Krishna R. vs The State of Karnataka

Budihal R.B., J.

This appeal is preferred by the accused being aggrieved by the judgment and order of conviction dated 10.6.2010 passed by the Additional Sessions Judge and Presiding Officer, Fast Track Court-12, Bengaluru, in S.C. No. 1020/2008 convicting the appellant for the offence punishable under section 307 of IPC.

Brief facts of the prosecution case as per the complaint Ex. P.1 is that P.W. 1 one Mohan Kumar lodged the complaint alleging that about six months back, the complainant borrowed Rs. 1,000/- as loan from one Krishna of S.R. Nagar, the appellant accused herein. As the complainant was residing in Kamakshipalya, it was not possible for him to come to S.R. Nagar and to repay the amount to him. About one month''s back the said Krishna came to the house of the complainant and insisted for payment of the amount. The complainant told that he was not having money and he will pay the same after some days. For that the accused Krishna threatened the complainant that if he did not pay the amount, he will not spare him. The complainant was working under one Gopal and the said factory of Gopal was at Kamakshipalya and every week he used to come to S.R. Nagar and he has collected his salary. On 2.2.2008, at 8.15 p.m., the complainant was walking in front of Venkateshwar General Stores in order to get the amount from Gopal. The accused came and asking the complainant how many times he has to tell to pay his amount and he will not leave him and commit his murder and all of a sudden, took one slab stone and hit on the nose of the complainant and caused the bleeding injury. There was heavy bleeding and when complainant screamed and cried, people came there. Immediately, the accused went away by throwing the stones there and Gopal, the employer of the complainant immediately took the complainant to St. Johns Hospital and as the bed was not available in the said hospital, he was taken to Star hospital at HSR Layout and admitted there and form that day, as he was not in a position to speak, he is giving the statement on 5.2.2008. Hence, he sought to take action against the accused Krishna.

On the basis of the complaint, the case has been registered in S.R. Nagar police station, Bengaluru in Cr. No. 15/2008 against the accused for the offence under section 307 of IPC. After conducting and completing the investigation, the police filed charge sheet against the accused for the offence under section 307 of IPC.

During the course of the trial, the prosecution has examined 13 witnesses as P.Ws. 1 to 13 and got marked the documents Exs. P.1 to P.13(b) and got marked the material objects M.Os. 1 to 6. No evidence or the documents were produced on the side of defence. After considering the materials placed before it, ultimately, the trial court convicted the appellant accused for the offence under section 307 of IPC.

Heard the arguments of learned counsel appearing for the appellant accused and also the learned HCGP for the respondent State.

Learned counsel appearing for the appellant during the course of his arguments made the submission that there is delay in recording the statement of the complainant and the complainant has admitted that he has taken loan from the accused person. P.W. 2 is not an eye witness and not identified the stone. He has also made submission that there was darkness at the spot and hence, there was no possibility to identify the assailant about the seizure of the stone. No cogent evidence has been placed by the prosecution through the mouth of panch witnesses. The learned counsel also submitted that Ex. P.3 spot mahazar was conducted on 5th and not on the next day of the incident. P.W. 10-Doctor has not stated that injuries are endangering human life. Even if it is presumed for the sake of arguments and appreciation without admitting the same that there is supporting evidence, the incident took place in a spur of moment and hence, there cannot be any intention on the part of the appellant accused to make an attempt to commit the murder of the complainant. At the most, the offence may fall under section 335 of IPC. Hence, he submitted that these aspects were not at all not appreciated by the trial court and the trial court has wrongly convicted the appellant accused for the offence under section 307 of IPC. Hence, submitted to allow the appeal and to set aside the judgment and order of conviction under appeal.

