Anantharame Gowda vs State of Karnataka

Mohan M. Shantana Goudar, J.—The judgment and order of conviction dated 29.08.2009 passed by the Additional Sessions Court, Chikmagalur in S.C. No. 22/2007 is called in question in these appeals by the convicted accused. By the said judgment, the Trial Court has convicted the accused for the offences punishable under Sections 326 and 324 of Indian Penal Code and sentenced him to undergo imprisonment for a period of one year for both the offences and ordered that both sentences shall run concurrently.

Crl. A. No. 793/2009 is filed by the convicted-accused seeking acquittal, whereas Crl. A. No. 215/2010 is filed by the State praying for enhancement of sentence.

Since, both the appeals arise out of the same judgment; both the appeals are heard and decided together.

The case of the prosecution in brief is that there is a civil dispute with regard to agricultural land in between the injured Puttegowda (P.W. 2) and the accused; when P.W. 2 was cultivating the disputed land bearing Sy. No. 66 measuring 4 acres of Karkehal Village at 4.00 p.m. on 28.06.2006, the accused came there and abused P.W. 2 in filthy language; he assaulted P.W. 2 with a sickle and club and caused multiple injuries; immediately, P.W. 2 was shifted to M.G. Hospital, Chikmagalur. P.W. 1 (Siddegowda), the son of injured P.W. 2 lodged a complaint before Sakharayapatna Police Station against the accused, which came to be registered in Crime No. 81/2006. The Investigating Officer laid the charge sheet against the accused for the offences punishable under Sections 307, 324, 326 and 504 of Indian Penal Code.

As aforementioned, the trial Court convicted the accused for the offences punishable under Sections 326 and 324 of Indian Penal Code.

In order to prove its case, the prosecution in all examined 12 witnesses and got marked 19 Exhibits and 3 Material objects.

Sri. N. Snnivas, learned Advocate appearing on behalf of the convicted accused taking us through the entire material on record submits that the Court below is not justified in convicting the accused for the offences punishable under Sections 326 and 324 of Indian Penal Code; the evidence let in by the prosecution is wholly unbelievable; the trial Court has overlooked the medical evidence while coming to the conclusion; the case of the prosecution is dependant merely on assumptions; the versions of the eye-witnesses is unbelievable. On these amongst other grounds, he prays for acquittal of the accused.

Per contra, learned Government Pleader submits that the Court below ought to have sentenced the accused for a minimum period of five years for the offence punishable under Section 326 of Indian Penal Code.

P.W. 1 is the complainant; he is stated to be the eyewitness to the incident in question; he is the son of injured-Puttegowda; his complaint is at Ex. P1. P.W. 2 is the injured eyewitness; he has deposed about the actual incident in question. P.W. 3 is a witness for the panch-Ex. P2 and P3 with regard to seizure of a shirt and a club. P.W. s 4 and 5 are the neighbours and stated to be the eye-witnesses to the incident in question; their lands are adjoining to the lands of the victim. P.W. 6 is the wife of P.W. 2; she is also stated to be an eye-witness to the incident; P.W. s 7 and 8 are the police constables who participated in the investigation at different levels; among them, P.W. 7 took the FIR to the jurisdictional Magistrate; P.W. 8 took the articles to the Forensic Science Laboratory; P.W. 9 is the Station House Officer of Sakharayapatna Police Station during relevant point of time; he registered the crime based on the complaint lodged by P.W. 1; P.W. 10 is the Medical Officer attached to M.G. Hospital, Chikmagalur who treated the injured and issued wound certificate-Ex. P8; P.W. 11 is the Investigating Officer.

The complaint-Ex. P1 came to be written in the hospital. P.W. 1 gave a written complaint before P.W. 9 (the Station House Officer of Sakharayapatna Police Station) at about 1.00 a.m. on 28.06.2006.

The complaint Ex. P1 discloses that there was land dispute between the accused and the injured; petty quarrels used to take place in between them several times. At about 4.00 p.m. on 28.06.2006, the incident has taken place while P.W. 2 was cultivating the land; accused came there and assaulted him with club and sickle; P.W. 2 raised hue and cry; on hearing the cries, the complainant (P.W. 1) and others came there and shifted P.W. 2 to the hospital.

Though P.W. 1 has deposed as if he is an eye-witness to the incident in question and though, the complaint was lodged by him as if he is an eye-witness to the incident in question, a meticulous perusal of the record it is clear that P.W. 1 is not an eye-witness. He has deposed that on the date of the incident at 4.00 p.m., he heard the cries of his father and by the time he went there the injured had fallen down and he saw the deceased running away with sickle in his hand. Thus, according to P.W. 1, he has not seen the incident in question but has seen the accused running away from the scene. Such version of P.W. 1 also appears to be after thought and the same seems to be an improved version. P.W. 2, the injured in his examination-in-chief itself has deposed that his son Puttegowda (P.W. 1) his wife (P.W. 6) were present in his house and on hearing his cries they rushed to the spot. In the cross-examination, P.W. 2 admits that his son Siddegowda (P.W. 1) was working in Deepa Nursing Home and he was called to the spot over phone by someone. This submission clearly goes to show that P.W. 1 came to the spot belatedly and merely shifted the victim. Therefore, P.W. 1 is not an eye-witness to the incident.

