Ashok Saliyan and Others vs K.C. Chandran and Others

Mohan M. Shantana Goudar, J.—The judgment and order dated 25.4.2011 passed by the Fast Track Court, Chickmagalur in SC. No. 58/1999 is the subject matter of these two appeals.

The accused were charged for the offences punishable under Sections 143, 147, 148, 504, 324, 307 r/w. Section 149 of IPC. Accused No. 2 was absconding and hence case against him was split up. The trial Court convicted accused Nos. 1 and 3 for the offence punishable under Section 326 r/w. Section 34 of IPC and acquitted them of other offences. So also other accused are acquitted by the trial Court in respect of all the offences with which they were charged.

Crl. A. No. 486/2011 is filed by the convicted accused Nos. 1 and 3 challenging the judgment and order passed by the trial Court questioning the order of conviction, whereas Crl. A. No. 1080/2011 is filed by the first informant-P.W. 1 (injured) praying for conviction of all the accused for the offences with which they were charged. He has also prayed for enhancement of sentence imposed on accused Nos. 1 and 3 for the offence punishable under Section 326 r/w. Section 34 of IPC.

Case of the prosecution in brief is that number of litigations both civil and criminal are pending before the various forums between the victim-complainant (P.W. 1) and accused No. 2-Sadashiva who was absconding and against whom the case was split up; there was long standing enmity between them; number of allegations and counter allegations were made against each other; they were fighting litigations both in Civil Courts as well as in Criminal Courts with regard to various issues, including the property; on 25.2.1999, at about 8.45 p.m., while the victim was going from his house towards his garden land, all the accused had gathered in the agricultural land of the complainant forming an unlawful assembly; on being asked by the complainant as to why they were plucking soap-nuts, all the accused assaulted P.W. 1; accused Nos. 1, 2 and 3 were holding choppers, whereas other accused were holding clubs and rope; accused No. 2 instigated all the accused to assault the complainant-P.W. 1 and not to spare his life; accused Nos. 1 and 3 assaulted the complainant-victim with choppers, whereas other accused tied him with rope and thereafter assaulted him with clubs, consequent upon which the victim sustained two grievous injuries, apart from three simple injures; immediately thereafter the victim was admitted to Chickmagalur Government Hospital by P.Ws. 2, 4, 6 and others; the hospital authorities of Chickmagalur Government Hospital sent intimation to Chickmagalur Town Police Station about medico-legal case; P.W. 10, the Head Constable attached to Chickmagalur Town Police Station came to the hospital and recorded the statement of P.W. 1 and sent the same through P.W. 7, the Police Constable attached to Lingadahalli Police Station for registering the case. It is relevant to note that the incident has taken place within the jurisdiction of Lingadahalli Police Station. P.W. 9, the Sub-Inspector of Police registered Crime No. 12/1999 in Lingadahalli Police Station for various offences, including the offences punishable under Sections 324 and 307 r/w. Section 149 of IPC. P.W. 9, the very sub-Inspector of Police completed the investigation and laid the charge sheet against 9 accused for the offences punishable under Sections 143, 147, 148, 504, 324, 307 r/w. Section 149 of IPC.

In order to prove its case, the prosecution in all examined 12 witnesses and got marked 10 Exhibits and 10 Material Objects. As aforementioned, the trial Court on evaluation of the material on record, convicted accused Nos. 1 and 3 for the offence punishable under Section 326 r/w. Section 34 of IPC and acquitted them of other offences, so also acquitted other accused of the offences with which they were charged.

Sri H. Malathesh, learned advocate appearing on behalf of the appellant (victim) in Crl. A. No. 1080/2011 taking us through the material on record, submits that the trial Court is not justified in acquitting all the accused for the offence punishable under Section 307 of IPC; the trial Court is not justified in imposing the lesser punishment for the offence punishable under Section 326 r/w. Section 34 of IPC as against accused Nos. 1 and 3; ample material is produced by the prosecution to show that all the accused were involved in the incident. Thus, according to him, the trial Court ought to have convicted all the accused for the offence punishable under Section 307 of IPC.

Sri Vijayakumar Majage, learned Government Pleader appearing on behalf of the State also taking us through the various portions of the evidence, submits that accused Nos. 1 and 3 are liable to be convicted for the offence punishable under Section 307 of IPC.

Per contra, Sri Arun Sham, learned advocate appearing on behalf of the accused not only argued in support of the judgment of the Court below in respect of the acquittal of other accused, but also prays for acquittal of accused Nos. 1 and 3. He further submits that the sentence imposed on accused Nos. 1 and 3 is entitled to be reduced, inasmuch as the offence has taken place in the year 1999 and that the same is as a result of rivalry between the parties which the parties might have forgotten by now. He further submits that the material is not sufficient to conclude that P.W. 1 had sustained two fractures as deposed by P.W. 1.

