CrI.A. NO. L742 2008
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 10?" DAY OF AUGUST 2009
BEFORE
THE HON'BLE MR.JUS'I'ICE ARAL! NAGAEA3 ' ,1";-I A.
Criminal A[;Qe_a_l No.742 42003007; 'VI f
BETWEEN:
1. KUSHALLAPPA GOWDA .
S/O LATE BALANNA GOWDA-._
AGE: ABOUT 45 YEARS
R/AT KAYARA HOPUSE
' DOLPADY VILLAGE V _ ' ._
PU'mJR TALUK, D.K. ~
2. KHONNAPPAOOWDA-"*'*v».j _
S/O LATEBAl'.A_NNA(l}OW1QA =
AGE: ABOUT 5';%YEAR:3, AGRICL1 L '*RIs'1"
DOLPAD:rvh_;,LAE+E_
PUEIUR _ _« ..APPELLAN'rs
{BY SR1 ADVOCAT.)
AND: _. .0
..P\P. ***** ..RESPONDEN'I'
"'-'(BE A;\{[RAr»4A:{R1sHNA., H.C.G.P.)
'1 ."TH1S'O'E_§E=?xV.V IS FILED U/S 374(2) OF CR.P.C. AGAINST
THE J.UDGEviE}\i<T DATED 19.05.2008 IN S.C.NO.1/2006 ON THE
-FILE OF' THE :1 ADDITIONAL SESSIONS JUDGE, D.K..
MANGALORE, CONVICTING THE APPELLANT/ACCUSED NO.1
" EOIEEHE OFFENCB3 PUNISHABLE UNDER SECTION 304 PARFI
"OF.I,P.'C. AND APPELLANT/ACCUSED NO.3 FOR THE OFFENCE
_ =_PU.NISi~'9iABLE UNDER SECTEON 326 OF I.P.C. AND
THIS APPEAL COMING ON FOR FINAL HEARING THIS
O' THE COURT DELIVERED THE FOLLOWING:
W
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- CrI.A. No. 74252008
J U D G M E N T
Accused Nos}. 8: 3 in Sessions Case No.1/2006
on the file of the learned ll Additional Sessions Judge,
D.K., Mangalore (‘Trial Court’ for short) have.
challenged in this appeal the correctness
judgment and order of conviction 3″
and order of sentence dated
said case convicting these ap*pe.1_lants{accusedl os.l VA
3) respectively for the offences :3l04:FPart I
of I.P.C. and under I.P.C. and
sentencing Aliaccusfecd ._No._l_ – to undergo simple
imprisonnientp for.._a–:pefio.d”‘<of seven years and also to
pay fine of default sentence of further
simple inipfisonment for one month; and sentencing
accused" simple imprisonment for three years
V dd _ and to of Rs.1,000/– With default sentence of
K V' V simple imprisonment for further one month.
Accused No.2 namely, SInt.Yashoda, the wife of
"–«::a'ccused No.1 Kushalappa Gowda who was charged
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Cr"/.A.No. 742 2008
with the offence punishable under Section 302 read
with Section 34 of I.P.C., has been acquitted by {lie
Trial Court.
3. Heard the arguments of Sri I.Tharanath:_:i3oQjwaf§§ t
the iearned counsei for the apgieilaritg
accused Nos.1 & 3) and Sri
High Court Government P1eade’12:
4. Sri Iffharanath 131;: counsel for
accused Nos.1 &*3_. (he1’einafte1*aLre referred to
as per their ‘1’ri_a1″Ctourt] submitted that
accusedE’–.No..3 ~{¢;=*I$§3€?_1\1a’*’IV§:f’r».:’].’Io.2). who came to be
sentenced to” u_Vt1de.rgo’v.siii1p1e imprisonment for three
“vV*y.ears«..'{a1i,d also fine of Rs.1,000/–, underwent
the for the said period and as on this
dayA,’~..__he been set at liberty and therefore, the
appeal. in respect of this appeflant is not
i” .;3re’s»sed as having become infructuous.
