MANJU DEVADIGA vs STATE OF KARNATAKA
- Court
- Karnataka High Court
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ND
DATED THIS THE 2 DAY OF NOVEMBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 287 OF 2016 (C)
BETWEEN:
1. MANJU DEVADIGA
S/O LATE GOVINDADEVADIGA
R/O BAITUMANE
BIJOOR VILLAGE
KUNDAPURA TALUK - 575 219.
…APPELLANT
(BY SRI. HAREESH BHANDARY T., ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY BYNDOOR POLICE STATION
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
BANGALORE - 560 001.
…RESPONDENT
(BY SRI. K.NAGESHWARAPPA, HCGP)
THIS CRL.A. IS FILED U/S 374(2) CR.P.C. PRAYING TO
SET ASIDE THE JUDGMENT DATED 21.11.2015 PASSED BY THE
ADDL. DISTRICT AND SESSIONS JUDGE, UDUPI (SITTING AT
KUNDAPURA), KUNDAPURA IN S.C.NO.7/2015 - CONVICTING
THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 326 OF I.P.C.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
Digitally
signed by
GEETHA P G
Location:
HIGH COURT
OF
KARNATAKA
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CORAM: HON'BLE MR. JUSTICE G BASAVARAJA
ORAL JUDGMENT
Learned counsel for the a ppellant is present.
2. The appellant, who is accused no.1-Manju Devadiga
has preferred this appeal against the judgment of conviction
and order on sentence dated 21.11.2015 in S.C.No.7/2015
passed by the Additional District and Sessions Judge, Udupi,
sitting at Kundapura.
3. The brief facts leading to this appeal are that, the
PSI of Byndoor Police Station submitted a charge sheet against
accused nos.1 and 2 for the offence under Sections 504, 506,
307 read with 34 of IPC. It is alleged by the prosecution that,
on 14.11.2014 at 09:00 p.m. at Kalavina Bagilu Road, near
Domblikeri, Bijoor Village, Kundapura Taluk, when CW1-
Shrinivasa Devadiga was in the house, with respect to a land
dispute accused nos.1 and 2 intentionally insulted the said CW1
by abusing him in filthy language, thereby gave provocation
intending that such provocation will cause the said CW1 to
commit any other offence. Accused nos.1 and 2, in furtherance
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of their common intention, accused no.2-Thimma Devadiga
instigated accused no.1-Manju Devadiga to commit the murder
of CW1-Shrinivasa Devadiga. Accused no.1-Manju Devadiga
took out the chopper from the house and forcibly assaulted
over the neck of CW1 with an intention to commit murder of
CW1. As a result, CW1 sustained grievous injury over the below
portion of the left ear and sustained simple injury over left
portion of neck. Further, it is alleged that accused Nos. 1 and 2,
in furtherance of their common intention, committed the
offence of criminal intimidation by threatening CW-1, Shrinivas
Devadiga, with the intention of causing alarm to him or
compelling him to do an act which he was not legally bound to
do, or to omit to do an act which he was legally entitled to do.
Thus, accused have committed the alleged offences.
4. After filing the charge sheet, a case was registered
in C.C.No.401/2015 on the file of I Additional Civil Judge and
JMFC Court, Kundapura. Thereafter case was committed to the
Court of Sessions and registered in S.C.No.7/2015. Accused
no.1 was in judicial custody till passing of the impugned
judgment. On hearing the arguments, trial Court has framed
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the charges for the alleged offences, same was read over and
explained to the accused. Having understood the same,
accused pleaded not guilty and claimed to be tried.
5. To prove the guilt of the accused, in all 12
witnesses were examined as PWs.1 to 12. 14 documents were
marked as Exs.P1 to P14. On closure of prosecution said
evidence, statement under Section 313 of Cr.P.C. was
recorded. Accused have totally denied the evidence of
prosecution witnesses. However, they did not choose to lead
any defence evidence on their behalf. But one document is
marked as Ex.D1. Two material objects were marked as
M.O.Nos.1 and 2.
6. Having heard the arguments on both sides, trial
Court has acquitted accused no.2 for the offence under
Sections 504, 307, 506 r/w 34 IPC. Accused no.1-Manju
Devadiga was acquitted for the offence under Sections 504,
307, 506 r/w 34 IPC. Accused no.1 was convicted for the
offence under Section 326 of IPC. The trial Court has passed a
sentence to undergo for one year and to pay a fine of
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Rs.2,000/-, in default of payment of fine, accused no.1 shall
undergo simple imprisonment for another three months for
having found guilty under Section 326 of IPC. Being aggrieved
by this judgment of conviction and order on sentence passed by
the trial Court, accused no.1-Manju Devadiga has preferred this
appeal.
