Accused no.2 on the spot is as an accomplice of Accused
no.3 and hence, Section 34 of the IPC is clearly made out.
The case of the defence is that when the Accused Nos.2 & 3
had arrived at the spot, they had no intention to inflict
the nature of injuries on the injured persons. Even if it
is assumed it is true, it cannot be denied that common
intention and the pre-meeting of minds can take place at
the spur of the moment itself during the course of the
incident.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). 1694/2014
THE STATE OF KARNATAKA Vs BATTEGOWDA & ORS.
Dated: January 09, 2025.
1. Heard learned Additional Advocate General for the
appellant-State and the learned senior counsel for the
respondents at length.
2. This appeal has been filed by the State of Karnataka,
challenging the order of the High Court of Karnataka at
Bangalore dated 17.08.2012 wherein the appeal of the
accused persons (respondent nos.1 to 3 herein) was partly
allowed.
3. The brief facts of the case are that on 18.09.1999 an
argument took place between the complainant (PW1) and the
accused near a construction site in their neighborhood
between 7 to 8 in the morning. It was alleged that the
complainant has sold a piece of land to the mother
(Shivamma) of PW5 (Nataraj) and the accused who were father
and his two sons claimed a share on the property which was
not being given to him. That is the dispute between the
parties. It is pertinent to mention here that both the
complainant and the accused are blood relatives and
inasmuch as Battegowda/Bettegowda (Accused No.1) and PW 1
are real brothers and Accused Nos.2 & 3 are the sons of
Accused No.1.
Prosecution case is that on 18.09.1999, at about 6 to
7 a.m., Accused No.1 and his two sons (Accused Nos.2 & 3)
had demolished the partly constructed wall on the said land
without the knowledge of the complainant about which he
came to know at about 8.00 a.m. by the purchaser to whom
the land was sold. The complainant also saw that Accused
No.1 was standing outside his house and when he was called
to come, he refused. Later on, Accused No.1 and his two
sons (Accused Nos.2 & 3) picked up a fight with the
complainant when he went to the site, Accused No.1 and his
elder son K.B.Vijayakumar (Accused No.2) and his second son
K.B.Jayakumar @ Suresh (Accused No.3) were present. The
complainant wanted to settle the matter with Accused No.1,
who was his brother and was trying to console him and had
told him that he would be given his share of that land but
Accused No.1 refused to listen to any reason. At that time
when he was trying to settle the matter with Accused No.1,
his son (Accused No.3) took out a knife from his pocket and
stabbed the complainant two or three times on his stomach.
The assault was so severe that even parts of his intestines
were coming out from his stomach. He caught hold to his
stomach and was trying to hold on when Accused No.1 caught
hold of him from behind and at that time Accused no.3
stabbed him again on his chest. Meanwhile, the
complainant’s son K.V.Shashidar (PW7) came up to rescue his
father but by the time complainant had collapsed before
that he could see that his son was also assaulted by the
accused persons with their weapons as the Accused no.2 was
having a chopper, and Accused no.3 a knife.
4. The FIR for the said incident was registered for the
offences punishable under Sections 341/324/307 read with 34
of the Indian Penal Code (hereinafter called “the IPC”).
Police after its investigations, filed charge sheet under
the same provisions. The matter was committed to Sessions
at Mysore and the Sessions Court ultimately came to the
conclusion that there were actually no intention to kill,
but considering the nature of the grievous injuries and the
weapons used, all the three accused persons were convicted
under Sections 326 & 341 read with 34 of the IPC and
acquitted them under Section 307 of the IPC and were
sentenced for six years RI each along with the stipulated
fine and default stipulation.
5. In appeal, the High Court had believed the incident
as such on 18.09.1999, but nevertheless had partly allowed
the appeal of the accused persons and reduced the sentence
of Accused no.3 (K.B.Jayakumar @ Suresh) to two years RI
and acquitted the Accused No.1 i.e. Battegowda/Bettegowda,
the father of the Accused Nos.2 & 3 on the ground that
there was no enough evidence for his catching hold of the
injured person from behind, though he was presents on the
spot he had no active role in the said incident. Regarding
Accused no.2 (K.B.Vijayakumar) the High Court came to the
conclusion that he was carrying a chopper in his hand with
which he was not armed when he initially came to the spot,
he only brought it later but the injury which he had
inflicted on the injured persons were only in the hand
which cannot be in the nature of the Section 326 of the IPC
and therefore, the conviction was converted from Section
326 to that of Section 324 of the IPC and since he had
already undergone the sentence of 16 days by that time, his
sentence was also reduced to the period already undergone,
although the fine was increased from Rs.1,000/- to
Rs.75,000/-. Regarding Accused no.3 (K.B.Jayakumar @
Suresh), sentence was reduced from 6 years to 2 years
though conviction under Section 326 was upheld.
6. As far as the finding against Accused no.1, the
father, Battegowda/Bettegowda is concerned the High Court
had taken a possible view about the presence of the Accused
No.1 and therefore we need not enter with that dispute or
to the acquittal of the Accused No.1 by the High Court.
7. The crucial question before this Court, however, is
whether the Accused No.2 whose conviction was converted
from Section 326 to Section 324 of the IPC and he has been
sentenced to only 16 days of imprisonment, was proper,
inasmuch it has been done after the High Court came to the
conclusion that Section 34 of the IPC even for the Accused
no.2 is not made out. This finding we are unable to accept.
Both Accused Nos.2 & 3 had together assaulted the PW1 & PW7
(father and son). They were armed with deadly weapon
whereas the Accused No.3 was armed with a knife and Accused
No.2 had in his hand a chopper. Merely for the reason that
the injuries inflicted by Accused no.2 (K.B.Vijayakumar)
were less than what was inflicted by Accused no.3
(K.B.Jayakumar @ Suresh) and the injuries were not a
grievous. Conviction under Section 326 cannot be converted
to Section 324. Irrespective of the facts whether the
injuries caused to the injured persons (PW1 & PW7) were
only on the hand, the fact remained that the presence of
Accused no.2 on the spot is as an accomplice of Accused
no.3 and hence, Section 34 of the IPC is clearly made out.
The case of the defence is that when the Accused Nos.2 & 3
had arrived at the spot, they had no intention to inflict
the nature of injuries on the injured persons. Even if it
is assumed it is true, it cannot be denied that common
intention and the pre-meeting of minds can take place at
the spur of the moment itself during the course of the
incident.
8. In this context, learned additional advocate general
for the State has relied upon the judgment of this Court in
the case of “Dharnidhar vs. State of U.P. & Ors., reported
in 2010 (7) SCC 759 para 39, which we also find is
applicable to the facts of the case.
9. Although, the High Court came to the conclusion that
Section 34 is not made out, no valid reason has been
assigned as to how it is so.
10. Considering these facts stated above, we are of the
opinion that Section 34 of the IPC is made out in this case
for Accused no. 2 and Accused no. 3. Changing the finding
from Section 326 to Section 324 of the IPC and the sentence
of the Accused No.2 to the period already undergone is
therefore wrong.
11. Accordingly, we allow the State’s appeal to that
extent that we convict the Accused No.2 under Section 326
read with 34 of the IPC and sentence him for the same
period as was given by the High Court to Accused No.3 i.e.
two years RI along with the fine of ₹ 75,000/-. He shall
surrender within a period of four weeks from today and
undergo the period of remaining sentence in jail.
12. The present appeal is partly allowed in the above
terms.
13. Pending application(s), if any, shall stand disposed
7
of.
......................J.
[SUDHANSHU DHULIA]
......................J.
[PRASHANT KUMAR MISHRA]
New Delhi;
January 09, 2025.
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