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Cr!.A.No.742 2008
5. Sri I.’I’haranath Poojary, the learned counsel for
the appellantswaccused strongly contended that the
Trial Court committed error in observing at para ”
the impugned judgment that accused 3
assaulting the deceased, though
cause death of the deceased,he_ committed act
of assault with the ‘knowledg’e’V~..that he ‘wasV’:in’i”iicting
such bodily injuries on persc-;nd:of._thedeceased as is
likely to cause death, iswo, _tsid–e_ Part I of
Section 304 as impugned
judgment of accused No.1 for
the offencejV_u’ndei’Sectioii..i’§GZ1 Part I of I.P.C. cannot be
sustajgned,
learned High Court Government
Pleader that though the Trial Court has
‘mused tiievjjword ‘knowledge’ on the part of accused No.1
“in inflicting the injuries on the person of the deceased,
…_’v”‘the% circumstance under which the incident occurred
Land this accused No.1 assaulted the deceased indicate
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Cr/.A.NO. 742 2008
before he could be admitted in the hospital for
treatment. H.
8. The defence of accused No.1, as could
from the written statement filed by T’
statement under Section 313 of 3W’as’¥’recorded,
is that the deceased went tegform the”r0ad,Vir3 V
his (accused No.1’s) house he the
deceased not to lay’ deceased
continued to Iay the -“request, by
ex-:’–‘
digging the ‘§J’.’C’:.B. and then, a
quarrelqstartedvt’betj}§7een,V:hirnseif and the deceased and,
during the tsaidn the deceased assaulted
V accused _No.i head with a stick and P.W.2
Vwho was one of the ten members
deceased in forming the road, assaulted
V . himt”””{ac’c:tise”d No.1) with a chopper and thereby,
ieinflicted “on his head severe bleeding injuries and
the said incident, when his wife Smt.Yashoda
{accused No.2] and his elder brother K.Honnappa
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Crf.A.No.?42 2008
Gowda (accused No.3) came to rescue him, the
deceased Devappagowda also assaulted accused Nos.2
& 8, and when the deceased again went to
accused No.1 with a chopper, he (accused
snatched the chopper from the handsof
and started swinging it for protectingohis 1ife,_ApAthen
chopper came into contact “the
deceased and consequently,; “t’he._: ‘ ‘decgpased ” “sustained
the said injuries.
incident…Aas ‘ ‘complaint at Ex.Pl, the
prosecution has piaced”re1iance on the oral evidence of
‘Gf,t__the-se witnesses, P.W.-4 Puttanna
;n’ot.._fully supported the prosecution case
and.”t’nerefor_e….1’he came to be treated hostile by the
learned l5tjblic Prosecutor. In his eXamination–in–chief,
is has stated that at about 0.30 am. on 24.00.2005,
.___””l’.”wAh;ile”he was in his shop, the deceased Devappagowda
“.had brought J.C.B. for forming road and at that time,
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Crl./l. No. /742 2008
also assaulted the deceased with chopper and thereby
inflicted injuries on his person. This being the nature
of evidence of P.W.4, I am of the considered”
that the same is of no heip to the ‘
inasmuch as this witness has gstated two?
versions, one in his eXaminati_on-in—-chief and .anc3th’er”=
in his C1’0SS-€X8_II1iI1atlOI1. ‘V”i’e’..i.*jx1erice,V” evidence
deserves to be rejected’.