Per contra, learned HCGP submitted that there was dispute between the accused and P.W. 1 in relation to repayment of the hand loan borrowed by the complainant. He submitted that P.W. 2 is the eye witness to the incident and he has supported the case of the prosecution. The doctor P.W. 10 has deposed about the nature of injuries sustained by the complainant and issued the wound certificate as per Ex. P.6. He also submitted that Ex. P.7 is the opinion letter issued by P.W. 10 after examining the stone and gave the opinion stating that it is possible to sustain the injuries due to the assault by the stone. He also submitted that delay in lodging the complaint has been properly explained by the prosecution and only on the ground of delay the prosecution case cannot be rejected. He also submitted that P.W. 13 is the witness on the FSL and he has given evidence in respect of the report as per Ex. P.8. He made further submission that P.Ws. 3 and 9 are the witnesses for the seizure mahazar have also supported the case of the prosecution. P.W. 7 who has been examined is a person who recorded the statement of the injured. He also submitted that the evidence of P.W. 1 complainant is corroborated by medical and other evidence produced in the case. The injuries are on vital parts of the body and grievous in nature. Hence, he submitted that the trial court has properly appreciated both oral and documentary evidence and rightly convicted the accused. There is no merit in the appeal and hence, the same may be dismissed.

I have perused the oral evidence of P.Ws.-1 to 13, documents Ex. P-1 to P-13 and material objects M.Os. 1 to 6.

P.W.-1/Mohan Kumar has deposed in his evidence in the examination in chief that he know accused, who is before the Court, six months earlier to the incident of the case. He borrowed Rs. 1,000/- from the accused and because of some reasons he was not able to pay the amount to the accused. One month earlier to the incident of the case, accused came to his house, asked to return the amount and he requested for sometime and accused posed threat that if he did not pay the amount early, he will not leave him. On 02.02.2008 evening at 7.00 p.m. to get his salary he had been to Lalbagh road. Accused came infront of the office of his employer at about 8.00 p.m. and asked the amount from the complainant. He told that he will pay the same on the next day, at that time accused took stone, which was lying there and assaulted with stone on his face. There was bleeding and his clothes were blood stained. The nasal bones were fractured and the bones below the eyes were also fractured as accused assaulted him. He became unconscious. He screamed and cried when accused assaulted him and as the neighbors came, accused ran away. The employer and the neighbours came and shifted him to St. John''s Hospital for treatment and then shifted to Star Hospital. He was hearing the talks of the persons, who admitted him to the hospital. The person, who assaulted him, is before the Court. When he was in the hospital he gave the complaint as per Ex. P-1 and P-1(a) is his signature. The blood stained clothes were seized by the Police. He has seen the mahazar Ex. P-2 and it bears his signature as per Ex. P-2(a). The stone is M.O. 1. The accused assaulted him with the stone M.O. 1. M.Os. 2 to 4 are his clothes.

In the cross-examination by the advocate for accused, P.W.-1 has deposed that, there was a money transaction between himself and the accused. He admitted as true that himself and his brother were doing chit business. He is not having documents to show that he borrowed Rs. 1,000/- from accused. One month earlier to the incident when accused came to his house, he has not posed threat and when accused asked the money, neighbours were not present. In the year 2007, because of the festival and in connection with the chit transaction, they were liable to pay Rs. 5,000/- to the accused. But he denied the suggestion that when accused asked the money they postponed by one or the other reason. He denied the suggestion that to avoid the payment of the said amount, himself and his elder brother filed false case against the accused. He denied the suggestion that in the year 2005 he met with a motorbike accident and in that accident there was injuries on his face. He admitted as true that the place of offence is the place having crowded people. When accused came and picked-up quarrel with him, no other persons were present and when he cried and screamed people came there. He denied the suggestion that he sustained injuries on his own and accused has not caused injuries to him. On the next day of the incident, Police have seized M.O. 1. Accused took the stone and assaulted on his face and when he fell on the ground he assaulted two times with the said stone. M.O. 1 was shown to him by the Police. The said stone and the clothes were shown to him on the same day in the hospital.

P.W.-2/Ravi has deposed in his evidence in the examination in chief that in the Lalbagh road he is having Lakshmi Venkateshwara General Store. He knew the accused and the complainant. About one year back at about 8.00 p.m. there was a quarrel between the accused and the complainant, accused assaulted the complainant with stone and there was bleeding on the face of complainant. At the time of incident there was light. Complainant was lying on the ground. Then he went and informed Gopal Sha. Sha took the complainant to the hospital. As there was lapse of one year he cannot identify the stone.