So also we find that P.W. s 4 and 5 are not the eyewitnesses; they also came to be spot belatedly i.e., after the incident, however, they had seen the accused running away from the scene. It is no doubt true that P.W. 4 has deposed that they saw the accused assaulting P.W. 2 with club and sickle and on seeing P.W. s 4 and 5 the accused ran away from the scene holding sickle in his hand. P.W. 5 has admitted that himself and P.W. 4 came to the spot and saw P.W. 2 lying on the ground with bleeding injuries and by that time several people had found gathered there; P.W. s 4 and 5 are the father and son respectively. Both have come to the spot together, which means P.W. s 4 and 5 came to the spot subsequent to the incident and they only saw the accused running away from the spot.

For the very reasons, which are assigned while evaluating the evidence of P.W. 1 are applicable to version of P.W. 6-the wife of P.W. 2; she also came along with P.W. 1 to the spot subsequent to the incident in question; another eye-witness P.W. 12 has turned hostile. Thus, it is clear from the evidence of P.W. s 1, 4, 5, 6 and 12 that their evidence cannot be relied upon and is not helpful for the purpose of evaluating the material relating to the actual incident in question.

However, the important witness in the matter on hand is P.W. 2-the injured eye-witness; normally the injured eyewitness will not spare the real culprit and implicate an innocent unless there are strong reasons. In the matter on hand, there is only one accused and therefore, there was no chance for implicating innocent person by the injured witness; in addition to the same, we find that the evidence of P.W. 2 is highly reliable.

PW2 has deposed that while he was cultivating the land, the accused came from behind and gave the blow on his back with club; P.W. 2 raised alarm and thereafter the accused assaulted on his both hands and legs with sickle; on hearing cries, P.W. s 4 and 5 came there. In our considered opinion, the trial Court is justified in wholly relying upon the evidence of P.W. 2 for coming to the conclusion. Even on re-considering the material on record, we do not find any strong reason to disagree with the conclusion arrived at by the Trial Court. The evidence of P.W. 2 is consistent with the case of the prosecution. Merely because, there was a land dispute between the parties, the version of P.W. 2 cannot be doubted. Since, P.W. 2 is an interested witness; his version is meticulously considered by us. He is an injured witness. Even on re-considering the material on record wholly, we find that the trial Court is justified in relying upon the version of P.W. 2.

The evidence of the Doctor-PW10 would clearly reveal that the victim has sustained 10 injuries. Almost all of them are lacerated wounds. The Doctor however, has deposed that injury Nos. 2 and 3 are grievous in nature, based on which the Trial Court has convicted the accused for the offence punishable under Section 326 of Indian Penal Code. In our considered opinion, the Doctor is not justified in classifying injury Nos. 2 and 3 as grievous injuries. For better understanding, the injury Nos. 2 and 3 are quoted as under:

"(i) Lacerated wound about 4 x 1 x 1 inches on dorsum of left hand (cut tendon).

(ii) Deformed middle finger of left hand."

The aforementioned injuries do not fall under any of the "8 items" narrated in Section 320 of Indian Penal Code. The victim has not even sustained a small fracture. In the absence of any material to show that any of the injuries fall under any one of the 8 items contained in Section 320 of Indian Penal Code, the injuries sustained cannot be classified as grievous injuries. If it is so, in our considered opinion, the Trial Court is not justified in convicting the accused for the offence punishable under Section 326 of Indian Penal Code.

Be that as it may, the entire evaluation of the material on record leads us to only conclusion that the accused is liable to be convicted for the offence punishable under Section 324 of Indian Penal Code and not under Section 326 of Indian Penal Code.

At this stage it is relevant to note that the accused has produced certain documents relating to the property, over which P.W. 2 was cultivating during relevant point of time. The documents so produced by the accused prima facie reveal that the land, which was being cultivated by P.W. 2 (injured) was standing in the name of the accused. Thus, learned Advocate Sri. Srinivas, is justified in contending that the accused had got every right to protect his property. He may also be justified in taking shelter under Section 97 of the Indian Penal Code to contend that every person has got a right to defend his property whether movable or immovable against any act of criminal trespass. In the matter on hand, the incident has taken place while P.W. 2 was cultivating the property in question. Since the said land was standing in the name of the accused during relevant point of time, the accused may be justified in contending that he is entitled to take shelter under Section 97 of the Indian Penal Code. However, in our considered opinion the accused has acted in excess of his right of private defence of property. In this view of the matter, though the accused is liable to be convicted for the offences punishable under Section 324 of Indian Penal Code, leniency may be shown in his favour having regard to the mitigating circumstance as mentioned supra.

Accordingly following order is made:

"(i) Crl. A. No. 793/2009 filed by the convicted-accused is allowed in part to the said extent. Crl. A. No. 215/2010 filed by the State stands dismissed.

(ii) The judgment and order of conviction convicting the accused for the offence punishable under Section 326 of the Indian Penal Code stands set aside. However, the judgment and order of conviction convicting the accused for the offence punishable under Section 324 of Indian Penal Code stands confirmed.

(iii) The sentence imposed by the Trial Court against the accused for the offence punishable under Section 324 of Indian Penal Code is reduced from one year to one month imprisonment. However, the sentence of fine is enhanced from Rs. 1,000 to Rs. 20,000/-.

(iv) Thus the accused shall undergo imprisonment for one month and pay a fine of Rs. 20,000/- for the offences punishable under Section 324 of Indian Penal Code.

In default of payment of fine, the accused shall undergo further imprisonment for two months. In case of recovery of fine, Rs. 15,000/- shall be paid to the injured as compensation. The remaining amount shall vest with the State. (v) The judgment and order dated 29.08.2009 passed by the Additional Sessions Court; Chikmagalur in S.C. No. 22/2007 is modified accordingly.