Devendra Nagappa Hunashikatti and Others vs State of Karnataka

Rathnakala, J.—Though the case is listed for admission is taken up for final disposal.

The appellants herein are convicted by the Court below for the offences punishable under Sections 324, 504 r/w 34 of IPC. They are ordered to undergo simple imprisonment for six months for the offences punishable under Sections 324 r/w Section 34 of IPC and further imprisonment of three months in respect of offence punishable under Section 504 r/w 34 of IPC. That apart, the accused are ordered to pay Rs. 5,000/- each to PW-2, PW-5 and PW-7 as compensation. In the event of failure to pay the compensation, they shall undergo further simple imprisonment for two months.

The case of the prosecution is the accused persons assaulted CW-4 Rayappa with sickle, accused No. 4 assaulted on his leg with Kuntimeli (club), CW-4 to CW-7 came to pacify quarrel, accused No. 1 assaulted on the head of CW-6 Smt. Savitri on her right hand with a sickle and all the three of them assaulted CW-4 Rayappa with sickles near his left ear, behind left ear left thumb, left 4th finger; accused No. 1 assaulted him with kunti mela on his legs; they abused CWs in filthily.

On filing of the charge sheet by the Investigating Officer, the learned Magistrate procured the accused, framed charges for the offences punishable under Sections 325, 324, 307, 504, 506 of IPC r/w. Section 34 of IPC. The accused pleaded not guilty; prosecution entered into trial and examined PWs-1 to 11, marked documents at Exs. P-1 to P-20 and material objects at M.O. Nos. 1 to 11; recorded the statement of accused under Section 313 of Cr.P.C.; the accused did not lead defence evidence; after giving audience to both, the judgment of conviction and sentence is passed.

Learned counsel for the appellants submits that the evidence of the prosecution witness was contradictory to each other. The witnesses improved their versions at the time of trial. The evidence of interested witnesses was relied and acted upon by the Court below. The independent eyewitnesses cited in the charge sheet were not examined. The driver who is alleged to have shifted the injured in his ambulance is not examined, that is how an important piece of evidence was not made available. The weapons alleged to have been used by the accused for commission of offence was not produced before the Medical Officer by the Investigating Officer for his opinion. There is no evidence as to which of the accused used which of the weapons at M.O. Nos. 1 to 4. The opinion of the doctor in respect of the injuries is not conclusive. The sentence imposed on the appellants is disproportionate to the offence for which the Court has drawn conviction. Moreover, the complainant and the accused are close relatives. Without passing an order to pay fine, the accused are directed to pay compensation which is not in accordance with the provisions of Section 357 of Cr.P.C.

Learned Government Pleader supports the judgment of conviction recorded by the Court below and he submits that acting under Section 386 of Cr.P.C. this Court may modify the sentence by imposing fine amount, out of which, a portion may be awarded to the victims of the incident as compensation.

In the light of above submission, the points that arise for my consideration is,

"1. Whether the judgment of conviction rendered by the Court below requires intervention?

Whether the punishment imposed is just and proportionate?"

On entering into trial, the prosecution examined the father of the injured complainant as P.W. 1. He is an injured witness to the incident. He testified about the four accused persons coming to the spot; accused Nos. 1 to 3 holding sickle, accused No. 4 was holding with the club (kunti meli); abusing CW. 4/his son filthily, accused Nos. 1 to 4 assaulting him and causing injury; when his son/complainant arrived there, he was assaulted with sickle and accused No. 3 assaulting his daughter-in-law, accused No. 4 dragged and pushed her down. He identified the weapons as sickles used by accused Nos. 1 to 4. During the cross-examination, he admits about a previous quarrel which ensued between the parties, finally, which ended up with a compromise.

P.W. 2 is the complainant who corroborated his complaint averments Ex. P.1. So also the evidence of his father/P.W. 1. He testified that he was assaulted by Devendra with the Sickle on his head and thereafter, dragged his wife Savithri and assaulted her. All the accused Nos. 1 to 3 assaulted his brother Rayappa with a Sickle and accused No. 4 assaulted him with a Club (Kunti meli). It was suggested during the cross-examination that his family is not in talking terms with the accused family.