In the cross-examination by the learned counsel for the accused, P.W.-2 has deposed that from morning till evening he will be having good business in his shop and there will be crowd of people infront of his shop. Earlier to the incident he was not having acquaintance with complainant and the accused. He cannot say the exact time of the incident. He admitted as true that at the time of incident there was darkness. From the spot, his shop is at the distance of 10 feet. When complainant screamed and cried then he has seen him lying on the ground, by that time accused has ran away and he does not know who is that person. He denied the suggestion that at the time of incident accused was not there and to help the complainant he is giving false evidence. In the re-examination by the PP, P.W.-2 has deposed that in his cross-examination he has stated that there was darkness, but as there was light the passing of people was visible.

P.W.-3/Sharavana has deposed in his evidence in the examination in chief that he seen mahazar Ex. P-3 and P-3(a) is his signature. In the month of February 2008, Police seized the blood stained stone, blood stained mud and sample mud at Lalbagh road. One Ramesh was also present at that time. P.W.-5/Gopal has shown the spot to the Police. Mahazar was conducted in between 5.00 p.m. to 6.00 p.m. and obtained his signature. The blood stained mud in the plastic container is M.O. 5 and the sample mud in another container is M.O. 6. M.O. 1 is the stone.

In the cross-examination by the learned counsel for the accused, P.W.-3 has deposed that on the next day of the incident Police have seized the blood stained stone, blood stained mud and sample mud. From the spot his house is at the distance of half kilometer. At the spot Police were present and when he went there, they obtained his signature. Complainant is his friend. Complainant is having his house by the side of his house. P.W.-5/Gopal shown M.Os. 1, 5 and 6 to the Police. He denied the suggestion that he had not been to the spot, Police have not conducted the mahazar and he has signed the mahazar in the Police Station. He has also denied the suggestion that as the complainant is his friend, to help him he is deposing falsely.

P.W.-4/Mahesh has deposed in his evidence in the examination in chief that in the year 2008 complainant was working in the Handloom factory of P.W.-5/Gopal. Complainant is his younger brother. On 02.02.2008 complainant went towards K.S. Garden at about 6.00 p.m. stating that he will bring the salary. P.W.-5/Gopal phoned to him in the evening and informed that his brother admitted to St. John''s Hospital. He went to the said hospital and seen his brother. His face and the clothes were full of blood. Srinivas is the elder brother of Gopal. In connection with money transaction there was a quarrel between the accused and the complainant and the accused made an attempt to commit the murder of his brother, which was informed to him by Srinivas. He has given the statement before the Police.

In the cross-examination by the learned counsel for the accused, P.W.-4 has deposed that he is working in Reliance Company. Himself and the complainant are not residing together. His house is 15 kilometers away from complainant''s house. There is no money transaction between himself and complainant and about the transactions of the complainant he is not having any information. He did not know from whom complainant has borrowed the money. There is no transaction between him and accused. He does not know that complainant was doing chit business and there was a transaction between the accused and the complainant. He does not know that in connection with the chit business, complainant has to pay Rs. 5,000/- to Rs. 10,000/- to the accused. Srinivas phoned and informed to him at 9.00 p.m. and he cannot say the time when he reached the St. John''s Hospital.

P.W.-5/Gopal has deposed in his evidence in the examination in chief that he know the complainant, who was working under him on weekly salary basis. He is having one factory at Kamakshipalya, where he is running handloom business. He is having his office at Lalbagh road. Complainant used to come to Lalbagh office to get his salary every Saturday in the evening in between 6.00 p.m. to 7.00 p.m. About 3 to 4 months back at 7.30 p.m. complainant received his salary. At 8.30 p.m. one boy came and informed that someone is lying and asked him that whether he know him. Then, he went there and he identified him as Mohan Kumar/complainant. Then he shifted him to Sindhi Hospital. The doctor advised to take him to Nimhans. In Nimhans, treatment was given for about two hours and they informed to take him to St. John''s Hospital for better treatment. Hence, he took the complainant to Stjohn''s Hospital and the elder brother of the complainant came to the said hospital. On the next day, Police came to the spot and enquired, they shown the spot to the Police. Police have seized one blood stained stone and the mud. He signed on the mahazar Ex. P-3 as per P-3(b). At the time of conducting the panchanama his brother Srinivas and another person were present. Panchanama was conducted from 5.00 p.m. to 6.00 p.m. He identified M.O. s-1, 5 and 6, Police have seized them in his presence.

