Gopalappa vs State

Subhash B Adi

Appeal is by the accused against the judgment of conviction in B.C. Ho. 118/2005, dated 22.12..2006, on the file of II Additional Sessions Judge, Kolar,

2, Accused was charge sheeted and tried for the offence punishable u/s 307 of IPC and u/s 3(1)(X) of SC/ST (Prevention of Atrocity) Act, 1989.

The case of the prosecution in brief was that, PW1. had two wives namely Lakshmamma and Gowaramma. 1 1/2 month prior to the data of incident, the accused and Lakshmamma were found together eating beetle nuts and enraged by the said scene PW1 had warned the accused,

On 13.01.2005, at about 11.00 a.m. PW1 was on his way to Urata Agrahara through pathway, at about one furlong from the village, the accused came on his TVS vehicle, parked the same and took the chopper-MO1 from his bag and tried to assault him on his head. However, the PW1 escaped the assault on his head and sustained injuries on his left hand and at forehead and also his right thumb was cut. By that time PW4-H.Nagaraja and Narayanaswamy came and separated the accused and took PW1 to SNR Hospital at Kolar where he was treated by PW5-Doctor who issued Ex.P4-Wound Certificate. However, PW5 was of the opinion that PW1-injured was to be taken to the bigger hospital accordingly, he was taken to R.L. Jalappa Hospital where, PW9 treated PW1 and issued Ex.P5-Wound Certificate, PW10 who got the information from R.L. Jalappa Hospital went to the hospital and recorded the statement of PW1 as per Ek.P1 and registered the case and sent the FIR to the jurisdictional magistrate. Thereafter, he conducted investigation and after completion of the investigation he filed the chargesheet for the offence punishable u/s 307 of IPC and Section 3(1)(X) of SC/ST (Prevention of Atrocity) Act, 1989.

On committal before the learned Sessions Judge, the learned Sessions Judge securing the presence of the accused framed the following charges for the offence punishable u/s 307 of IPC and Section 3(1)(X) of SC/ST (Prevention of Atrocity) Act, 1989.

That on 13/01/2005 at about 11.00 a.m when CW1 S Nallappa was going from Gottahalli to attend his official duty in Urati Agrahara road, you the accused came in a TVS Champ bearing its No. KA07-H-160 did on act, assaulted CW1 with Iron Sickle on his left hand, right hand thumb, left hand palm, left arm accusing simple and grievous injuries to him. with such intention or knowledge and under such circumstances, that if by that act you had caused the death of CW1 S Nallappa, you would have been guilty of murder and thereby committed an offence punishable U/Sea 307 of IPC and within my cognizance.

Secondly, that on the above said date, time and place, you the accused not being the member of SC/ST community, when CW1-S Nallappa who belongs to SC community was going from Goottahalli village to attend his official duty in Urati Agrahara road, you the accused came in a TVS Champ bearing its No. KA07-H-160 assaulted CW1 with Iron Sickle on his left hand, right hand thumb, left hand palm, left arm accusing simple and grievous injuries to him, with such intention or knowledge and under such circumstances, that if by that act you had caused the death of CW1-S. Naliappa, you would have been guilty of murder and thereby committed on offence punishable U/Sec 3(2) (v) of SC/ST (Prevention of Atrocity) Act, 1989 and within my cognizance.

Accused pleaded not guilty and claimed to tried. The prosecution in order to prove the charge examined PW1. to PW11 marked Exs.P1 to P11 and produced MO1-Sickle, MO2-Kaki Shirt, MO3-Kaki Pant, MO4-Bloodstained mud, MO5-Sample mud.

The trial Court relying on the evidence of PW1-the injured, PW5-doctor who treated PW1 and PW9-doctor who treated subsequently and PW2 and PW3 claiming to eye-witnesses held that the prosecution has proved the charge for the offence punishable u/s 307 of IPC, accordingly, it convicted the accused for the offence punishable u/s 307 of IPC. However it found that there is no evidence to prove the offence punishable u/s 3(1)(X) of SC/ST (Prevention of Atrocity) Act, 1989 and accordingly, the accused was acquitted for the said offence. As against the said judgment of conviction for the offence punishable u/s 307 of IPC, the accused is before this court:,

Heard Sri. M.R. Nanjunda. Gowda, learned counsel for the accused and Sri Bhavani Singh, learned SPP and also Sri, Dinesh Kumar K. learned counsel for the applicant (complainant).

