- 1 - NC: 2025:KHC:3731 CRL.A No. 1390 of 2012 C/W CRL.A No. 1340 of 2012 CRL.A No. 1345 of 2012 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE V SRISHANANDA CRIMINAL APPEAL NO. 1390 OF 2012 C/W CRIMINAL APPEAL NO. 1340 OF 2012 CRIMINAL APPEAL NO. 1345 OF 2012 IN CRL.A No. 1390/2012 BETWEEN: TAMANNA, S/O DEVANAND, AGED ABOUT 24 YEARS, CHRISTIAN, MECHANIC, R/AT CSI HOSPITAL COLONY, CHIKKABALLAPURA. …APPELLANT (BY SRI. M. NARASAPPA, ADVOCATE FOR SRI.P.V. JAINAPUR.,ADVOCATE) AND: THE STATE OF KARNATAKA, BY ITS STATE PUBLIC PROSECUTOR, THROUGH THE TOWN POLICE STATION, CHIKKABALLAPURA. REPRESENTED BY ITS STATE PUBLIC PROSECUTOR HIGH COURT BUILDING, BANGALORE - 560 001. …RESPONDENT (BY SRI.CHANNAPPA ERAPPA, HCGP) Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:3731 CRL.A No. 1390 of 2012 C/W CRL.A No. 1340 of 2012 CRL.A No. 1345 of 2012 THIS CRL.A. IS FILED U/S.374(2) CR.P.C BY PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT, ORDER OF SENTENCE DATED 28.11.2012 PASSED BY THE DIST. & S.J., CHIKKABALLAPUR IN S.C.NO.2/2008 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 341,307 R/W 149 OF IPC.THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I. FOR 5 YEARS AND TO PAY A FINE OF RS.1,000/- , IN DEFAULT TO PAY FINE, HE SHALL UNDERGO S.I. FOR 1 MONTH FOR THE OFFENCE P/U/S 307 R/W 149 OF IPC. IN CRL.A NO. 1340/2012 BETWEEN: SANNAULLA PASHA S/O AHAMAD, AGED ABOUT 23 YEARS, R/AT NEAR KSRTC DEPOT, CHIKKABALLAPUR - 562 101. ...APPELLANT (BY SRI. A H BHAGAVAN, ADVOCATE) AND: STATE BY CHIKKABALLAPUR TOWN POLICE STATION. REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BANGALORE - 560 001. ...RESPONDENT (BY SRI. CHANNAPPA ERAPPA, HCGP) THIS CRL.A. IS FILED U/S.374(2) CR.P.C BY PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND - 3 - NC: 2025:KHC:3731 CRL.A No. 1390 of 2012 C/W CRL.A No. 1340 of 2012 CRL.A No. 1345 of 2012 SENTENCE DATED 28.11.2012 PASSED BY THE DIST. & SESSIONS JUDGE, CHICKBALLAPUR IN S.C.NO.2/2008 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 341,307 R/W 149 OF IPC.THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I. FOR 5 YEARS AND TO PAY A FINE OF RS.1,000/-, IN DEFAULT TO PAY FINE, HE SHALL UNDERGO S.I. FOR 1 MONTH FOR THE OFFENCE P/U/S 307 R/W 149 OF IPC. IN CRL.A NO. 1345/2012 BETWEEN: 1. GAJENDRA, S/O NAGARAJ, AGED ABOUT 24 YEARS, RESIDING AT SUNNAKALLU STREET, CHICKBALLAPUR & DIST. PIN CODE - 562 101. 2. NAVEEN, S/O SINAPPA, AGED ABOUT 24 YEARS, BEHIND T.B., CHIKBALLAPUR TALUK, PIN CODE - 562 101. ...APPELLANTS (BY SRI.S.A. SUDHINDRA, ADVOCATE FOR SRI.L.NARASIMHA MURTHY, ADVOCATE) AND: STATE OF KARNATAKA, THROUGH TOWN POLICE STATION, CHICKBALLAPUR TALUK- 562 101. ...RESPONDENT (BY SRI.CHANNAPPA ERAPPA, HCGP) THIS CRL.A. IS FILED U/S.374(2) CR.P.C BY PRAYING - 4 - NC: 2025:KHC:3731 CRL.A No. 1390 of 2012 C/W CRL.A No. 1340 of 2012 CRL.A No. 1345 of 2012 TO SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE DATED 28.11.2012 PASSED BY THE DIST. & SESSIONS JUDGE, CHICKBALLAPUR IN S.C.NO.2/2008 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 341,307 R/W 149 OF IPC. THESE APPEALS, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri.P.V.Jainapur, Sri.A.H.Bhagavan, Sri.S.A.Sudhindra for Sri.L.Narasimha Murthy, learned counsels for the appellants and learned High Court Pleader for the respondent/State. 2. Appellants are accused Nos.1, 2, 3 and 5. In S.C.No.2/2008, on the file of the District and Sessions Judge, Chikkaballapur, who have been convicted for the offences punishable under Sections 341, 307 read with Section 149 of Indian Penal Code (hereinafter referred to as 'IPC' for short) and sentenced as under: "1. The benefit of probation of offenders is not extended to the accused. - 5 - NC: 2025:KHC:3731 CRL.A No. 1390 of 2012 C/W CRL.A No. 1340 of 2012 CRL.A No. 1345 of 2012 2. Accused No.1 to 5 are hereby sentenced for the offence punishable under Section 307 r/w.149 of Indian Penal Code, to undergo Rigorous imprisonment for 05 years and to pay a fine of Rs.1,000/-, IDSI for one month. 