In the cross-examination by the learned counsel for the accused, P.W.-5 has deposed that earlier he has not seen the accused. He admitted as true that at the time of incident he was not present there. After a boy informed him, he went to the spot and accused was not present there. When he went to the spot, except the complainant nobody was present there and the complainant was lying on the ground sustaining bleeding injuries. On the next day of the incident, when the Police came to the spot, they called him. He denied the suggestion that Police have not come to the spot nor conducted the mahazar in his presence and as complainant was working under him, to help him, he is giving false evidence.

P.W.-6/Krishnappa, Police Constable, has deposed in his evidence in the examination in chief that on 08.02.2008 himself and CW-11 were on the beat duty during the daytime. C.W. 16 has deputed him and CW-11, to search the accused. He was knowing the house of accused. Himself and CW-11 went to the house of accused at 12.20 p.m. and as accused was present, they brought him and produced before CW-16. His report is Ex. P-4 and P-4(a) is his signature.

In the cross-examination by the learned counsel for the accused, P.W.-6 has denied the suggestion that on 08.02.2008 he has not apprehended the accused nor produced before the Police Sub-Inspector.

P.W.-7/Smgregowda has deposed in his evidence in the examination in chief that on 05.02.2008 when he was in the Police Station, CW-16 told him that memo is received from Star Hospital at HSR Layout and asked him to go to the hospital and to record the statement of injured. Accordingly, at about 10.00 a.m. he went to the said hospital and enquired with the Medical Officer that where is the injured, then took the permission to record the statement of injured and then, recorded the statement. The doctor was also present at that time. He has obtained the signature of the doctor on that statement. Then, he came back and produced the statement before the PSI, the same is Ex. P-1.

In the cross-examination by the learned counsel for the accused, P.W.-7 has deposed that the doctor has not issued any endorsement in writing that he can enquire with the injured. The doctor has identified the injured. Ex. P-1 is in his handwriting, and he has not put his dastur signature on the same. He has denied the suggestion that on 05.02.2008 he had not went to the Star hospital and by sitting in the Police Station itself he has prepared the Ex. P-1.

P.W.-8/Snnivas has deposed in his evidence in the examination that about more than one-year back one incident took place and on that day at about 8.00 or 8.30 p.m. when he was in his house, he was informed that somebody assaulted to his relative. Then he came out of the house and seen, who has assaulted, at that time neither injured nor accused were present there. Then, he came to know that his brother injured was taken to the hospital and on enquiry it was said that NIMHANS hospital. After going to NIMHANS hospital, he came to know that P.W.-1/Mohan Kumar was the injured but he does not know how he sustained injury and who caused the same. He has not seen the quarrel nor he has taken his brother to the hospital. Even he does not know with what object injury was caused to his brother. So this witness was treated as hostile.

In the cross-examination by the PP, P.W.-8 has deposed that he has given the statement before the Police as per Ex. P-5. He denied the further suggestion that he personally witnessed the incident and given the statement as per Ex. P-5, even then, he is giving the false evidence.

P.W.-9/Annayappa has deposed in his evidence in the examination in chief that he has seen Ex. P-2 and it bears his signature as per P-2(b). In the month of February 2008 when he was working in the factory at S.R. Nagar, 6th Cross, one Police Constable came and told that there is panchanama for the seizure of clothes of the complainant/P.W.-1 and obtained his signature. He does not know, whose clothes they were, who gave those clothes and what is written in the panchanama. So this witness was also treated as hostile. When cross-examined by the PP, nothing has been elicited from his mouth to believe that in his presence the clothes of complainant were seized under panchanama Ex. P-2.

P.W.-10/Dr. Chandan has deposed in his evidence in the examination in chief that on 03.02.2008, one patient by name Mohan Kumar was referred from NIMHANS Hospital, Bangalore, for further management and patient was brought by family members. History was given that injury on face due to assault on 02.02.2008. He examined him at about 12.20 a.m. on 03.02.2008 and he noticed four injuries as mentioned at Sl. Nos. 1 to 4 in his deposition. Patient was referred to Neuro Surgeon and Facio Maxillory Department. He was admitted on 03.02.2008 and discharged on 15.02.2008. Said injuries are grievous in nature. He has given wound certificate as per Ex. P-6 and P-6(a) is his signature. The Police had sent one stone for his opinion. He opined that injuries sustained by the patient could be caused by such stone. His opinion is marked as per Ex. P-7 and P-7(a) is his signature. He identified the stone/M.O. 1. The Police had come to the hospital for recording the statement of injured on 05.02.2008. Police contacted him first and enquired about the fitness of the injured to give the statement and he had certified of his fitness to give the statement and on that effect he had affixed the signature on the statement, which is as per Ex. P-1(b). Police have recorded the statement of injured in his presence and he has witnessed the injured giving the statement and Police recording it, and to that effect he had signed as per Ex. P-1(c). He had sent MLC intimation to the Police when the patient was brought to his hospital. Basing on the X-ray, CT-Scan report, which were verified by him and opining that, the injuries are grievous injuries and they could be caused by stone like M.O. 1.