11. Though ther.evidence:.of r5wi..4 éffio’ help to the
prosecution incident of
al1eged:’ass.aul.tNo.l on the deceased, the
evidence of i?..VJ,s.l1 ,_ as to the occurrence of the
.-v~.’_sajdV_~i§{.1cident ‘czpaitervconsistent. Therefore, I do not
to hold that the Trial Court committed
any errorlinaccepting the evidence of these witnesses
& 5) insofar it relates to the occurrence of
“:itfnAe:liricident as alleged in the complaint at E3x.P. 1. The
learned counsel for the appellants is also not in a
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Crl.A.No. 742(2008
Umavathi has clearly admitted at para 14 of her
evidence that the Police had come to the scenejdogf
offence pursuant to the complaint filed by
No.1 against the deceased and had stopped..for1ningl..of it l
road by the deceased at the scene
that the deceased could V.fo.r”m
obtaining an order from the Cixriiu it ‘
13. The above adrnissi.’on “._of;_’I§5.V’J’53:*Smt.UmaVathi
clearly goes to show that dispute
between acc1,1sed 1- _Vl.the«-deceuaihsleld in respect of
formingfiof house of accused No.1
leading to thcedthouseaélof and a complaint was filed
a.c§;;useid Nol.in_____respect of the said dispute and
_the_ .__had stopped forming of road by the
decéasegi the ill-will between the accused and
the dec.eased continued. P.W.3 has further stated at
of her evidence that on seeing the J.C.B. at the
.__h”sce;ne of offence, accused No.1 requested the deceased
, Dnot to form the road and thereby not to cause any
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CrI.A.NO.742 2008
injustice to him, but the deceased told him that he
would form the road at the said place only despite his
objections and therefore, the incident of quarrel
between the accused and the deceased comInerieed.r:’__’__s’ A’
14. Further, it has come in the evidenceof it
5 that during the said
also sustained some injuriesrand they also to Egel”
admitted to the hospital for treagtmentlll this,
D.W.1, the Medical _ol’ffiP15itt.ur_’fi'{eneral Hospital,
has stated in his Aevidericedthat’ at about
10.45 aim. –.i.’e…V after the occurrence of the
said incident” he” accused No.1 who had
…l.come«:l:pllvhim \Nit’l1va___mhistory that he sustained injuries
._res_iiltj.ofv assault on him by one Vishvvanath
(P.Wl..’2)l and.’-‘fi3e$:%’appagowda (the deceased). He has also
‘deposed that on the same day, he also examined
Nos.2 8: 3 who had come to him with the same
of assault. He has further deposed that he
fnoticed on the person of accused No.1 an injury on the
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Crl.A.NO.742 2008
parietal region measuring 10 ems. X 5 ems. X 1 cm.
with profuse bleeding; one injury on the right wrist
measuring 3′ X 11/2′; an abrasion over the
measuring 2 ems. X l em.; lacerated Woun_d”‘onCfri~ght T’
ieg and also on the thumb. He
that accused No.1 got himself discharged the
hospital at about 3.30 p.m. onlV’2$;.lO8.2OVO’5.’p_V”i
15. Ex.D.13 wound lldlcertiiicate lis.su:ed_ by D.W.i
Medical Officeréalso No.1
sustained ‘a_s’:._:deposed by D.W.1.
Besides:7thi_s’, of D.W.i and also the
Wound certificates 8: 15 cleariy establish
.-v..thatv_»a–ccused l\los;2…..<3l.»3 also sustained some injuries
V",du;ri11.g sai"d.._incident. It is pertinent to note that
accused liiled his compiaint before the Kadaba
'Police Station in respect of the same incident alleging
"thatfl"iiimself and accused Nos} 8: 2 came to be
…_'fiassaulted by the deceased and P.W.2 Vishwanath and
lifthey also sustained severe injuries but the said Police,
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C!'/.A.NO.742 2008
though registered a case against the deceased and
others in Crime No.67 / 2005 on the said complaint,
not file charge-sheet against the deceased
and filed only B–SuInma1'y report it
complaint.
16. From the evidence of P,Ws.1,
clear that the incident of quarrReii«.occurred’ hetween the
accused and the deceas’e_d’*an’fj, the said quarrei
the deceased andP.W.2:.AVishwai1at_h’ dassairilted accused
Nos.1 to wounds on
the personuof namely, lacerated wound
over the left_htshoulder” rneasuring 11/2′ X 21/2′ which
. resulitedy fractu’re___of_ spine of left scapula and another
V7.lacerated.__wovu.nd.over back of left thigh at the junction
of uoper lower 1/ 3rd in size with bleeding as
‘a_resu1t~of«;_cutting of the blood vessels.
