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Karnataka High Court · body

2016 DIGILAW 558 (KAR)

State v. Chandrashekar

2016-07-19

BUDIHAL R.B., MOHAN M.SHANTANAGOUDAR

body2016
JUDGMENT : MOHAN M. SHANTANAGOUDAR, J. 1. The judgment and order dated 30.11.2010 passed by the 5th Fast Track Court at Madhugiri, in S.C. No. 84/2009, is the subject matter of this appeal filed by the State praying for enhancement of sentence. By the impugned judgment, the trial Court has acquitted the accused for the offences punishable under Sections 341 and 307 of I.P.C. and convicted for the offences punishable under Sections 504 and 326 of I.P.C. The trial Court has also imposed the sentence of three months imprisonment with fine of Rs. 1,000/- for the offence punishable under Section 504 of I.P.C. and four months imprisonment with fine of Rs. 5,000/- for the offence punishable under Section 326 of I.P.C. Since the accused had already undergone imprisonment imposed by the trial Court as on the date of the judgment of the trial Court, the accused was not taken back to the custody. Both sentences were directed to run concurrently. Since the accused had already undergone imprisonment for the period imposed by the trial Court, he was directed to be released after collecting the amount of Rs. 6,000/-. 2. Case of the prosecution in brief is that Narasappa (P.W.1) lodged the complaint on 7.1.2009 alleging that there was dispute between the accused and the complainant/injured in respect of the agricultural land; both of them are of the same village; the accused with an intention to commit the murder of the complainant came near the complainant armed with the sharp cutting sickle (M.O.1) at about 5.30 p.m. on 7.1.2009 while the injured was going to his house from his agricultural land; thereafter, the accused tried to assault on the neck of the injured with the sharp cutting weapon (M.O.1), but the injured (complainant) avoided such blow consequent upon which the left fore-arm of the complainant is amputed in the said incident; immediately after the incident, the victim was taken to the Primary Health Center, Dodderi, Tumkur District, wherein he was given the first-aid treatment; the doctor (P.W.6) treated the injured and thereafter, the injured was sent to the Higher Medical Center i.e, the District Hospital at Tumkur. Ex.P.5 is the wound certificate issued by the doctor (P.W.6). Ex.P.5 is the wound certificate issued by the doctor (P.W.6). The complaint came to be lodged by the injured (P.W.1) as per Ex.P.1 at 7.30 p.m. on 7.1.2009 which came to be registered in Crime No. 3/2009 for the offences punishable under Sections 341, 504, 307 of I.P.C. by the Sub-Inspector of Police of Kadagathur Police Station. The police after investigation laid the charge sheet against the accused for the aforementioned offences. 3. In order to prove its case, the prosecution in all has examined 6 witnesses and got marked 5 Exhibits and 1 material object. On behalf of the defence no evidence was recorded. The trial Court, on evaluation of the material on record as aforementioned, convicted the accused for the offences punishable under Sections 326 and 504 of I.P.C. and sentenced him to undergo imprisonment of four months and three months respectively apart from sentencing him with fine. This appeal is filed by the State under Section 377 of Cr.P.C. praying for enhancement of sentence in respect of the offence punishable under Section 326 of I.P.C. only. 4. Sri. Vijayakumar Majage, learned Additional SPP taking us through the entire material on record submits that the accused has not filed any appeal questioning the judgment and order of conviction for the offences punishable under Sections 326 and 504 of I.P.C.; the accused had got clear intention in his mind to cause grievous hurt to the injured inasmuch as the accused had come to the spot with the sharp cutting sickle in his hand; he was having knowledge of the fact that he is committing the offence in the middle of the village that too at 5.30 p.m.; which means, the accused at the inception itself was not bothered about the society at large. The fact that the left arm of the injured is severed by such assault itself clearly reveals that the accused was merciless and the weapon used was very very sharp; the accused could not have come to the spot with the sharp cutting sickle and quarrelled with the injured if he did not have any intention in his mind to cause grievous injury to the injured. The entire life of the injured who is an agriculturist by profession, is ruined. He prays that severe punishment be imposed on the accused. According to him, the trial Court has not considered the aggravating circumstances while imposing the sentence. The entire life of the injured who is an agriculturist by profession, is ruined. He prays that severe punishment be imposed on the accused. According to him, the trial Court has not