7. The learned counsel for the appellant would submit
that the impugned judgment of conviction and order on
sentence passed by the trial Court is illegal, unreasonable and
arbitrary. It is further submitted that the Court below has
committed serious material irregularities and illegalities in
appreciating the material evidence available on record and
come to a wrong conclusion and has erred in convicting the
appellant for the aforesaid offence. The entire approach made
by the Court below in to the matter in dispute is erroneous in
law. It is further submitted that the Court below has failed to
properly appreciate the contradictions, omissions and
commissions available on record. It is further submitted that,
the complainant and his family members are closer relative of
the accused. Admittedly, there is a civil dispute with regard to
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the joint family property in which they are staying. While the
plaintiff and his family members are staying in a portion of the
said property, in the remaining portion the accused and his
family members are stayed. Having regard to this background
the Court below is not justified in convicting the appellant for
the offence punishable under Section 326 of IPC.
8. Further it is submitted that, as per the evidence of
PW.8-Doctor, who treated the injured, has deposed that injury
no.1 is grievous in nature. From a reading of Section 320 of
IPC, it is very clear that injury no.1 would not come within the
meaning of grievous hurt as explained under Section 320 of
IPC. It is the case of the prosecution that the injured was first
treated at Government Hospital in Kundapur, thereafter shifted
to Manipal. The nature of injury caused does not warrant any
such treatment as made by the prosecution. No records have
been produced by the prosecution to show that the injured was
first treated at Government Hospital, Kundapura. The injured
was admitted to hospital at Manipal by his close relative one
Sri . Raghavendra. The said Raghavendra is working in Manipal
Hospital. Prosecution has not examined the said witness. No
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weapon was used by any of the accused and the nature of
injuries caused to PW1 would support the case of the appellant.
There was a free fight between two parties because of a
property dispute and the injury caused to PW1 has been
glorified by creating documents. The incident took place in the
spur of the moment. There was no intention on the part of the
appellant to commit the offence. There are lots of material
omissions and contradictions in the evidence of prosecution
witnesses. The trial Court has not properly appreciated the
evidence on record in accordance with law and facts. On all
these grounds, he sought for allowing this appeal.
9. As against this, learned HCGP would submit that the
State has not preferred any appeal against acquittal of accused
nos.1 and 2 for the offence under Sections 307, 504 and 506
read with 34 IPC and the trial Court has properly appreciated
the evidence on record in accordance with law and facts and
sought for dismissal of this appeal.
10. Having heard the arguments on both sides and
perusal of the materials placed before this Court, the following
points would arise for my consideration:
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i. Whether the appellant/accused no.1 has made
out a ground to interfere with the impugned
judgment of conviction and order on sentence
passed by the trial Court?
ii. Whether the trial Court has committed an
error in not giving set off under Section 428
Cr.P.C?
iii. What order?
11. My answer to the above points are as under:
Point No.1 - Negative
Point No.2 - Affirmative
Point No.3 - As per final order
Regarding Point No.1 :-
12. I have examined the materials placed before this
Court. To prove the guilt of the accused, prosecution has
examined 12 witnesses. PW1 is the injured eye witness. PWs.2
and 3, who are mother and brother of PW1 respectively are
also the eyewitness. PW4 and 5 are the spot mahazar
witnesses. PW6 and 7 are attester to the mahazar. PW8 is the
doctor who has issued Ex.P6. PW9 has recorded the statement
of the complainant. PW10 is the Doctor, who has issued Ex.P9.
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PW11 is the then Special Tahsildar who has given report about
the ownership of the property where the incident took place.
PW12 is the PSI, the Investigating Officer.
13. This case arises out of the complaint filed by PW1
as per Ex.P1. PW1-Shrinivasa Devadiga has clearly deposed in
his evidence that accused no.1 has assaulted him with 'katthi'
near left side of the ear and he has taken treatment in Manipal
hospital for a period of one week and then he lodged a
complaint to the police as per Ex.P1. PW2-Janaki Devadiga,
PW3-Nagaraja, have also clearly deposed as to the assault
made by accused no.1. PW4-Somashekhar Poojary and PW5-
Dinesh Devadiga have deposed as to the mahazar conducted by
the police as per Ex.P2 and seizure mahazar as per Ex.P3.
PW6-Rajendra Bijoor has deposed as to the panchanama,
Ex.P4. PW7-Manjunatha is an Assistant Engineer, PWD, who
has deposed as to the preparation of rough sketch as per Ex.P5
at the instance of Police. PW8-Dr.Amruthraj has deposed as to
the treatment extended to the injured and found the injuries as
per Ex.P6. Further he has deposed that the injuries are
grievous in nature. PW9-Sudarshan has deposed as to the part
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of investigation. PW10-Mohan Das has deposed as to the
issuance of report as per Ex.P9. PW11-Hanumegowda, Retired
Tahashildar has deposed as to the report submitted by him as
per Ex.P10. PW12-Santosh Kaikini has deposed as to the
investigation conducted by him.
