPC and further sentencing them to undergo rigorous imprisonment for 1 year and to pay fine of Rs.1000/- each for the offence punishable under Section 326 read with Section 34 of IPC in default, to undergo rigorous imprisonment for 2 months. The imprisonment shall run concurrently except the sentence on default of payment of fine. This Crl.A. coming on for Final Hearing, this day the Court delivered the following:
JUDGMENT The conviction
appellants and
have
sentence
challenged for
the
their offences
Crl.A 587/06
3
punishable under Sections 324, 326, 427, 448 r/w. 34 IPC., on a trial held by the Fast Track Court, Shimoga.
2.
The facts relevant for the purpose of
this appeal are as under:
On 26.10.2002, at about 10.00 a.m., appellant No.1
[accused
No.1]
was
indulged
in
illegal
transportation of liquor on his motorcycle bearing reg. No.KA 14-4596 and at that time, P.W.1-Mohan was a Raid Manager, employed by one N.T.Prakash, an Excise Contractor, with the assistance of other persons tried to apprehend appellant No.1, but he escaped on his motorcycle.
On the same day, at 11.15 p.m., P.W.1-Mohan, P.W.2-Syed and C.Ws.3, 4 and 5 who were working near
the
office
of
the
Excise
Contractor-
N.T.Prakash near Nrupathunga circle at Holehonnur Pete.
At
that
time,
it
is
alleged
that
the
appellants/accused in furtherance of their common
Crl.A 587/06
4
intention to assault P.Ws.1 and 2 and C.Ws.3 to 5, armed
with
iron
rod,
knife,
club,
etc.,
and
appellant No.1 assaulted C.W.2-Srinivas with long on his head, stomach, hand, face, etc., and caused bleeding injury; appellant No.2 assaulted P.W.2Syed with knife on his face and other parts of the body and caused grievous injury; appellant No.3 assaulted C.W.4 with club all over the body and caused
bleeding
injury
and
appellant
assaulted the complainat-P.W.1 with rod.
No.4 As the
injured fell down on the ground, the appellants thought that they have caused their death, entered the Excise Contractor’s office and damaged the table, chamber and caused loss to an extent of Rs.600-00 and appellant No.1 assaulted C.W.5 with long and caused bleeding injury and escaped from the scene of occurrence.
P.W.1-Mohan
approached
the
Police
and
submitted his complaitn-Ex.P1, which came to be registered
in
Crime
No.172/02
for
the
offence
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5
punishable under Sections 324, 307, 448, 427 r/w. 34 IPC.
During the course of the investigation,
spot mahazar-Ex.P2 was held in the presence of the attesting witnesses and M.Os.1 to 3 were seized. Statements
of
the
witnesses
were
recorded.
Injured was shifted to the hospital and on the arrest
of
the
appellants,
their
voluntary
statements were recorded as per Exs.P12 to 15. They
led
the
Police
and
panchas
and
in
the
presence of the witnesses produced weapons-M.O.4iron rod, M.O.5-knife, M.O.8-long, M.O.9-club and they were seized under the mahazars.
The clothes-
M.Os.6, 7, 10 to 12 of the injured were also seized under different mahazars.
After collecting
the
to
injury
certificates-Exs.P4
8
and
the
relevant documents, charge-sheet was laid against the appellants for the charge under Sections 324, 307, 448, 427 r/w. 34 IPC and offences.
for
other
allied
Crl.A 587/06
6
During the trial, the prosecution examined 12 witnesses, marked the documents Exs.P1 to 18 and M.Os.1 to 12.
Statements of the accused were
recorded under Section 313 Cr.P.C. They took the defence of total denial and no defence evidence was led.
The trial Court heard learned counsel for the parties and on appreciation of the material on record, convicted the appellants for the charges under Sections 326, 324, 427, 448 r/w 34 IPC and for
the
major
offence
under
Section
326
r/w.