In the cross-examination by the advocate for accused, P.W.-10 has denied the suggestion that he is not a Neuro Surgeon and not a fit person to say about the injuries mentioned in Ex. P-6. By looking to the nature of the injuries he opined that such injuries could be caused by the weapon like M.O. 1/Stone. He denied the suggestion that these injuries could be caused whenever any person falls on such stones. When the patient brought to his hospital there was profused bleeding on his face and he was conscious, he was in a speaking condition. He denied the suggestion that said patient has not sustained injuries as stated by him and only in order to help the patient he is giving false certificate. He has denied the further suggestion that such injuries could not have been caused by means of stone like M.O. 1. While recording the statement except him and the Police personnel, no third person was present. He denied the suggestion that Ex. P-1 is not recorded in his hospital in his presence.

P.W.-11/S. Radha has deposed in her evidence in the examination in chief that from the year 2004 she is working as Scientific Officer in the FSL at Bengaluru. On 26.02.2008, in connection with crime No. 15/2008 of S.R. Nagar Police Station, six sealed bags were received in their office and the same were numbered as BS 113-08. The bags were containing M.Os. 1 to 6 and they were subjected to scientific examination to ascertain whether there is presence of blood in the said objects or not. She examined them and gave her opinion that except item No. 2, in all other objects there was presence of blood. In this connection, she has issued her report as per Ex. P-8 and her signature is P-8(a). She sent her report through her superior officer to the concerned Police Station, along with them she has also sent one letter having the seal, same is Ex. P-9 and P-9(a) is her signature. She has seen the objects before the Court. They are M.Os. 1 to 6.

In the cross-examination by the learned counsel for the accused, P.W.-11 has deposed that the objects having the bloodstains, either on the stone or on the clothes, if preserved scientifically, even after one year it can be ascertained that whether the blood is of the human being or the animal. She has denied the suggestion that in the objects sent to her, were not preserved scientifically, if there was blood stains on the stone or on the clothes it will be with the said object and in case of ram they cannot give the definite opinion and in case of direct sun rays on the said object also they cannot give definite opinion. She has denied the suggestion that normally within three hours, the blood, either on the stone or on the clothes, will loses its existences and she has deposed that 48 hours is required for the same. She has denied the suggestion that when she examined the stone there was no blood stains.

P.W.-12/R. Nagaraj, Sub-inspector, has deposed in his evidence in the examination in chief that on 05.02.2008 at 4.50 p.m. P.W.-7/Smgregowda brought the statement of P.W.-1/Mohan Kumar and produced before him. On the basis of the said statement he registered the case in their Police Station in Crime No. 15/2008 and issued the FIR as per Ex. P-10 and his signature is as per P-10(a). The statement produced by P.W.-7 is Ex. P-1, and P-1(d) is his signature. On the same day from 5.10 p.m. to 6.20 p.m. he visited the spot and the spot was shown by P.W.-5/Gopal and in the presence of P.W.-3 and CW-7 he verified the spot and prepared the spot mahazar as per Ex. P-3. From the spot, he has seized the blood stained mud and sample mud in a separate plastic container and also seized one slab stone, which is M.O. 1. The blood stained mud is M.O. 5 and sample mud is M.O. 6. On 19.02.2008, P.W.-1 appeared before the Police Station and produced the clothes, which are said to have been worn on the date of incident. He seized them in the presence of P.W.-9 and CW-8, they are one sleeves checks shirt having blood stains, one Sriuff colour pant having blood stains at the front side, one blue colour full sleeves baniyan having blood stains. They are M.O. s-2 to 4. The seizure mahazar is Ex. P-2 and P-2(c) is his signature. On 10.03.2008 he obtained Ex. P-6/wound certificate from the Star Hospital. Then he referred the stone to the doctor and sought his opinion. On 18.03.2008 doctor has given his opinion as per Ex. P-7. On 23.02.2008 he sent requisition to FSL Officer to examine the articles and to give the report. On 05.07.2008 he received the serology report as per Ex. P-13. On 05.07.2008 he has received the FSL report as per Ex. P-8. On 31.08.2008 he filed the charge sheet against the accused before the Court.