3. Accused are further convicted of the offence punishable under section 341 r/w.149 of Indian Penal Code, are sentenced to under to Simple Imprisonment for 01 month, and to pay fine of Rs.1,000/-, IDSI for 01 month. 4. The above substantive sentence are ordered to run concurrently. 5. The accused is entitled to have the benefit of set-off, of the period of detention, if they have undergone, in Judicial custody of this case, as provided under section 428 of Code of Criminal Procedure". 3. The appellants have challenged the validity of the conviction judgment and order of sentence in these appeals. 4. Brief facts of the case which are utmost necessary for disposal of these appeals are as under: 4.1 A complaint came to be lodged with Chikkaballapur Town Police on 16.02.2007, contending - 6 - NC: 2025:KHC:3731 CRL.A No. 1390 of 2012 C/W CRL.A No. 1340 of 2012 CRL.A No. 1345 of 2012 that on 12.02.2007 at about 8.45 p.m., near a place behind the Travelers Bungalow Chikkaballapur, PW-2 Somashekar being the son of the complainant, had gone to recover the loan amount to the house of Nagaraj, he did not find Nagaraj there and he was returning to town. At that juncture, he met accused No.1, 15 feet away from the house of Nagaraj. When he enquired accused No.1 about the repayment of the loan amount, there was a quarrel picked up by him, whereby he restrained him on the public road and other accused persons joined there and all of them formed an unlawful assembly and they made an attempt take away the life of PW-2 and voluntarily caused hurt with dangerous weapons like clubs by hitting on the head and other body parts of PW-2 and caused bleeding injuries. At that juncture, one Anand and Immamsab intervened and pacified the quarrel and shifted PW-2 to the hospital for treatment. Somashekar was given first aid treatment and then shifted to NIMHANS hospital, Bengaluru. After attending the injured in Bengaluru, - 7 - NC: 2025:KHC:3731 CRL.A No. 1390 of 2012 C/W CRL.A No. 1340 of 2012 CRL.A No. 1345 of 2012 mother of the PW-2 came back to Chikkaballapur and lodged the complaint on 16.02.2007. 4.2. Based on such complaint, Police registered a case in Crime No.13/2007 for the offences punishable under Section 341, 307 read with Section 149 of Indian Penal Code (hereinafter referred to as 'IPC' for short) and conducted the detailed investigation. During the course of investigation all the accused persons were apprehended and statements of the eye witnesses were recorded. Spot mahazar was conducted and pursuant to the voluntary statement given by the accused persons, recovery of the weapons used in the incident had also taken place. After completion of the investigation, charge-sheet came to be filed. 5. Learned Trial Magistrate took cognizance of the aforesaid offences and committed the matter to the learned Sessions Judge. 6. Learned Sessions Judge secured the presence of the accused and after compliance of Section 207 of - 8 - NC: 2025:KHC:3731 CRL.A No. 1390 of 2012 C/W CRL.A No. 1340 of 2012 CRL.A No. 1345 of 2012 Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.' for short) charges for the offences under Sections 341, 307 read with Section 149 of IPC were framed. Accused persons pleaded not guilty therefore, trial was held. 7. In order to bring home the guilt of the accused persons, 10 witnesses were examined on behalf of the prosecution comprising of complainant, injured, eye witnesses, spot and recovery mahazar witnesses, Doctor who gave the wound certificate and investigation agency. Prosecution placed on record 10 documentary evidences which were executed and marked as Exs.P.1 to P.10 comprising of complaint, spot mahazar, seizure mahazar, wound certificate, FIR and FSL report. 8. During the course of cross-examination, few contradictions are elicited in the evidence of the prosecution witnesses which were marked as Exs.D1 to D3. - 9 - NC: 2025:KHC:3731 CRL.A No. 1390 of 2012 C/W CRL.A No. 1340 of 2012 CRL.A No. 1345 of 2012 9. Material objects namely a shirt, pant and clubs held by the accused persons were marked as M.Os.1 to 5. 