Ex.P1 is the complaint registered by the PW10. In the complaint, PW1 has stated that the accused came on TVS from behind, stopped the vehicle, took the chopper and assault on his forehead, right hand and by that time, PW4 and Narayanswamy came. PW1 -complainant in his evidence has stated that, at the time of incident, PW6-S.Krishnappa, PW4-H.Nagaraja, Narayanaswamy, Thimmakka and Yalagappa were also present. The names of Krishnappa, Thimmakka and Yalagappa are not found in the complaint. Statement is recorded at 8.30 p.m. on 13.01.2005. Though the complainant initially was admitted to SNR Hospital at about 12.00 room on 13.01.2005, from there he was discharged and admitted to R.L. Jalappa Hospital PW10 in his evidence has stated that on 13.01.2005 at about 8.00 p.m., he received the information from R.L. Jalappa Hospital and he went to the hospital and recorded the statement. Though, learned counsel submitted that there is inordinate delay in recording the statement of PW1, however, from the evidence of PW5 and PW9 it is clear that; initially PW1 was treated in SNR Hospital and PW5 in her evidence she has stated that since the injuries were grievous she had directed PW1 to be taken to the bigger hospital. This proves that PW1 was being treated in two hospitals and intimation was issued by R.L. Jalappa Hospital, it cannot be said. that there is any delay in recording the statement of PW1 and FIR has also reached at 10.55 a.m.. on 14.01.2005.

PW1 is injured, he has categorically stated that the accused came and assaulted. Though he has been cross-examined, and it is suggested that PW1 had borrowed Rs.10,000/- from the accused and he has falsely filed a complaint against the accused, PW1 has denied the same, However, there is no evidence nor there is any material to show that PW1 borrowed money from the accused. No doubt, PW2 and PW3 have been examined as eye-witnesses to the incident but their names has not been mentioned in the Ex.P1 and in Ex.P1 the complainant has specifically referred only two names, that is PW4 and Narayanaswamy had taken him to the hospital, If the PW2 and PW3 were present at the place of occurrence they would have taken the PW1 to the hospital as they are close relatives of the PW1, but there is no evidence that PW2 and PW3 accompanied the PW1 to the hospital Evidence of PW2 and PW3 is contrary to the statement of PW1 given to the police as per Ex.P1, Hence, it does not prove that PW2 and PW3 are the eye witnesses. However, as far as PW1 is injured is concerned there is no reason to disbelieve his evidence The suggestion that PW1 has borrowed money is not shown from any other evidence. The motive has been specifically mentioned by PW1, as his first wife was found in the company of accused about 1 1/2 month''s ago and there was quarrel between him and the accused.

The evidence of PW1 that be had suffered injury is corroborated by evidence of PW5 and Ex.P4. The incident had taken place on 13.01.2005 at about 11.00 a.m. PW1 was admitted to the SNR Hospital at about 12.00 noon on the same day and there is no delay. PW5 clinically stated that PW1 has suffered four injuries. Ex.P4 supports the same. Though it does not mention the assailants'' name that discrepancy will not have any effect on the evidence of PW1 is concerned. PW9-doctor of R.L. Jalappa Hospital subsequently treated PW1 is also clear from his evidence and Ex.P5. The evidence led by the prosecution proves that the accused assaulted PW1.

Next question that arise as to the nature of the injury Ex.P4 shows the following injuries:

i) An incised wound over palmar aspect of right thumb 3 x 1/4 x 1/4 cm e deformity

ii) An incised wound 8 x 2 x 1 cm on the left side of forehead exposing the vault e step. (in frontal region)

iii) An incised wound 12 x 2.5 x 1.5 cms deep on palmar aspect of left hand e injury to tendons and vessels and median nerve

iv) An incised wound 7 x 4 x 1 cm on medial aspect of left forearm-proximal to wrist