considered the aggravating circumstances while imposing the sentence. He also prays for imposition of heavy fine. Per contra, Sri. H.K. Ravi, learned Amicus Curiae appointed on behalf of the accused, submits that the accused is a young boy aged about 19 years; the incident has taken place because of the property dispute; the accused in his youthful attitude must have used certain force without there being any intention on his part; had there been any intention on the part of the accused to commit more harm to the injured, he would have definitely assaulted the victim on more than one occasion, more particularly, when the victim was not armed and helpless. He submits that, according to him, the quantum of sentence imposed by the trial Court is just and proper under the facts and circumstances of the case inasmuch as the parties must have forgotten the differences and must have been living in society peacefully. 5. Before proceeding further, it is relevant to note the versions of each of the witnesses in brief. P.W. 1 is the injured complainant. He has deposed about the motive for commission for the offence as well as about the actual commission of the offence by the accused. The complaint lodged by him is at Ex.P.1. He has identified the sharp cutting sickle (M.O.1) as the instrument used by the accused for the commission of the offence. P.W. 2 is the witness for the spot mahazar (Ex.P.2). He has turned hostile to the case of prosecution. P.W. 3 is the eye-witness to the incident in question. He has unequivocally deposed about the assault made by the accused on the victim at 5.30 p.m. on the date of the incident; P.W.3 shifted the victim to the hospital immediately after the incident. P.W. 4 is the doctor; based on the instruction of the Investigating Officer he drew the blood of the injured for the purpose of investigation. He has also deposed that on 24.3.2009, he examined the victim/injured and drew the blood based on the instruction of the Investigating Officer for the purpose of investigation. At that point of time, the left hand of the accused was amputed. He has also deposed that on 24.3.2009, he examined the victim/injured and drew the blood based on the instruction of the Investigating Officer for the purpose of investigation. At that point of time, the left hand of the accused was amputed. P.W. 5 is the witness for the seizure mahazar (Ex.P.4) under which M.O.1 was seized. P.W. 6 is the doctor in-charge of the Government Hospital at Madhugiri during the relevant point of time. He gave the first aid treatment to the victim/complainant at about 6.00 p.m. on the date of the incident and thereafter, he advised to shift the victim to the higher medical center. He has issued the wound certificate as per Ex.P.5. He has given the opinion on seeing the sickle (M.O.1) that the injury sustained by the victim is possible due to the assault by M.O.1. He has clearly deposed that not only both bones of left arm of the victim were fractured but also his cut left hand portion was hanging only with the aid of the skin of the hand, which means the left hand was practically amputed on the spot. however certain portion of the skin was intact and subsequently, the left fore arm was attached by the treatment. 6. As mentioned supra, the accused has not filed any appeal questioning the order of his conviction. However, in order to satisfy our conscious, we have perused the entire material on record meticulously to find out as to whether the accused is innocent or has committed the crime in question. The evidence of P.Ws.1 and 3 clearly discloses that the accused has committed the offence as alleged by the prosecution which definitely falls under Section 326 of I.P.C. P.W.1 being the injured and P.W.3 being the eye-witness have consistently and cogently deposed that the accused came to the spot armed with the sharp edged sickle and after scolding the complainant, the accused assaulted with the sickle on the left hand of the complainant, consequent upon which the left arm of the victim was practically severed except the skin portion. Though P.Ws.1 and 3 were cross-examined by the defence, not even a suggestion was made denying the nature of injury as well as the overt act of the accused. The incident has taken place at 5.30 p.m. on 7.1.2009 that too in the middle of the village. Though P.Ws.1 and 3 were cross-examined by the defence, not even a suggestion was made denying the nature of injury as well as the overt act of the accused. The incident has taken place at 5.30 p.m. on 7.1.2009 that too in the middle of the village. The presence of P.W.3 cannot be doubted on the spot. There is no reason as to why P.W.3 should depose against the accused if really the accused is not involved in the incident. The Court takes judicial notice of the fact that the victim will not leave the real culprit nor substitute with innocent person in place of real culprit