10. On conclusion of recording of evidence of the on behalf of the prosecution, learned Trial Judge recorded the accused statement as is contemplated under Section 313 of Cr.P.C. All the accused persons have denied the incriminating materials found against them, but did not choose to place their version on record in the form of written submissions as is contemplated under Section 313 (4) of the Cr.P.C. There was no defence evidence placed on record on behalf of the accused. 11. Thereafter, learned Trial Judge heard the parties in detail and on cumulative consideration of oral and documentary evidence on record convicted all the accused persons for the offences punishable under Sections 307, 341 read with Section 149 of IPC and sentence as referred to supra. - 10 - NC: 2025:KHC:3731 CRL.A No. 1390 of 2012 C/W CRL.A No. 1340 of 2012 CRL.A No. 1345 of 2012 12. Being aggrieved by the same, accused Nos.1 and accused Nos.2, 3 and 5 have filed separate appeals. 13. Separate appeal filed by the accused No.4 came to be dismissed as abated, on account of death of the appellant/Sri.Rajesh. 14. Learned counsels representing the appellants in each of these cases, reiterating the grounds that in the appeal memorandum contended that material evidence on record is not properly appreciated by the learned Trial Judge while recording order of conviction for the offence punishable under Section 307 of IPC. 15. They further contended that all ingredients required to attract the offence under Section 307 of IPC is not established by the prosecution and therefore, appeal needs to be allowed. 16. They would also further contend that restraining the free movement of the PW-2 was initially by accused No.1, even according to the case of the prosecution. Therefore conviction of the appellants for the offence - 11 - NC: 2025:KHC:3731 CRL.A No. 1390 of 2012 C/W CRL.A No. 1340 of 2012 CRL.A No. 1345 of 2012 under Section 341 of IPC is impermissible. The learned counsels for the appellants also emphasized the fact that there is no proper material on record to prove the unlawful assembly and even according to the case of the prosecution, incident has occurred at the spur of the moment. Therefore, the appellants cannot be convicted with the aid of Section 149 of IPC and at the most, it is the first accused who had picked up the quarrel, must be punished and other appellants are to be acquitted. 17. Alternatively, Sri.Jainapur, Sri.A.H.Bhagvan and Sri.S.A.Sudhindra, learned counsels for the appellants contend that in the event, this Court upholding in the conviction order, since the incident is of the year 2007, the custody period already undergone by the appellants may be treated as period of imprisonment by enhancing the fine amount reasonably and a portion of the fine amount would be paid as compensation to the PW-2 and sought for allowing the appeal to that extent. They would further contend that since there are no criminal antecedents, - 12 - NC: 2025:KHC:3731 CRL.A No. 1390 of 2012 C/W CRL.A No. 1340 of 2012 CRL.A No. 1345 of 2012 confirming jail sentence would act as harsh, that too, at this distance of time. 18. Per contra, Sri.Channappa Erappa, learned High Government Pleader for the respondent supports the impugned Judgement. 19. He would further contend that the M.Os.3 to 5 being the clubs, and appellants have chosen to assault PW-2 with the help of M.Os.3 to 5 on the head, there are sufficient materials to infer the intention of the appellants in taking away the life of the PW-2 which would be sufficient enough to maintain the order of conviction under Section 307 of IPC and thus, sought for dismissal of the appeal. 