P.W. 1 is the injured complainant. The complaint is at Ex. P.1.

P.Ws. 2, 4 and 6 are the eye witnesses to the incident. Among them, P.W. 4 has turned hostile to the case of prosecution to the major extent. He has deposed that by the time he went to the spot, the incident was complete and the accused were not there. However, P.W. 2 has deposed against accused No. 1 specifically. In respect of the other accused, he has not given omnibus statement.

P.W. 5-Doctor supported the case of the prosecution. His evidence is on par with P.W. 1. P.W. 3 is the witness to the spot mahazar-Ex. P.3 under which M.O. Nos. 5 to 10 were seized from the spot. P.W. 5 initially treated the injured from 25.2.1999 to 11.3.1999 in the Chickamagalur government hospital. He has issued wound certificate as per Ex. P. 10.

P.W. 7 is the police constable who participated in the investigation.

P.W. 8 is the witness to the seizure panchnama under which the Maruthi Omni car, which was allegedly used by the accused to arrive at the place of incident, was seized.

P.W. 9 is the police inspector who registered Ex. P.1 and sent FIR to the Jurisdictional Magistrate.

P.W. 10 is the Head constable who received complaint from P.W. 1 on going to the spot and thereafter, transmitted the said complaint through P.W. 7 to the police station.

P.W. 11 is the seizure mahazar-Ex. P.9 under which pant, shirt, shoes of the injured were seized.

P.W. 12 is the doctor attached to a private hospital and he has treated the injured from 11.3.1999 to 13.3.1999 at Mangaluru.

Case of the prosecution mainly depends upon the evidence of the eye witnesses P.Ws. 1, 2, 4 and 6. Among them, P.W. 1 is the injured witness.

P.W. 1 has lodged the complaint Ex. P.1. Though in the complaint, he made specific allegations against almost all the accused, in his deposition before the Court, he restricts his grievance as against accused Nos. 1 to 3. It is specified by P.W. 1 before the court that accused No. 2 instigated the other accused to do away with the life of P.W. 1. At that time, accused Nos. 1 and 3 were holding choppers. All the three i.e.,. accused Nos. 1 to 3 assaulted the injured with choppers; the other accused tied the injured with the help of rope and assaulted him with the clubs. As aforementioned, specific deposition is made by P.W. 1 against accused Nos. 1 to 3 specifying the specific overt acts. However, in respect of the other accused, P.W. 1 has made vague and omnibus statement before the Court. In the cross examination also, his evidence is not shaken by the defence by cross examining in respect of the other accused. We find that the evidence of P.W. 1 in respect of accused Nos. 1 and 3 is reliable and his evidence fully supports the case of prosecution as found in the complaint as well as in the charge sheet. At the cost of repetition, we may state here that P.W. 1 has deposed that accused Nos. 1 and 3 along with accused No. 2 assaulted him with the chopper on various parts of the body including the leg and the heart. P.W. 1 has also deposed about the motive for commission of the offence. As it is clear from the deposition at paragraph Nos. 5 to 8 that number of cases and counter cases are filed by P.Ws. 1 and 2 and the same are pending before the number of forums including the civil and criminal courts. He admits in examination in chief that there was long standing rivalry between the two.

P.W. 2, though is an eye witness to the incident, has confined his evidence as against accused No. 1 only. Virtually, he has not deposed as against the other accused. According to him, he was prevented by the sons of accused No. 1 to go to the spot and consequently, he did not witness the actual incident of assault on P.W. 1 by the other accused.

P.W. 4 has practically not supported the case of prosecution to the major extent. He has deposed that by the time he went to the spot, the injured had fallen on the ground with the injuries and at that time, P.Ws. 2 and 6 were present. The accused were not present. He has specified that he did not even see the accused running away form the scene. Hence, his evidence may not be of much help to the case of prosecution.

P.W. 6 is another important witness. He has deposed specifically against accused Nos. 1 to 3. According to him, all these three accused assaulted the injured with choppers. We find that his evidence is on par with the evidence of P.W. 1. His evidence is not shaken in the cross examination insofar as his version about the assault by accused Nos. 1 to 3.

From the aforementioned evidence of the witnesses, it is clear that the prosecution has made out the case against accused Nos. 1 and 3. Since accused No. 2 is absconding, the case against him is split up. We do not want to comment anything against him. Hence, we confine the discussion with the materials on record as against accused Nos. 1 and 3 only.