In the cross-examination by the learned counsel for the accused, P.W.-12 has deposed that on 03.02.2008 at 9.00 p.m. they received the memo from Star Hospital. When he was asked that on the next day itself there was no difficulty to record the statement of complainant, he deposed that when he went to take the statement, the doctor informed that he was not in a position to give the statement, hence, it was not possible to record the same. He has admitted as true that the said memo is not produced before the Court. He denied the suggestion that P.W.-7/Smgregowda had not at all went to Star Hospital on 05.02.2008. He denied the further suggestion that on 05.02.2008 he had not at all visited the spot nor prepared the panchanama in the presence of panch witnesses and he has not seized M.O. 1/Stone from the spot. From 03.02.2008 till the injured/P.W.-1 discharged from the hospital, there was no difficulty for him to visit the hospital and to seize M.Os. 2 to 4, he answered that as he did not feel it necessary, he has not done and he volunteered and deposed that thereafter, complainant appeared before the Police Station and produced the clothes. He denied the suggestion that for the purpose of this case he planted M.Os. 2 to 4. He has admitted as true that from 23.02.2008 till 05.07.2008, M.Os. 1 to 5 were in the FSL office. On 17.03.2008 he sent M.O. 1 to Star Hospital to get the opinion of the doctor. He has denied the suggestion that, he in collusion with the doctor created Exs. P-6 and P-7 for the purpose of this case. He has denied the suggestion that on 17.03.2008 M.O. 1 was not with him as per his say. He has denied the suggestion that no one was present at the time of conducting spot mahazar, while seizing M.Os. 1 to 5 and he has not recorded the statement of any of the witnesses.

P.W.-13/Suresh Gaonkar, Asst. Director, FSL, has deposed in his evidence that he subjected the objects having the blood stains so also the powder having the blood stains to serology examination in the first week of July 2008. The blood stains on item Nos. 1, 3, 4, 5 and 6 are the human blood and the blood stains on item Nos. 4, 5 and 6 is ''O'' group blood. As the blood stains on item Nos. 1 and 3 were disintegrated. He was not able to find out the blood group. Accordingly, he has submitted his report through his superior officers on 05.07.2008. The said report is Ex. P-13 and P-13(b) is his signature. The contents are true. He has seen M.Os.-1 to 6 before the Court and he has examined the blood stains on those items and then, submitted his report.

The first and foremost contention of the defence that there is a delay in lodging the complaint and hence, the prosecution case cannot be accepted at all. It is no doubt true, the date of offence, according to the prosecution is 02.02.2008 at about 8.00 p.m. in Lalbagh road nearby the office of P.W.-5/Gopal.

P.W.-1/Complainant in the complaint itself has made it clear that his employer P.W.-5/Gopal admitted him to St. John''s Hospital and as the bed was not available in the said hospital, he was taken to the Star Hospital at HSR Layout and from that date he was not in a position to speak, hence, he is giving his statement on 05.02.2008. The complaint Ex. P-1 also shows that it was recorded in the hospital itself in the presence of doctor.

Looking to Ex. P-1/complaint, on the top of the complaint it is mentioned the patient is now fit to give the statement and it is signed by the doctor of the Star Hospital on 05.02.2008. Looking to the evidence of P.W.-7/Smgregowda, Head Constable, he has deposed in his evidence that on 05.02.2008 when he was on duty, he received one memo from the Star Hospital and accordingly, he went to the hospital and recorded the statement of the complainant. When he recorded the statement, doctor was also present and he has also taken the signature of the doctor to the statement.

In the evidence of P.W.-10/doctor, it has come on record that Police had come to his hospital for recording the statement of injured on 05.02.2008, first they enquired with him about the fitness of the injured to give the statement and he had certified of his fitness to give the statement and to that effect he affixed his signature on Ex. P-1 as per P-1(d) and then the Police recorded the statement of injured in his presence. In the cross-examination, doctor deposed that when the patient brought to his hospital there was profused bleeding on his face and he was conscious and he was in a speaking condition.