20. He pointed out that though initially it is accused No.1 who restrained the free movement of PW-2 and picked up the quarrel, all the other appellants have joined with deadly weapons in their hands into the quarrel and mercilessly attacked PW-2 resulting in, bleeding injuries. He pointed out that but for the timely intervention of the - 13 - NC: 2025:KHC:3731 CRL.A No. 1390 of 2012 C/W CRL.A No. 1340 of 2012 CRL.A No. 1345 of 2012 eye witnesses Anand and Immansab, who rescued PW-2 from the clutches of the appellants, the appellants would have committed the murder of PW-2. Therefore, necessary ingredients have been established by the prosecution by placing cogent and convincing evidence on record and thus, sought for dismissal of the appeal. 21. In respect of alternate submission, Sri.Channappa Erappa, learned High Court Government Pleader contends that if this Court shows mercy for people like appellants, the same would encourage the similarly placed perpetrators of the crime and sends a wrong message to the society and thus, sought for dismissal of the appeal in toto. 22. Having heard the parties in detail, this Court perused the material on record meticulously. On such perusal of the material on record, following points would arise for consideration: 1) Whether the material evidence on record is sufficient enough to maintain the conviction of the - 14 - NC: 2025:KHC:3731 CRL.A No. 1390 of 2012 C/W CRL.A No. 1340 of 2012 CRL.A No. 1345 of 2012 appellants for the offences punishable under Sections 307 and 341 of IPC r/w Section 149 of IPC? 2) Whether the appellants make out a case that the impugned judgment is suffering from legal infirmity and perversity and thus calls for interference? 3) Whether the sentence is excessive and needs modification? 4) What order? REG.POINT NOS.1 AND 2: 23. In the case on hand, the incident has occurred on 12.02.2007, at about 9.00 p.m., near Travelers Bangalow of Chikkaballapur, stands established not only from the complaint averments but also from the oral testimony of PW-3/Ananda and PW-4 /Immamsab, though they have not supported the case of the prosecution in toto, in pacifying the quarrel and shifting the injured person to the hospital. 24. It is settled principles of law and requires no emphasis that a testimony of a hostile witness cannot be - 15 - NC: 2025:KHC:3731 CRL.A No. 1390 of 2012 C/W CRL.A No. 1340 of 2012 CRL.A No. 1345 of 2012 thrown out in toto. On the contrary such portion of the material evidence which lends support to the case of the prosecution can very well be accepted from the testimony of the hostile witness as well. As such, from their evidences, the incident stood established. 25. Now coming to the question of the identity of the appellants. PW-2/Somashekar specifically deposed that when he had been to the house of Nagaraj for demanding the repayment of the loan, he has noticed Nagaraj was not in station; while returning from house of the Nagaraj towards the Town, on the way he met accused No.1. He demanded the loan amount from him. At that juncture, quarrel has taken place and thereafter, accused Nos.2 to 5 have joined the quarrel. 26. It is settled principles of law and requires no emphasis that testimony of an injured eye witness shall be kept at higher pedestal. More so, when PW-2 had no reason to falsely implicate the remaining accused persons by allowing the real culprits to escape away from the - 16 - NC: 2025:KHC:3731 CRL.A No. 1390 of 2012 C/W CRL.A No. 1340 of 2012 CRL.A No. 1345 of 2012 rigors of law. In the background of such settled legal principle, when the oral testimony of PW-2 is appreciated, there is a specific mention as to the appellants being the persons who assaulted PW-2 on the day of incident. 27. PW-3 and PW-4, no doubt did not support the case of the prosecution in specifically deposing about the overt acts said to have been committed by the appellants and their consistence say is that they were inside the house and when they heard loud hue and cry, they came out and saw Somashekar. There were injuries on his head, and he was lying on the road, and somebody shifted him to hospital. The material evidence of those hostile witnesses is to be taken into consideration only to the extent of injuries found on to the head of the PW-2. 