Ananda @ Ginke vs The State of Karnataka

N. Ananda, J.—The accused was tried and convicted for an offence punishable u/s 307 of IPC. The accused has been sentenced to undergo imprisonment for a period of three years with fine of Rs. 3,000/- and default sentence. Therefore, he is before this Court. I have heard Sri Kamaleshwar Pujari, learned counsel for the appellant and learned SPP for the State.

It is the case of the prosecution that accused and victim -P.W.-2 Mahesh are natives of Ganjam village of Srirangapatna Taluk. On 28.12.2005 at about 5.30 p.m. when P.W.-2 was proceeding in front of Gumbaz, the accused who came from behind P.W.-2, assaulted on the hind portion of head of P.W.-2 with sickle. When P.W.-2 held his hands on his head to prevent blows landing on his head, the accused hit on left hand of P.W.-2 with the sickle, which resulted in amputation of left thumb of P.W.-2. P.W.-2 was shifted to Government Hospital at Srirangapatna and later to BGS Apollo Hospital at Mysore. The prosecution has relied the following:

The eye witness account of P.W.-2; medical evidence; conduct of the accused and recovery of weapon. The independent witnesses viz., P.W.-3 - Pradeep, P.W.-4 - K. Raju and P.W.-5 Jagadeesh have not supported the case of the prosecution. Therefore, prosecution has relied on solitary evidence of P.W.-2 - G.P. Mahesh (injured witness). I have reappreciated evidence of P.W.-2.

P.W.-2 has deposed or; the date of incident at about 5.30 p.m. when he was returning from his land, accused came from his behind and assaulted on the hind portion of his head with a sickle. P.W.-2 held his hands on his head to prevent head injuries. The blow landed on the left palm of P.W.-2, as a result, there was amputation of the left thumb. P.W.-2 cried and fell down. At that time, the prosecution witnesses viz., Pradeep and Srinivasa came and shifted P.W.-2 to Government Hospital at Srirangapatna. After preliminary treatment, he was shifted to BGS Apollo Hospital at Mysore. When P.W.-2 was being treated in Government Hospital, at Srirangapatna, the jurisdictional police came and recorded his statement and first information report was registered. P.W.-2 has deposed that, three months prior to the date of incident, the accused in a drunken stage, had assaulted him. However, the villagers had compromised the matter and reprimanded the accused. P.W.-2 has identified the weapon of offence and his blood stained clothes.

During cross-examination of P.W.-2, an unsuccessful attempt has been made to establish that P.W.-2 while cutting the grass with sickle, had cut his left thumb. The defence is not tenable. Even if a person were to come in contact with the blade of a sickle while cutting the grass, he would not pursue to cut his thumb or finger to separate from the rest of the hand. It would natural instinct of a person to prevent injury even if injury is caused by inadvertently or accidentally.

It is seen from the cross-examination of P.W.-2 that he has reiterated the reason that he had suffered injuries at the hands of the accused. The defence has put certain hypothetical suggestions to P.W.-2 that he had suffered injuries by some other means and not due to the assault by this accused. These suggestions are denied by P.W.-2. From the cross-examination, I do not find any reasons for P.W.-2 to falsely implicate the accused. The incident had occurred at about 5.30 p.m. on 28.12.2005, first information report was recorded at 6.45 p.m. in the presence of the medical officer of Govt. hospital of Srirangapatna. The contents of first information would lend corroboration to evidence of P.W.-2.

Dr. Parashiva Murthy - P.W.-10 who treated P.W.-2 in the Government Hospital at Srirangapatna, at 6.20 p.m. on 28.12.2005 has deposed that P.W.-2 had suffered following injuries:

A lacerated wound over the occipital region measuring 4x2 inches bleeding present deep to bone.

Cut amputation of left thumb at the root (base) and completely separated with bleeding present.

P.W.-10 has deposed that he advised the relatives of P.W.-2 to take him to a higher hospital for further treatment. P.W.-10 made entries in the M.L.C. Register.