P.W. 3 is the witness to the spot mahazaar/Ex. P.2 and the seizure mahazar/Ex. P.5 under which blood stained clothes of the accused was seized, and Ex. P.6 the recovery mahazaar under which the Sickle was seized. Though he identified his signature on the mahazaars did not corroborate their contents. He also identified his photo/Ex. P.7. He was declared as hostile by the prosecution.

P.W. 4 is the witness for the spot mahazaar/Ex. P.2 under which the Sickle, broken bangle pieces, blood stained mud was seized by the I.O. Photographs were taken under Exs. P.3 and P.4. He is also witness to the mahazaar Exs. P.5 and P.6.

P.W. 5 is the wife of the complainant. She supported the case of the prosecution. P.W. 6 is the sister-in-law of the complainant. Both of them supported the case of the prosecution.

P.W. 7 is the brother of the complainant. He is an eyewitness to the incident and supported prosecution case.

P.W. 8 is the eyewitness. He turned partially hostile to the prosecution case. However, he supported the case of the prosecution to the extent that the accused came to the spot with Sickles and assaulted the P.W. 1/complainant and family members. When he tried to rescue them on seeing the injured with bleeding, the accused left the Sickles at the spot and retracted. However, he bailed out accused No. 4 and he has not stated about the indulgence of accused No. 4 in the incidence.

P.W. 9 is the Casualty Medical Officer of District Hospital, Belgavi, who received the injured on the night of 08.02.2011.

P.W. 10 is the Medical Officer of the General Hospital at Khanapur, who treated the injured and he has issued the wound certificates/Exs. P.13 to P.16.

P.W. 11 is the PSI who received the complaint/Ex. P.1 from the complainant, who was taking treatment in the Hospital. He has testified on conducting the investigation and on concluding the investigation, charge sheet is filed.

The trial Court on an appreciation of the evidence of the witnesses finds that P.Ws. 1, 2, 5 and 7 have stated about the accused abusing P.W. 7 in a filthy language and records conviction under Section 504 of IPC. The medical evidence adduced by two doctors with the supporting documentary proof that is, the wound certificate and the MLC register outweigh the consideration of the Court to hold that it is a case falling under Section 324 but not either under Section 307 or 326 of IPC. Though P.W. 7 is certified for suffering grievous injury, it was a possible fracture of left first proximal finger. There was a certificate to that effect that it was a grievous in nature and the learned Judge has held that he has suffered simple injury falling under Section 324 of IPC. That apart, there was sufficient medical evidence in respect of the P.Ws. 2 and 5, who have also suffered simple injuries during the incident. By appreciating the oral testimony of the injured witnesses, though not corroborated by independent witness, the learned Judge has recorded conviction under Sections 504 and 324 of IPC.

The main attack on the impugned judgment is, the trial Court has acted upon the statement of the interested witnesses which was not corroborated by independent eyewitness and one of the panch witnesses has turned hostile.

The Apex Court in:

Manga @ Man Singh Vs. State of Uttarakhand, has upheld the conviction, wherein only injured witnesses were examined by taking judicial note of the fact that the members of public are reluctant to be joined as witnesses.

In Nagarjit Ahir etc. Vs. State of Bihar, it was held that the evidence of injured witnesses in the absence of strong reasons, their testimony cannot be discarded.

Relevant lines from the case of Champaben Govindbhai Vs. Popatbhai Manilal and Others, , at para No. 25 read thus:

"25. It has been repeatedly pointed out by this Court that just as the witnesses are related to the deceased that is no ground to discard their evidence. In the instant case, there are three eyewitnesses and one of them is an injured witness. Their evidence cannot be discarded just on the ground that they are related to the deceased. It is settled law that if the evidence of the witnesses, who are related, is credible and cogent, the fact that they are related is not a ground for discarding such evidence. This Court has held that related witnesses do not normally spare the guilty and implicate innocent persons." In the matter of Gajula Venkateswara Rao and Others Vs. State of Andhra Pradesh, , when the defense contended that ''the injured witnesses were partisan witnesses'' it was held "no inflexible rule that their evidence cannot be relied upon in every case and brushed aside by noticing that the witnesses found present at the spot were natural witnesses and were competent to depose about the incident more so, when they themselves are injured witnesses, unless there is any cogent reason or apparent material on the record, otherwise their evidence cannot be discarded merely because they belong to the same party or they are connected with the victims.''