The Trial Court, having come to the conclusion
the act of assault by accused No.1 on the
__.”deceased and consequent infiicting of said injuries
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Crl.A.NO.742g2008
could not attract the ingredients of Section 302 of
I.P.C., has observed at para 42 of its judgment that
while so assaulting and inflicting the said injur-ie_si.’_onj’
the person of the deceased, accused No.1,..t1a4oiigia.::’did it l
not intend to cause murder of the ékriieylvl
that his act could cause such bodily’ injttriesflas
likely to cause death of the ‘V
18. Part 1 of Section that if the
culpable hoini0§’tile.,,. D95 V’ 2 ‘murder is
committed causing death
or of caiusingx_::bod’ilQ’-.iiy«ury as is likely to cause
death, helshpjall yvith imprisonment for life
_ or sentence of imprisonment for ten
:aiso’*w_ith fine. and, part II of it provides that
iflusulch’ aei’l’ie with the knowledge that it is likely
to ca.use”V.death but without any intention to cause
death’-…or to cause such bodily injury as is likely to
“death. he shall be punished with imprisonment
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VIC 17 –
Crf./1. NO. 74252008
described as the injuries of such a nature as are likely
to cause death of a person. Therefore, I am of
opinion that the Trial Court committed
invoking first part of Section 304 of I.P.C. 3 V’ 9
accused No.1 for the culpable honi_icidelnot–oo: o
to murder.
21. The established facts ciearly
show that accused did :«._saJid.p’act the
knowiedge that by doing..,:so,, to cause
death or such as cause death.
Therefore, I opinion that accused
No.1 shouldéhave” for the offence of
.-v..cu1pa’::%i.eV homicide _____ __not amounting to murder
second part of Section 304 of I.P.C.
22..’e ._’i4iavi.n’g?t:’i__regard to the nature of the injuries
Vd*.,.,_’inflicted~ accused No.1 on the deceased and the
in which he committed the act of assault
‘ :bH1v’1H1ih€ deceased, I feel that the ends of justice would be
.. irnet with if the period of sirnpie imprisonment imposed
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Cr}./1. No. 74252008
on him is reduced from seven years to three years as
the sentence for the offence punishable under Section
304 Part II I.P.C.
23. In Vi€W of my foregoing discussions, C’
pass the following:
@195-:33,
This appeal, insofar as:i’t-ll.,relates”tolappellant
No.2, who was accu’sed_A l4i,’il}p’vvvlA.p:’:S.’_=_:VS.Sl01’1S Case
No.1/2006 oil #336,, fi13″”o~f« Iihe Additional
Sessionsv–‘Jt1clig;Eip,l hereby dismissed
as hmngbeconie
The appeal,…ins’ofa’r: as it relates to appellant
No, 1″,i—\Xrh.o’. was accused No.1 in the said Sessions Case,
‘is. in part. Conviction of the appellant
No.l*—..(ac<;fvuse.ir3lfNo.1)~for the offence punishable under
" Part I of I.P.C. is hereby altered to the one
,.tin.der:A*Section 304 Para II of I.P.C. Consequently, the
C .,'_'"s»e1-itence of simple imprisonment for seven years
C' if imposed on him by the Trial Court is hereby reduced
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Cri.A.No.742 2008
to three years. However, the sentence of fine of
Rs.1,000/– is left undisturbed. The impugned order on
sentence stands modified accordingly.
If appellant No.1 (accused No.1) .
completed his imprisonment for a period of
he shall be set at liberty forthwithfig A it
A copy of operative this
be sent to the Trial” ._§?ou1″t'” dife’ction to
communicate the same it of the
concerned priso’np_,fi:_’. V it shall be
furnished to for the appellants.
sd/–3
Iudgé