Babu Naik and Others vs State of Karnataka

Budihal R.B., J.—The judgment and order of conviction dated 30.09.2009 passed by the Fast Track Court-I, Ballari in SC No. 111/2008 is called in question in this appeal.

By the said judgment and order of conviction, the appellants/accused herein, have been convicted for the offence punishable under Section 307 read with 34 of IPC and they have been acquitted of the offence punishable under Section 504 read with 34 of IPC.

Brief facts of the prosecution case as per the complaint averments are that PW 4-Mukunda Naik lodged a complaint in this case as per Ex. P4 alleging that on 10.03.2008 at about 6.15 p.m. Ramu Naik-PW 6, Chandra Naik-PW 1 and himself all the three went to Belgal Cross and Rama Naik PW 5 came to them and told that he has given money to accused to perform the marriage of accused No. 1-Babu Naik and even though he has requested for the repayment of the said amount, accused No. 1-Babu Naik has not at all repaid the amount in spite of repeated request and he requested the complainant and others to get the amount return from accused Nos. 1 Babu Naik. Then they all proceeded towards the Cowl Bazaar where accused No. 1-Babu Naik was residing in B.D. Quarters and it was 6.45 p.m. There, Babu Naik accused No. 1, his elder brother Govinda Naik-accused No. 2 and other family members were present and at that time PW 5-Rama Naik told accused No. 1 though he has given amount for performing the marriage of accused No. 1 and in spite of expiry of three years he has not returned the said amount. Hence, PW 5 told him that he came from the village and till he make payment he will not go back. For that, accused No. 1-Babu Naik told which is that amount and also told that he has not helped for his marriage financially and he is not due to pay any amount to him. At that time the complainant, PW 6 and PW 7 also told accused No. 1 to pay the amount to PW 5. At that time PW 5 also told Babu Naik-accused No. 1 why he is telling falsity, for that in turn accused No. 1 abused the Rama Naik-PW 5 in filthy language stating that he will not leave him and he will cause his death. Again PW 5-Rama Naik insisted accused No. 1 that till he make the payment he will not leave the place. At that time accused No. 1-Babu Naik abusing PW 5 brought one iron pipe from his house and assaulted on the head of PW 5-Rama Naik on the head portion and caused bleeding injury. PW 5-Rama Naik screamed stated that Satthenappa. Then complainant and others went to the rescue of PW 5, at that time also accused No. 1-Babu Naik said that he will finish of PW 5-Rama Naik. Then accused No. 2-Govinda Naik also came there and he took the iron pipe from the hands of accused No. 1-Babu Naik and he also assaulted PW 5-Rama Naik on his head with the pipe and caused the bleeding injury. Then Rama Naik fell down and he was getting giddiness then he was taken to VIMS hospital at Ballari. Hence, PW 4 lodged a complaint against the accused persons. On the basis of the said complaint a case has been registered in Cowl Bazaar police station in Crime No. 23/2008 for the alleged offence punishable under Section 307 read with 34 of IPC.

After conducting and completing investigation the Investigating Officer filed a charge sheet against the accused persons for the alleged offences punishable under Section 307 and 504 read with Section 34 of IPC. In support of its case the prosecution has examined in all 16 witnesses as per PWs. 1 to 16 and got marked the documents Exs. P1 to P11 and also got marked material objections MOs. 1 to 3. On the other side the defence got marked Ex. D1 during the course of trial.

Heard the arguments of the learned counsel appearing for the appellants/accused and also the learned Addl. SPP for the respondent-State.

The learned counsel appearing for the appellants/accused during the course of arguments made the submission that PWs. 1 to 3 though claims that they are the eye witnesses to the incident they have not supported the case of the prosecution and they turned hostile. Learned counsel also made the submission that the seizure panchanama witnesses also not supported the case of the prosecution. It is his submission that the materials placed on record, more particularly Ex. D. 1 goes to show that the alleged incident was taken because of road traffic accident. Hence, he made the submission that in view of this documentary evidence it raises reasonable doubt in the mind of the Court whether really the appellants/accused have assaulted PW 5 and caused the injuries as alleged by the prosecution. Counsel also made the submission that there was a civil litigation pending and that is motive for the complainant to make false allegations and to falsely implicate the accused persons in this case. Hence, he submitted that looking to the oral evidence of the parties adduced by the prosecution no prima facie case has been made out to prove the charges leveled against the appellants. Learned counsel further made the submission that on the basis of the said evidence, the trial Court has already acquitted the appellants/accused of the offence punishable under Section 504 of IPC. Hence, he submitted that the prosecution failed to prove its case beyond reasonable doubt and benefit of doubt may be given to the accused and they are to be acquitted from the proceedings. Hence, the counsel submitted to allow the appeal accordingly.