Section 34 IPC., ordered imprisonment for one year and to pay a fine of Rs.1,000-00 each with default sentence and lesser sentences for other offences. Aggrieved
by
the
conviction
and
sentence,
the
present appeal is filed.
3. appellants
I have heard learned counsel for the and
also
Government Pleader.
the
learned
High
Court
Crl.A 587/06
7
4.
The
point
that
arises
for
have
made
my
consideration is;
Whether
the appellants
out any grounds to warrant interference in their conviction and sentence for the offences punishable under Sections 326, 324, 427, 448 r/w 34 IPC.?
5.
Learned counsel for the appellants would
contend that except the evidence of injured-P.Ws.1 and 2, there is no other evidence to corroborate their version and therefore, he contends that the trial Court committed an error in accepting such evidence and awarding conviction.
So also, he
submits that the sentence ordered by the learned Sessions Judge is even on the higher side and as the appellants were in custody for some time, so, confining the sentence to the extent of custodial period, they may be released.
Crl.A 587/06
8
On
the
other
hand,
learned
High
Court
Government Pleader has supported the Judgment and Orders of the trial Court.
6.
The incident took place at about 11.15
p.m. and the complaint-Ex.P1 was filed before the Police at 11.50 p.m.
There is no delay in lodging
the complaint.
7. injured
P.W.1-Mohan and
sustained
though
and
P.W.2-Syed
C.Ws.2,
injuries
in
4
and
the
5
are
the
are
also
incident,
the
prosecution has left them unnecessary to prove its version. examined
P.Ws.4 the
and
injured
5
are
and
the
doctors,
issued
the
who
injury
certificates-Exs.P4 to 8.
As could be seen from
the
and
evidence
of
P.Ws.1
2,
it
is
their
consistent version that at about 11.15 p.m., when they were in front of the office of the Excise Contractor,
the
appellants
came
to
the
place
armed with long, iron rod, club and knife, stating
Crl.A 587/06
9
that the injured persons are informing the Excise Authorities
and
getting
them
apprehended,
appellant No.1, who held a long assaulted C.W.2Srinivas on his head, abdomen, chest and face; appellant No.2 assaulted P.W.2-Syed with knife and appellant
No.3
assaulted
club, whereas, appellant
C.W.3-Venkatesh No.4
with
is said to have
assaulted P.W.1-Mohan with iron rod.
When C.W.3-
Venkatesh escaped and the other injured fell down, the appellants entered the Office of the Excise Contractor-N.T. Prakash with whom the injured were employed for the purpose of raiding to prevent unlawful transportation of liquor, and damaged the table, chair kept in the office and caused loss to the
extent
of
Rs.600-00.
C.W.2-Srinivas
was
assaulted in the office. Though P.W.1-Mohan in the cross-examination states that he knew the names of the
accused
through
others.
So
far
as
the
identity of the accused is concerned, he states that he was able to identify them in the electric
Crl.A 587/06
10
light from the electric pole, which was near the place of the incident. P.W.2-Syed states in his evidence that he knew the appellants even prior to the incident and that he identified them at the time
of
the
incident.
It
is
the
consistent
version of these witnesses about the part played by each of the accused.
There is no inconsistency
or any such material contradiction in the evidence of the witnesses so far as the assault by each of the
accused
on
the
injured.
Though
it
is
contended that an identification parade was not held, it is required only in a case where the injured was not able to identify the assailant and particularly in a case where the injured knew the accused prior to the incident, I do not think there
is
any
necessity
for
the
investigating
agency to hold an identification parade to fix the assailant.
8. examined
The doctors i.e., P.Ws.4 and 5 who have the
injured
have
issued
injury
Crl.A 587/06
11
certificates-Exs.P4 to 8.