for facing the trial. Having regard to the totality of the facts and circumstances of the case and as the evidence of P.Ws.1 and 3 is fully supported by the version of the doctor (P.W.6), in our considered opinion, the trial Court is justified in convicting the accused for the offences punishable under Sections 326 and 504 of I.P.C. 7. Coming to the question of sentence; on going through the material on record, we are of the clear opinion that the sentence imposed on the accused is on the lesser side. The accused was aged about 19 years. It is also not in dispute that misunderstanding between the accused and the complainant was relating to the agricultural land. Merely because of the aforementioned two circumstances, it cannot be said that the trial Court is justified in imposing only four months imprisonment for the offence punishable under Section 326 of I.P.C., more particularly, when the injured has lost his left fore arm. The evidence on record clearly reveals that the Civil Court decided the civil dispute in favour of the injured. The accused was enraged by the decree of the Civil Court which was passed against him. The accused in order to take revenge against the complainant has assaulted complainant/decree holder. 8. More over, the accused has come to the spot armed with the sharp cutting sickle (MO.1); the incident has taken place at 5.30 p.m. in the middle of the village; the victim was unarmed and helpless; the accused has taken undue advantage of such helpless condition of the victim while committing of the offence; because of the severe blow, the left fore arm of the victim is chopped. Immediately, the treatment was given by the doctor and hence there was no much bleeding. There was no provocation at all by the injured. The evidence further clearly reveals that the accused has high handedly come to the spot fully prepared to commit the crime in question. 9. Having gone through the aggravating and mitigating circumstances, we find that the trial Court is not justified in imposing four months sentence for the offence punishable under Section 326 of I.P.C. The maximum sentence prescribed for the offence punishable under Section 326 of I.P.C. is imprisonment of life or imprisonment of ten years with fine. However, having regard to the totality of the facts and circumstances of the case and by agreeing with the submission made by the learned Amicus Curiae that the accused was a young boy, aged about 19 years and as there is chance for his improvement, we deem it proper to impose two years sentence of imprisonment apart from imposing the fine of Rs. 1,00,000/- with default clause, (since the victim (P.W.1) has to go without any compensation). Since the victim has to suffer all through his life and as his left forearm is amputed and as he is aged about 65 years, he has to be compensated at least to certain extent. While imposing the sentence of fine also, we have taken into consideration the submission made by the learned Amicus Curiae that the accused is a poor agriculturist. Looking to the facts and circumstances of the case, we deem it proper to impose the fine of Rs. 1,00,000/- with default clause. 10. Accordingly, the following order is made: (i) The judgment and order of conviction dated 30.11.2010 passed in S.C. No. 84/2009 by the trial Court imposing the sentence of imprisonment of four months on the accused with fine of Rs. 5,000/- for the offence punishable under Section 326 of I.P.C. is hereby modified. The accused is sentenced to undergo imprisonment of two years and to pay the fine of Rs. 1,00,000/- for the offence punishable under Section 326 of I.P.C. In default of payment of fine of Rs. 1,00,000/-, the accused shall undergo further imprisonment of one year. (ii) The sentence imposed by the trial Court for the offence punishable under Section 504 of I.P.C. remains unaltered. (iii) The sentences shall run concurrently. 1,00,000/- for the offence punishable under Section 326 of I.P.C. In default of payment of fine of Rs. 1,00,000/-, the accused shall undergo further imprisonment of one year. (ii) The sentence imposed by the trial Court for the offence punishable under Section 504 of I.P.C. remains unaltered. (iii) The sentences shall run concurrently. (iv) Accused is entitled to the benefit of set-off as provided under Section 428 of Cr.P.C. (v) In case of deposit of fine by the accused, the entire fine amount shall be disbursed in favour of the injured (P.W.1 Narasappa) as compensation under Section 357 of Cr.P.C. (vi) The appeal is allowed in part accordingly. (vii) The trial Court is directed to secure the presence of accused to undergo the remaining sentence. 11. We place on record the valuable services rendered by Sri. H. K. Ravi, learned Amicus Curiae for the accused in assisting the Court. Registry is directed to pay a sum of Rs. 10,000/- (Rupees ten thousand only) as honorarium to the learned Amicus Curiae.