Per contra the learned HCGP made the submission that even if PWs. 1 to 3 turned hostile who are said to have been eye witnesses to the incident, the injured-PW 5 is an important witness because he sustained injuries at the hands of the appellants. He consistently deposed before the trial Court during the course of examination that the present appellants assaulted him with the iron pipe one after another on his head portion and thereby caused bleeding injuries. He made the submission that though as per the document Ex. D1 it is mentioned that the incident is because of road traffic accident, but no supporting materials are produced, show that it is because of the accident. But on the contrary there are evidences i.e. injured-PW 5, complainant-PW 4 who is also an eyewitness and PW 6 also an eyewitness to the incident. All these witnesses have supported stating that it is because of assault made by accused persons herein. He also made the submission that the injury certificate issued from the hospital also clearly goes to show that such assault has been made by the present appellants. He also submitted that the Doctor who has been examined as PW 17 issued wound certificate clearly deposed in his evidence about the possibility of sustaining such injuries if a man is assaulted with the object like M.O. 1-Pipe. Hence, learned HCGP made a submission that the trial Court has taken into consideration all these aspects and rightly appreciated the case and convicted the appellants/accused for the alleged offence under Section 307 of IPC and no illegality has been committed by the trial Court. Hence, there are no grounds to interfere into the judgment and order passed by the trial Court and he submitted to dismiss the appeal.