Ex.P4 is the injury
certificate of Srinivas, who is not examined and he has sustained incised wound of 2 cm. x 1 cm. on the
left
eye-brow
simple.
and
the
Venkatesh-C.W.3
injury
was
suffered
examined
and
is his
injury certificate is at Ex.P5, which reveals a simple injury i.e., bone in the right ankle joint. Raghavendra
was
examined
and
his
injury
certificate is at Ex.P6, which reveals he
has
suffered multiple abrasion of 2 cms. each on the left shoulder and lower lip swollen, whereas Ex.P8 is the injury certificate of P.W.1-Mohan and he has suffered pain and tenderness in the right thigh
and
left
shoulder.
All
these
injuries
sustained are simple injuries, whereas P.W.2-Syed was examined and the injury certificate Ex.P7 was issued.
There was a contusion 3 x 2 cms. over the
right eye-brow and abrasion of and
fracture
of
nasal
bone.
½ cm. on the nose The
doctor
certified that injury No.2 was grievous.
has From
Crl.A 587/06
12
this medical evidence placed on record, certainly it could be said that P.Ws.1 and 2 are injured witnesses.
9.
The evidence of an injured stands at a
higher pedestal.
An injured generally does not
implicate an innocent and do not leave a person who has really caused harm. witness
needs
evidence
led
no by
The evidence of such
corroboration. the
The
prosecution
version of the injured.
medical
supports
the
There is no delay in
lodging the first information.
If the version of
the prosecution is looked into, there appears to be
no
reasons
injured.
The
to
reject
contention
the that
evidence the
of
the
independent
corroboration is necessary cannot be accepted in the light of the principles laid-down so far as appreciation of the evidence.
10.
The trial Court has convicted all the
appellants for the charge under Section 326 r/w.
Crl.A 587/06
13
34 IPC. Though Section 34 IPC is invoked, there should be a common intention to cause assault and it cannot be said that all the appellants had an intention to cause grievous injuries. nature
of
the
blow
that
is
It is the
inflicted
makes
difference between simple injuries and grievous injuries
and
though
appellant
No.2
has
caused
grievous injuries to P.W.2-Syed, his intention to cause grievous injuries cannot be attributed to appellant
Nos.1,
3
and
4.
Therefore,
the
conviction of the appellants other than appellant No.2 [accused No.2] for the offence punishable under Section 326 r/w. 34 IPC is improper.
So far
as the rest of the offences are concerned, as the appellants have used deadly weapons in causing the assault and as the injured suffered simple injury, their conviction for the offence punishable under Sections 324 r/w. 34 IPC cannot be interfered. Even for the offence punishable under Sections 427,
448 r/w. 34 IPC there is ample material on
Crl.A 587/06
14
record to prove that the appellants committed an act of trespass by entering into the office of the Excise Contractor and damaged the table and chair in the office and caused loss to the extent of Rs.600-00.
Therefore, their conviction for the
offence punishable under section 427, 448 r/w. 34 IPC cannot be interfered with.
So far as the
quantum of sentence is concerned, it is relevant to
note
minimum
that
the
sentence
trial and
Court
taking
has
into
awarded
the
consideration
that in the night hours, the appellants armed with deadly weapons went to the office of the Excise Contractor and assaulted the injured persuade
this
Court
to
reduce
does not
the
sentence
ordered.
In the result, the appeal is allowed in part, the
conviction
[accused
Nos.1,
of 3
appellant and
4]
Nos.1, for
the
3
and
4
offence
punishable under Section 326 r/w. 34 IPC is set aside.
They are acquitted of the said charge.
Crl.A 587/06
15
Fine if any deposited by them shall be refunded. The
conviction
and
sentence
of
appellant
No.2
[accused No.2] for the offence punishable under Section
326
IPC
is
affirmed
and
further
the
conviction and sentence of the appellants for the charge under Sections 324, 427, 448 r/w. 34 IPC are affirmed. The sentence shall run concurrently.
The appellants are entitled to the set off under Section 428 Cr.P.C.
The trial Court is
directed to secure the presence of the appellants to undergo the remaining sentence.
Sd/JUDGE.
Ksm*