We are also convinced that on going through the materials on record, the trial court is justified in acquitting accused Nos. 4 to 9. As aforementioned, the eye witnesses, including the injured eye witness, have made only the vague and omnibus statement against accused Nos. 4 to 9. The evidence against them is not sufficient to prove guilt and to convict them for the offence for which they are charged. However, we find from the evidence of the eye witnesses that their evidence is consistent, cogent and reliable insofar as accused Nos. 1 and 3 are concerned.

The evidence of the doctors-P.Ws. 5 and 12 discloses that P.W. 1 injured was subjected to X-ray examination; injury Nos. 1 and 2 as found in Ex. P.5 (certificate issued by Dr. A. Nanjundappa) are stated to be the grievous injuries. P.W. 12-Dr. S. Adyanthayya, has treated the victim at Mangaluru from 11.3.1999. He has also specified that the two injures are grievous in nature inasmuch as the injured has sustained two fractures. The wound certificate issued by him is at Ex. P.10. In Ex. P. 10, P.W. 12 has stated that the X-ray of left fore arm discloses fracture of left ulna and X-ray of left leg discloses underplayed lower end of the left fibula. These two fractures tally with injury Nos. 1 and 2 as found in Ex. P.5. By reading Exs. P.5 and 10 along with the evidence of P.Ws. 5 and 12 homogenously, it becomes clear that the victim had sustained two fractures, one on the left fore arm and another on the left leg. It is clear from the wound certificates and the evidence of the doctors that the injuries have been caused by assault with choppers. It is also mentioned by both the doctors in both the certificates that the injured was subjected to X-ray examination and the X-ray discloses grievous injuries. Despite the same, there is no cross examination by the defence on that aspect of the matter. Virtually, the defence have not cross examined the doctors on the material aspects. Practically, the defence have admitted to the evidence that the victim has sustained two fractures and that portion of the evidence has remained uncontroverted. In view of the same, we are of the clear opinion that P.W. 1 has sustained grievous injuries by the assault of accused Nos. 1 and 3.

On re-consideration of the entire materials on record, we are of the opinion that the trial court is justified in convicting accused Nos. 1 and 3 for the offence under section 326 of IPC. The doctor P.W. 12 has admitted that the injuries were not dangerous to the life of the patient, even otherwise, those injuries are not on the vital portion of the body. We do not find any intention on the part of accused to commit the murder. Hence, both the offence may not fall under Section 307 of IPC.

We have heard the learned advocates on the question of sentence.

Sri. Arun Shyam, learned Counsel appearing for the accused submitted that the incident has taken place on 25.2.1999 i.e., about 16 years prior to this day. The parties might have forgotten the rivalry by now. Accused Nos. 1 and 3 have already undergone imprisonment for 7 months and 8 days and that itself is sufficient punishment under the facts and circumstances of the case. The said submission was opposed by Sri Malatesh, learned counsel appearing on behalf of the victim.

Having regard to the peculiar facts and circumstances of the case, we find it just and proper to impose punishment on accused Nos. 1 and 3 which they have already undergone. However, the victim has to be compensated sufficiently inasmuch as he was an inpatient in the hospital for about 16 days and he must have been undergone lot of pain and agony. The trial court has imposed only Rs. 5,000/- as fine against each of the accused, which is very much insufficient.

Therefore, the following order is made:

"(a) The judgment and order of conviction dated 25.04.2011 passed in S.C. No. 58/1999 by the Fast Track Court at Chickmagalur convicting accused Nos. 1 and 3 for the offence under Section 326 read with Section 34 of IPC stands confirmed. They are sentenced to undergo imprisonment for the period for which they have already undergone. However, they are imposed with sentence of fine of Rs. 50,000/- (Rupees fifty thousand only) each.

(b) In default of payment of fine as imposed supra, accused Nos. 1 and 3 shall undergo further imprisonment of one year.

(c) The judgment and order of acquittal acquitting the other accused i.e., accused Nos. 4 to 9 for the offences for which they are charged is confirmed.

(d) Since accused Nos. 1 and 3 have already undergone imprisonment and as the same is held to be sufficient by this Court, they need not be arrested any more.

(e) If the fine amount is recovered, the amount of Rs. 75,000/- shall be paid to the injured P.W. 1-Ahok Saliyan and the remaining amount of Rs. 25,000/- shall vest with the State.

(f) The fine amount shall be deposited within 4 1/2 months from today by accused No. 1 and 3 and if not deposited within the said period, accused Nos. 1 and 3 shall undergo the default sentence as mentioned supra."

On these above terms, both the appeals stand disposed of.