I have perused the grounds urged in the appeal memorandum, the judgment and order of conviction and the sentence imposed by the trial Court, oral evidence of prosecution witnesses and the documents produced in the case. PW 4 is the complainant and he is also an eyewitness in the case. Perusing his evidence he has clearly deposed in the examination-in-chief that on 10.03.2008 at 6.00 p.m. himself, CW 4 and PW 1 were proceeded to Honnali village towards Belgal Cross, there PW 5 came and told to them that accused No. 1-Babu Naik phoned to him stating that he will give the amount and hence requested them to go there to collect the amount and PW 5 took them towards B.D. Quarters and they went to the house of the accused. Both the accused persons were there and when PW 5 requested accused No. 1 to give the amount, accused No. 1 told that he is not due to pay any amount to him then there was a galata by exchange of words and accused No. 1 assaulted PW 5/CW 2 on his head with iron rod and accused No. 2 took the same rod and assaulted PW 5 on the back portion of his head. Then PW 5 fell down, become unconscious and sustained bleeding injuries and then they have shifted him to VIMS hospital. Then he himself has lodged a complaint as per Ex. P4 and he has identified the said complaint and he has also deposed that he went along with police to the house of the accused and show the iron rod and the police have conducted panchanama as per Ex. P5 and seized the iron rod from that place, which is at M.O. 1. During the course of cross-examination of this witness nothing has been ascertained from his mouth so as to disbelieve his evidence, so also the evidence of PW 5-Rama Naik who is injured in this case and who had been to the accused to collect the money from accused No. 1. He deposed in his oral evidence that he himself has performed the marriage of accused No. 1 by spending Rs. 52,500/-. Accused No. 1 has not re-paid the said amount and when accused No. 1 came to Ballari and was doing driver work in the lorry, PW 5 went to Ballari and requested accused No. 1 for the amount, but he was postponing on one or the other pretext. He further deposed that on 10.03.2008 at about 5.00 p.m. he was proceeding along with his lorry towards B.D. Quarters at Ballari and Venaktesh Naik told that accused No. 1 will pay the amount and asked him to come, over phone, and PW 4 and other persons Gopya Naik and Chandra Naik went towards B.D. Quarters then it was 6.00 p.m. Both the accused and their mother were present in the house. He asked accused No. 1 to give the amount, at that time accused No. 1 stating that whenever he comes to his place requesting him to give the amount abused PW 5 in filthy language and brought iron pipe and assaulted on the head of PW 5 and accused No. 2 also took the same pipe from the hands of accused No. 1 and he also assaulted on the back portion of the head of PW 5. He lost consciousness as he sustained bleeding injuries and after two days he regained conscious when he was in OPD. Then the Sub Inspector of Police asked him about the incident and he gave his statement. About 20 days he was in the hospital getting treatment. His clothes were blood stained which are marked at M.Os. 2 and 3. In the cross-examination he admitted that there is a civil suit filed by PW 5 against accused and their mother demanding partition in the properties. He further deposed and denied the suggestion that of M.O. 2 and 3 are not his clothes. He denied the further suggestion that accused have not at all assaulted him with M.O. 1. He also denied the further suggestion that he fell down from the motorcycle and sustained injuries and filed the false case against the accused persons. PW 6-Ramu Naik deposed in his evidence in his examination-in-chief that on 10.03.2008 in the evening himself, PW 1 and PW 4 came to Belgal Cross and PW 5 also came there with lorry and told them that accused No. 1-Babu Naik phoned to him stating that he will pay the amount and called him and they all four went on two motorcycles, both the accused were present in the house. Accused No. 1 brought an iron pipe and assaulted on the head of PW 5. Accused No. 2 took the same pipe from Accused No. 1 and assaulted on the back portion of the head of PW 5 and there were bleeding injuries. Himself and PW 4 lodged the complaint. Accused assaulted PW 5 with M.O. 1. In the cross-examination he deposed that PW 1 assaulted PW 5 on the front portion of the head and accused No. 2 assaulted on the back portion of the head. He denied the suggestion that accused have not at all assaulted PW 5. He also deposed that he did not personally know about PW 5 giving amount to the accused. He does not know that PW 5 filed a civil suit claiming partition in the properties. PW 7-Dr. Suresh C.M. is the doctor who gave treatment to the injured, in his examination-in-chief deposed that there were four injuries to PW 5-Rama Naik, which are mentioned in his deposition at Serial Numbers 1 to 4. He further deposed that he has taken x-ray and C.T. scan of injury Nos. 1 and 2 and there were fracture of bones and injured admitted as indoor patient and got the treatment. Injury Nos. 1 and 2 are grievous in nature and injury Nos. 3 and 4 are simple in nature. He issued wound certificate as per Ex. P6. In the cross-examination he deposed to the question that when any person was proceeding on the vehicle fell down, then injury Nos. 1 to 4 mentioned in Ex. P6 can be caused. For that, he answered it all depends upon the place where he fell and the circumstance and such chances are very less. When it was suggested that if the head comes in contact with the stone there is possibility of sustaining injury No. 1. When it was suggested that if a person fell on the stony surface then there is possibility of sustaining injury No. 2, for that the witness answered the injury No. 2 is of different nature and there is no such possibility. He has also deposed that if a person fell from the vehicle and come in contact with the electric pole then there is possibility of sustaining injury No. 2. The witnesses denied the same. He further deposed and denied the suggestion that when PW 5 Rama Naik was admitted to the hospital there it is mentioned as RTA. The witness volunteered and deposed that he himself has certified the injured. Therefore, the mention made as RTA is false. He denied the suggestion that injured sustained such injuries in the accident and the doctor who treated PW 5 also mentioned in the records like that purposely he is giving false evidence. Witness denied that suggestion also. I have also perused the evidence of other witnesses. But looking to the evidence of complainant-PW 4, injured PW 5 and another eyewitness-PW 6 and the evidence of Doctor PW 7 it clearly go to show that the incident has taken place and accused Nos. 1 and 2 have assaulted PW 5 with an iron pipe on his head portion. I have also perused the wound certificate-Ex. P6 issued by the doctor wherein it is stated that x-ray of the skull and C.T. scan of the head was taken, which go to show that there were fractures of temporal and occipital bone and intra cerebral bleeding. In the wound certificate it is mentioned that injury Nos. 1 and 2 are grievous in nature and injury Nos. 3 and 4 are simple in nature. These materials clearly go to show that the appellants/accused Nos. 1 and 2 have assaulted PW 5 and caused the bleeding injuries over the head and thereby made an attempt to commit the murder of the injured PW 5. I have also perused Ex. D1 the summery sheet of Vijay Narayan Institute of Medical Sciences, Ballari and the patient''s name is shown as Ramu Naik. In this Ex. D1 it is mentioned head injury due to RTA the fracture of occipital bone fracture of temporal bone referred to higher Centre Nimhans and inpatient''s number is also same as mentioned in the wound certificate and the date of admission is mentioned as 10/03/2008. It is no doubt true, looking to the document-Ex. D1 it is mentioned that it is because of road traffic accident. But the defence has not placed any other material to show that this information has been furnished by the injured-PW 5 or who furnished this information to the hospital. Except this Ex. D1, there are no other materials to accept the same. On the other hand I have also observed and referred to the oral evidence of the prosecution witnesses PW 4 to 6 and the doctor''s evidence PW 7 who all constantly deposed that they have personally seen the appellants/accused assaulting the injured with an iron pipe-M.O. 1 and causing the injuries. And PW 7 deposed that no possibility of sustaining injuries in RTA. When such evidence is adduced by the prosecution, only on the basis of Ex. D1 and without any further supporting materials that it is because of the accident the incident has been taken place, the entire materials placed by the prosecution cannot be disbelieved. Therefore, the trial Court has rightly appreciated the materials placed on record both oral and documentary and rightly comes to the conclusion in convicting the accused persons for the alleged offence under Section 307 read with Section 34 of IPC. Looking to the materials placed on record, both the oral and documentary evidence, the trial Court is justified in recording the said findings. The view taken by the trial Court based on the materials available on record is one of the possible view taken in the matter. I do not find any illegality or any perverse approach in the view taken by the trial Court and there are no grounds to interfere with the judgment and order of conviction passed by the trial Court.

So far as the quantum of sentence is concerned, through the offence punishable under Section 307 of IPC is punishable with 10 years imprisonment and if hurt is caused then it is extended even to life imprisonment. But the trial Court while passing the order and imposing the sentence has taken the age factor of the accused persons and also their family background and after considering these materials on record the trial Court took very lenient view in the matter and imposed the imprisonment only for a period of one year with fine of Rs. 5,000/-. Therefore, looking to these materials on record, the quantum of sentence imposed by the trial Court is very reasonable and proper and it is proportionate also. Hence, there is no merit in the appeal. Accordingly, the same is hereby dismissed.

The appellants/accused are entitled to the benefit under Section 428 of the Cr.P.C. of the custody period, which they have already undergone.