During cross-examination, it was suggested to P.W.-10 that the injury on the left thumb could have been caused while cutting the grass. In the discussion made supra, I have held this suggestion is untenable. The evidence of P.W.-2 finds corroboration from evidence of P.W.-10.

P.W.-14 Dr. K.V. Lokesh, BGS Apollo Hospital, Mysore had deposed that on 28.12.2005 at 7.30 p.m. the injured was brought to BGS hospital by his brother Mallesh with the history of assault by one Anand with a sharp weapon. P.W.-14 notice the following injuries:

Total amputation of thumb of the left hand.

Scalp laceration on the occipital region with underlying slit in the bone measuring 10 cm.

Cut laceration over the left wrist over 7 cm.

Cut laceration over the upper part of right arm 6 cm. long.

P.W.-14 had deposed that injury No. 1 is grievous in nature and other injuries are simple in nature. During cross-examination of P.W.-14, nothing worth is elicited so as to discredit his evidence. The injured had no motives to falsely implicate the accused. The evidence of injured and medical evidence are sufficient to prove that P.W.-2 had suffered grievous injuries. P.W.-2 being injured witness would be least disposed to falsely implicate the accused leaving aside the real assailant. Therefore, the learned trial Judge was justified in holding that accused assaulted the injured with sickle.

The learned counsel for accused had sought to establish that there was discrepancy in the description of weapon of offence. It is seen that some of the witnesses have described the weapon of offence as sickle. As per medical evidence, weapon of the assault is described as chopper. The evidence on record shows that the weapon of offence had been sent to medical examination. Therefore, the evidence of P.W.-2 that he was assaulted by accused with a sickle cannot be suspected. Even otherwise, as could be seen from the description of the injuries suffered by P.W.-2, we find that injuries could have been caused by a weapon having sharp cutting edge with semi-circular shape or elliptical shape. Therefore, the defence cannot bank upon this discrepancy.

The next point for determination is whether the learned trial Judge was justified in convicting the accused for an offence punishable u/s 307 of IPC. The medical evidence does not reveal that the injuries suffered by P.W.-2 were sufficient to cause death in the ordinary course of life. P.W.-2 himself has not deposed that accused had intention to kill him. There are variations in number of injuries deposed by P.Ws. 10 and 14. In the circumstances, it is not possible to hold that accused has committed an offence punishable u/s 302 IPC. The incident of assault resulted in amputation of left thumb of P.W.-2. Therefore, I hold that accused has committed an offence punishable u/s 326 of IPC.

The learned counsel for the accused submits that accused was aged about 25 years at the time of commission of offence and he does not bear any criminal antecedents. The accused was in judicial custody for a period of six months an therefore, the period of detention undergone by him during trial may be held as sufficient imprisonment, which I am not persuaded to accept for the following reasons:

The accused had attacked P.W.-2 with a sickle without any rhyme or reason. The evidence on record does not discloses that there was any provocation from the side of P.W.-2.

The accused was aged about 25 years and he has wife and children to look after. Having regard to aggravating and mitigating circumstances, I deem it proper to sentence the accused to undergo simple imprisonment for a period of two years and pay fine of Rs. 50,000/-, in default of payment of fine, to undergo simple imprisonment for a period of six months. Therefore, I pass the following:

ORDER

The Appeal is accepted in part. The impugned judgment of conviction is modified. The accused is acquitted of the offence punishable u/s 307 IPC. The accused is convicted for an offence punishable u/s 326 of IPC. The accused is sentenced to undergo imprisonment for a period of two years and pay fine of Rs. 50,000/-, in default of payment of fine, to undergo simple imprisonment for a period of six months. Out of the fine amount a sum of Rs. 45,000/- shall be paid as compensation to injured P.W.-2 - G.P. Mahesh, if P.W.-2 is not alive, the compensation amount shall be paid to wife of P.W.-2. The period of detention undergone by the accused during trial is given set off u/s 428 of Cr.P.C.