Looking to all these materials placed on record, the fact that, immediately after the incident, P.W.-1 was taken to the hospital and admitted in the hospital has been established by the prosecution. Looking to the endorsement made in the complaint/Ex. P-1 by the doctor that, now the patient is in fit condition to give statement also shows that delay in lodging the complaint is not with any malafide intention to book a false case against the accused person and it was because of the condition of P.W.-1 and hence, the complaint was not lodged immediately on the date of incident. Therefore, the case of the prosecution cannot be rejected only on the ground that there was delay in lodging the complaint, when the delay has been properly explained by the prosecution with cogent and acceptable materials.

With regard to the assault made by the accused on the complainant is concerned, the complainant himself is an injured witness and the injuries sustained by the complainant has been established by the oral evidence of P.W.-1 so also the evidence of the Dr. Chandan/P.W.-10, who issued the injury certificate as per Ex. P-6, which shows that the complainant has sustained fracture injury of the nasal bone and other parts on the face as mentioned in Ex. P-6. It is also mentioned by the doctor in the said certificate that the said injuries are grievous in nature.

Looking to the document Ex. P-7, the opinion of the doctor after examining M.O. 1/stone would show that there is possibility of P.W.-1 sustaining such injury with the assault by the material object M.O. 1. Therefore, the oral evidence of P.W.-1 and the doctor P.W.-10 so also the documentary evidence Exs. P-6 and P-7 makes it clear that the complainant sustained injury in the incident on 02.02.2008 by the assault made by the accused. There is nothing on record to disbelieve the evidence of the injured witness and nothing is brought on record by the defence to show that the accused has been falsely implicated in the said incident even though he has not caused injury to P.W.-1. Even the case of the prosecution is also supported by the evidence of P.W.-2/Ravi, who is the eyewitness to the incident. P.W. 2 has stated that about one year back at about 8.00 p.m., there was quarrel between the accused and the complainant and accused assaulted the complainant with stone on the face and there was a bleeding and there was broad light when the incident was taken place. It is no doubt true that in the cross-examination though P.W. 2 has stated that there was darkness, but in the re-examination by the PP, again he has stated that there was light at the said place. Therefore, the evidence of P.W.-2/Ravi also supports the case of the prosecution that it is the accused, who picked up quarrel with the complainant and assaulted him with the stone.

The Investigating Officer who conducted the spot mahazar-Ex. P.3 on 05.02.2008 has seized M.O. 1/Stone from the spot in the presence of panch witnesses. He has also seized blood stained mud and sample mud as per M.Os.-5 and 6.

P.W.-5/Gopal is the person, who has shown the spot to the Police. It is also the case of prosecution that P.W.-3/Sharavana the independent witness was said to be present at the time of conducting the spot mahazar as per Ex. P-3. Both the witnesses have consistently deposed that, in their presence, P.W.-12/R. Nagraj, PSI, conducted the spot mahazar proceedings and seized M.O. 1/Stone and M.Os.-5 and 6 i.e., blood stained mud and sample mud from the spot and drawn the mahazar as per Ex. P-3.

I have perused Ex. P-3 spot mahazar, which is signed by P.W.-5/Gopal and P.W.-3/Sharavana. P.W.-3 has also spoken in his examination in chief about the time of conducting the mahazar i.e., in between 5.00 p.m. and 6.00 p.m. So also P.W.-12 Police Sub Inspector has also deposed about conducting the spot mahazar as per Ex. P-3 in the presence of P.W.-5/Gopal and P.W.-3/Sharavana and seizing M.O. s i.e., blood stained stone, blood stained mud and sample mud from the spot. It is no doubt true that P.W.-3/Sharvana and P.W.-5/Gopal have deposed in the cross-examination that on the next day of the incident, Police came to the spot and P.W.-5/Gopal shown the spot to the Police and the spot mahazar was conducted in the presence of PWs-3 and 5. The incident took place on 02.02.2008. However, after 1 1/2 year, the evidence of witnesses were recorded. Therefore, the witnesses may not have recollected the date and they have simply stated that on the next day of incident, police came to the spot.