Though PW5 in her evidence she has stated that injury Nos. 1, 3 and 4 are grievous in nature, injury Nos. 1. 3 and 4 are cut incised wound measuring 3 x 1/4 x 1/4 cm, injury No.3 is incised wound 8 x 2 x 1 cm on the left sale of forehead, but none of the injuries do show that there was any fracture PW9 who treated PW1 has issued Ex.P5. Ex.P5 also shows four injuries and it suggest that there is a fracture of Lunate and Capatate. However, to prove that there is a fracture the prosecution has not produced any X-ray and radiology report except wound certificate-Ex.P5 and evidence of PW9, This by itself does not prove that PW1 has suffered fracture. Ex.P5 shows that PW1 was admitted on 13.01.2005 and discharged on 07.02.2005. PW9 in his evidence admits that there is a correction of discharge date it is made as 07.02.2005. In his evidence he has stated that PW1 was admitted on 30.01.2005. It creates serious doubt as to whether PW1 was treated as inpatient for a period of 20 days. What appears Ex P5 is. to make 20 days the date has been corrected as 07.02.2005 which would make 20 days, As far as date is concerned, there is serious doubt as to why such correction is made No explanation is forthcoming from PW9.

14, Hence, from the evidence lead by the prosecution, it only shows as PW1 suffered injury and accused has assaulted. Though there is discrepancy as regard to the weapon used, in the wound certificates complaint and evidence of PW9 clearly shows that accused assaulted PW1. There is no doubt as regard to the weapon is concerned. There is no reason to disbelieve his evidence.

However if the wound certificate do not suggest that they are grievous injuries and even the Ex.P5 does not suggest that PW1 was treated as inpatient tor more than 20 days in the hospital, the injuries cannot be treated as grievous injury within the meaning of Section 320 of IPC, Hence, the evidence of prosecution only proves that the accused had assaulted PW1 with a chopper and caused injury. Chopper is a weapon which can cut the body end it fall within the meaning of the weapon referred u/s 324 of IPC, As such, when the evidence clearly established that the PW1 has been assaulted with a chopper and has sustained bleeding injuries. In my opinion material produced by the prosecution proves the offence punishable u/s 324 of IPC and not Section 307 of IPC.

In order to prove the offence punishable u/s 307 of IPC. no doubt, the gravity of the injury itself may not he the ground, hut the Intention of the accused to kill PW1 is necessary However, the evidence does not prove that the accused intended to kill PW1. If the chopper is used for assault and accused had intention to commit the murder of PW1 certainly he would have assaulted with the chopper on vital part of the body of the PW1, Though there is injury on forehead it is not a grievous injury and if the assault could have been made with the chopper to kill, it would cause grievous injury. Hence, the intention of the accused to kill the PW1 is not proved. The prosecution has failed to establish the charge for the offence punishable u/s 307 of IPC. However the evidence establishes the offence u/s 324 of IPC, Hence, I pass the following order:

ORDER

i) Accordingly, the appeal is partly allowed,

ii) Judgment of conviction of the accused for the offence punishable u/s 307 of IPC is set aside,

iii) Accused is convicted for the offence punishable u/s 324 of IPC.

Learned Counsel for the accused submitted that the accused has a daughter who is studying in SSLC. At this stage, if the accused is sentenced with imprisonment, it will effect an her career and also marriage prospectus in future. He also submits that there is no other offence alleged against the accused not there was any other incident after the incident not there is no dispute or quarrel between the accused and the complainant and they are all residing in the same village.

On the other hand, learned State Public Prosecutor submitted that reasonable punishment or fine be imposed.

Some of the certificates produced by learned counsel for the accused shows that be has a only daughter and she is studying and normally in case the father is sentenced with imprisonment is likely to impact on her career and also marriage prospectus. In my opinion, the sentence served i.e., pre-trial detention and on conviction by the accused could be held sufficient sentence and fine could be imposed,

Accordingly, accused is sentenced with imprisonment for a period of pre-trial detention and sentence served after conviction with fine of Rs.50,000/- out of which, Rs.45,000/- be paid to the PW1 and Rs.5.000/- adjusted to the State Account towards fine which is inclusive of the fine amount ordered by the trial Court In default, the accused to undergo sentence for four months Simple Imprisonment.