14. On examination of the entire evidence on record, it
is clear that accused no.1 has assaulted the injured PW1 with
chopper causing grievous hurt to him. On proper appreciation
of the evidence on record, the trial Court has rightly convicted
accused no.1 for the offence under Section 326 IPC. I do not
find any factual or legal error in this regard. Hence, I answer
point no.1 in the negative.
Regarding point no.2:-
15. The trial Court has passed the order on sentence as
under:
"The accused No.1-Manju Devadiga is sentenced
to undergo imprisonment for one year and to pay a fine
of Rs.2,000/-. In default to pay the fine amount, accused
No.1 shall under go simple imprisonment for another 3
months for having found guilty u/s 326 of IPC.
Order sheet discloses that accused No.1 -Manju
Devadiga was remanded to jail on 17.11.2014 by
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committal Court. Since then, he is in judicial custody.
The period under gone in J.C. by accused No.1-Manju
Devadiga from 17.11.2014 shall be given set off u/s 428
of Cr.P.C. for the offence punishable under Section 326
of IPC. On perusal of Section 428 of Cr.P.C., makes it
clear that in default of fine cannot be given set off. In
default substantive sentence of three months shall
commence after completion of one year imprisonment as
428 provides that the set off clause of payment of fine
imprisonment imposed by the Court cannot be given set
off under Section 428 of Cr.P.C. as the words are clear
enough to say that where the accused, on being
convicted and sentenced to imprisonment for a term (not
being imprisonment in default of payment of fine) the
period of detention. Meaning thereby, in default of period
of sentence to be undergone by accused No.1 cannot be
given set off and in default of sentence of fine for three
months shall commence after the completion of
undergoing the sentence of one year of imprisonment
sentence imposed on to accused No.1.
As contemplated under Section 365 of Cr.P.C.,
forward the copy of finding and sentence to the District
Magistrate of Udupi within jurisdiction, in where the trial
is held and where the incident has occurred.
M.O.1-T shirt is ordered to be destroyed as
worthless after appeal period is over and M.O.2 sword is
ordered to be confiscated to Government as worth after
appeal period is over.
Provide the free copy of judgment to the accused
No.1 forthwith."
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16. The trial Court has sentenced accused no.1 to
undergo simple imprisonment for one year and pay a fine of
Rs.2,000/-. The fine amount is already deposited by the
appellant as the same is reflected in the order sheet dated
21.11.2015.
17. With regard to sentence is concerned, the trial
Court has expressed its opinion that set off cannot be given in
default of sentence of fine. But in this case, the appellant has
already deposited the amount. In view of Section 428 of
Cr.P.C., where an accused person has, on conviction, been
sentenced to imprisonment for a term, not being imprisonment
in default of payment of fine, the period of detention, if any,
undergone by him during the investigation, inquiry or trial of
the same case and before the date of such conviction, shall be
set off against the term of imprisonment imposed on him on
such conviction, and the liability of such person to undergo
imprisonment on such conviction shall be restricted to the
remainder, if any, of the term of imprisonment imposed on
him.
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18. Keeping in mind the provisions of Section 428 of
Cr.P.C., the appellant is entitled for set off under Section 428 of
Cr.P.C. The accused has already undergone judicial custody for
a period of one year four days, hence the trial Court has
committed an error in this regard. Hence, I answer point no.2
in the affirmative.
Regarding Point No.3 :-
19. For the aforesaid reasons and discussions, I
proceed to pass the following:
ORDER
(i) The appeal is partly-allowed ;
(ii) The judgment of conviction passed by the
Additional District and Sessions Judge, Udupi
(sitting at Kundapur) in S.C.No.7/2015 dated
21.11.2015 is confirmed;
(iii) The sentence passed by the trial Court is
modified as under:
(a) Accused no.1-Manju Devadiga is
sentenced to undergo imprisonment for a
period of one year and to pay a fine of
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Rs.2,000/-. The fine amount is already
deposited by the appellant and the
appellant is entitled for set off under
Section 428 of Cr.P.C.
(b) The appellant has already undergone more
than one year in judicial custody. Hence
there is no need to issue any conviction
warrant to the appellant as he has already
served the sentence of one year.
Registry directed to send the copy of this judgment along
with TCR to the trial Court.
Sd/-
(G BASAVARAJA)
JUDGE
PGG
List No.: 1 Sl No.: 9