But perusing Ex. P-3/Spot mahazar, it is dated 05.02.2008 i.e. on the date when the complaint was registered, the spot mahazar was conducted on the same day. P.W.-12 has also consistently deposed about the date of spot mahazar. Therefore, all these materials clearly show about conducting the spot mahazar as per Ex. P-3 and seizing M.O. 1 blood stained stone, M.O. 5 blood stained mud and M.O. 6 sample mud. The blood stained clothes were seized by the Police, when the complainant came to the Police Station and produced the said clothes, and the same was seized under Ex. P-2 seizure mahazar. Regarding the seizure of the blood stained clothes of P.W.-1/Complainant, the witnesses P.W.-9/Annayyappa and P.W. 8/Snnivas, have not supported the prosecution case with regards to seizure mahazar Ex. P-2 but P.W.-12/PSI has deposed about conducting the said mahazar and seizing of the blood stained clothes M.Os.-2 to 4 in the presence of P.W.-9 and P.W-8.

The Police Inspector-P.W.-12 has deposed in his evidence that the injured came to the Police Station and produced the blood stained clothes M.Os. 2, 3 and 4 and he has seized the said clothes under the seizure mahazar Ex. P-2. I have perused Ex. P-2. It bears the signature of P.W.-9 as per P-2(b). When the Investigating Officer has deposed about the seizure of blood stained clothes under Ex. P-2 mahazar and during the course of cross-examination, nothing has been elicited from his mouth so as to disbelieve his version about the said mahazar, the evidence of P.W.-12 cannot be rejected only on the ground that he is a Police Officer. In the Cross-examination of P.W.-12, nothing has been brought on record that he was having any sort of enmity towards the accused, and because of that reason and in order to falsely implicate the accused, he has created the false panchnama Ex. P-2 and planted the material objects as per M.Os. 2 to 4. Hence, I am of the opinion that the prosecution has established the seizure of blood stained clothes M.Os. 2 to 4 belonging to the complainant, which were said to have been worn at the time of the incident.

It has come on record in the evidence of P.W.-12/Investigating Officer that he has referred M.Os. 1 to 6 to FSL for examination and report, and FSL report was also received wherein it is stated that item at Sl. No. 2 i.e., sample mud was not stained with blood and items at Sl. Nos. 1 and 3 to 6 were stained with blood. The oral evidence of P.W.-13 the Asst. Director of FSL also shows that the blood stained items at SL. Nos. 1, 3, 4, 5 and 6 are the human blood and the blood on items at Sl. Nos. 4, 5 and 6 i.e., 1 shirt, 1 pant and 1 baniyan were having blood stains of ''O'' group and in that connection, the report as per Ex. P-13 was also issued. So, all these materials clearly show that the stone/M.O. 1 was used in committing the alleged offences and causing the bleeding injury on P.W.-1/complainant by the accused.

Looking to the nature of the injuries, they are grievous in nature. The doctor P.W.-10 has deposed that as per the X-ray report and CT-Scan report, the injuries are grievous in nature and as there was a fractured injury of the nasal bone, they clearly show the intention of the accused to commit the murder of the complainant.

I have perused the judgment relied upon by the learned counsel for accused of the High Court of Orissa dated 22.02.1995 in the case of Ashok Kumar Pradhan v. State of Orissa. The facts and circumstances involved in the said decision and the facts and circumstances in the case on hand are not one and the same, and the decision cited supra will not come to the aid and assistance of the defence of the accused. Therefore, the prosecution has established its case beyond all reasonable doubt that the accused made an attempt to commit the murder of the complainant and thereby committed the offence punishable under Section 307 of IPC.

The Trial Court has rightly appreciated the materials on record i.e., both oral and documentary, and rightly convicted the accused. No illegality has been committed by the Trial Court nor there is any perverse or capricious view taken by the Trial Court. There are no valid and justifiable grounds for this Court to interfere with the impugned judgment and order of conviction so as to reverse the findings of the Trial Court.

I have perused the sentence imposed by the Trial Court. The said sentence is reasonable and appropriate. There is no merit in the appeal. Accordingly, it is dismissed. The judgment and order of conviction and sentence dated 10.06.2010/01.07.2010 passed by the Additional Sessions Judge and Presiding Officer, Fast Track Court-12, Bengaluru, in S.C. No. 1020/2008 is hereby confirmed.