In Mohammad Mian Vs. State of U.P., , it was observed that the ''......... the so called independent witnesses tend to stay far away and are not willing to come forth as they often face grave consequence. The prosecution has therefore, perforce to fall back on the testimony of the witnesses who are friends or family members of the victim........."

In the case on hand, it was never the suggestion that the incident occurred in the presence of independent eyewitness. If at the place of incident, except the injured, there was no other independent witness, how can the prosecution be expected to get an independent witness except the evidence of injured witnesses themselves? One of the panch witnesses who turned hostile to the prosecution case has identified the signature. However, another panch witness has supported the prosecution case.

Admittedly, the complainant party and the accused party were in inimical with each other for the last 15 years and two years prior to the incident also, there was a disturbance between them which ended up in compounding. They belong to different political parties. Enmity is a double-edged weapon, which can either culminate in a false complaint by the complainant or root cause for aggression by the accused. The evidence of all the injured witnesses appear to be in the natural course. During the spot mahazaar, there was evidence of the incident whereby, blood stained mud, broken bangle pieces and a blood stained weapon/Kunti Meli (club) were found and seized from the scene of occurrence. Further the blood stained clothes/Ex. P.5 of the injured is collected by the doctor and the same is seized under the mahazaar and the weapons (3 in number) used by the accused were seized at the instance of the accused No. 1 from his residence in the presence of panch witnesses at Ex. P.6.

In view of the above unimpeachable evidence, I hold that the appreciation of evidence by the Court below is on proper line and the conviction recorded under Sections 304 of IPC and 504 of IPC is proper.

However, coming to the quantum of punishment, the accused are imposed imprisonment for 6 months for the offence under Section 324 of IPC r/w. Section 34 of IPC and simple imprisonment for 3 months in respect of Section 504 r/w. Section 34 of IPC, with further direction to each of the accused to pay compensation of Rs. 5,000/- to each of P.W. 2, P.W. 5 and P.W. 7 as compensation.

The complainant and the accused are the close relatives; they are not criminals; they are all residents of the same village. Having regard to the fact that the accused party and the complainant party are still to continue in the same locality and community, in my considered opinion maintaining the sentence of simple imprisonment would further worsen their relationship and same will carry forward to their next generation also. Section 324 of IPC is punishable with imprisonment of either description for a term which may extend to 3 years, or with fine or with both. Hence, instead of simple imprisonment of 6 months as ordered by the trial Court, if the accused are imposed of fine amount of Rs. 10,000/- each, that would suffice the ends of justice being met. That apart, out of the fine amount so paid, if the injured witnesses are awarded compensation that would sub-serve the ends of justice.

Further instead of simple imprisonment of 3 moths under Section 504 of IPC, if they are ordered to pay Rs. 1,000/- each, that would be the proportionate punishment.

Accordingly, the appeal is disposed of by maintaining the order of conviction. The sentence imposed is altered. Instead of simple imprisonment of six months under Section 324 of IPC and imprisonment of three months under Section 504 of IPC, the accused are imposed fine of Rs. 10,000/- each in respect of the offence punishable under Section 324 of IPC and Rs. 1,000/- each for the offence punishable under Section 504 of IPC r/w. Section 34 of IPC. The appellants are ordered to pay fine amount of Rs. 10,000/- each in respect of offence under 324 of IPC and Rs. 1,000/- each in respect of offence under 504 of IPC.

In the event of failure to pay the fine amount they shall undergo imprisonment for six months for the offence punishable under Section 324 of IPC and three months for the offence punishable under Section 504 of IPC.

Out of the amount deposited, Rs. 10,000/- shall be given to P.W. 7 and Rs. 5,000/- each shall be paid to P.Ws. 2 and 5 as compensation.