28. Doctors who examined PW-2. Sri.Diwakar, and Sri.Prakash are examined as PW-7 and PW-9. The wound certificate issued by the Doctor is marked at Ex.P.6. The injuries noted therein are grievous in nature and material - 17 - NC: 2025:KHC:3731 CRL.A No. 1390 of 2012 C/W CRL.A No. 1340 of 2012 CRL.A No. 1345 of 2012 on record would go to show that PW-2 was inpatient in NIMHANS hospital, for a considerable period of time. 29. FSL report marked at Ex.P.10 would fortify the oral testimony of PW-2, so also the recovery of M.Os.3 to 5 would sufficiently corroborate the oral testimony of PWs- 1 and 2. 30. As such, this Court has no hesitation whatsoever in upholding the order of conviction of the appellants for the offences under Sections 341, 307 r/w 149 of IPC, inasmuch as the deadly weapon has been used in the incident and the body part that has been chosen by the appellants to assault PW-2 is the vital part, viz., head. Therefore, point No.1 is answered in the affirmative and point No.2 in the negative. REG.POINT NOS.3: 31. Learned counsels representing the appellants in all these appeals in chorus submitted that the incident is a very old incident and post incident there is no enmity - 18 - NC: 2025:KHC:3731 CRL.A No. 1390 of 2012 C/W CRL.A No. 1340 of 2012 CRL.A No. 1345 of 2012 nurtured on either side. Therefore, taking note of the same, custody period already undergone by the appellants may be treated as period of imprisonment. More so, when there are no criminal antecedents to the appellants herein. They also submits that fine amount may be enhanced reasonably and portion of the fine amount can be paid as compensation to PW-2 as well. 32. Learned High Court Government pleader, however opposed the said submission by contending that such leniency can not be shown to the appellants. 33. Taking into consideration, the above rival contentions, it is seen that there are no criminal antecedents to the appellants. Further, post incident, there is no disharmony between the appellants and the PW-2. 34. In fact PW-2 who appeared before the Court today, also submitted that if reasonable amount of compensation is awarded, he has no objection in setting aside the Jail sentence. - 19 - NC: 2025:KHC:3731 CRL.A No. 1390 of 2012 C/W CRL.A No. 1340 of 2012 CRL.A No. 1345 of 2012 35. Though, in a matter of this nature that cannot be any compromise, taking note of the fact that the appellants and PW-2 are to continue in the same place and to maintain harmony among them, in future, this Court is of the considered opinion that if the custody period already under gone by the appellants, if treated a period of imprisonment by enhancing the fine amount in a sum of Rs.75,000/- each and the same amount is paid as compensation to the PW-2 ends of justice would be met in the peculiar facts and circumstances of the case on hand. Accordingly, point No.3 is answered partly in the affirmative. REG.POINT NO.4: 36. In view of the findings of this Court on point Nos.1 to 3 as above, following: ORDER i) Crl.A.No.1390 of 2012, Crl.A.No.1340 of 2012, and Crl.A.No.1345 of 2012 are allowed-in- part. - 20 - NC: 2025:KHC:3731 CRL.A No. 1390 of 2012 C/W CRL.A No. 1340 of 2012 CRL.A No. 1345 of 2012 ii) While maintaining the conviction of the appellants for the offences punishable under Sections 307, 341 of IPC r/w Section 149 of IPC, the custody period already undergone by the appellants is treated a period of sentence by enhancing the fine amount in a sum of Rs.75,000/- (exclusive of fine amount imposed by the Trial Court and paid by the appellants) on or before 28.02.2025. iii) Failure to pay enhanced fine amount, appellants are directed to undergo imprisonment as ordered by the Trial Judge in the impugned judgment. iv) After receipt of the fine amount sum of Rs.3,00,000/- is ordered to be paid as compensation to PW-2 under due identification. - 21 - NC: 2025:KHC:3731 CRL.A No. 1390 of 2012 C/W CRL.A No. 1340 of 2012 CRL.A No. 1345 of 2012 Office is directed to return the Trial Court records along with copy of this order forthwith for issuing modified conviction order. Sd/- (V SRISHANANDA) JUDGE BKN List No.: 1 Sl No.: 38