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Judgment
The Judgment and Order dated 30.10.2009 passed by the Fast Track Court-XV, Bangalore in S.C. No. 287/2008 is the subject matter of these two appeals. By the impugned Judgment and Order, the trial Court has convicted Accused Nos. 1 to 4 for the offences under Sections 324, 506 and 307 of IPC r/w Section 34 of IPC; they are sentenced to undergo imprisonment for two years for the offence u/s 307 of IPC and they are also imposed with certain amount of fine.
Criminal Appeal No. 684/2010 is filed by the State praying for enhancement of sentence. Criminal Appeal No. 928/2009 is filed for acquittal of the accused.
Case of the prosecution in brief is that at about 9 p.m. on 15.7.2007, while PW. 3 was coming back to his house after attending the death ceremony of certain person, he was waylaid by Accused No. 1 and was hits PW. 2 being the relative of PW. 3 having come to know about the incident in question, went to the spot immediately and questioned Accused No. 1 as to why he assaulted PW. 3; being enraged by such action of PW. 2, Accused No. 1 took iron rod and assaulted on the head of PW. 2 and consequent upon which PW. 2 sustained grievous injury on his head; Other accused also assaulted and hit PWs. 2 and 3; The incident is witnessed by PW. 1, the father of PW. 2; However PW. 1 lodged the first information before Yelahanka Police Station at 8.30 a.m. on 16.7.2007 i.e., on the next date of the incident. The same was received by the Inspector of Police, Yelhanka Police Station (PW. 11), who registered Crime No. 254/2009. PW. 11 sent the first information report as per Ex. P6 to the jurisdictional Court. After completion of investigation, PW. 11 laid the charge sheet against all the accused for the offences under Sections 324, 506 and 307 r/w Section 34 of IPC.
In order to prove its case, the prosecution in all examined 14 witnesses and got marked eight documents and 2 Material Objects. On behalf of the defence, no witness is examined. As aforementioned, the trial Court convicted all the accused for the offences under Sections 324, 506 and 307 of IPC r/w Section 34 of IPC and sentenced them accordingly.
Learned Government Pleader for the State and Sri Chandrashekar, learned advocate for the accused argued supporting their respective cases. They have taken us through the material on record including the judgment of the Court below.
PW. 1 is the eye witness to the incident; He is the father of the injured PW. 2; PW. 1 lodged the first information as per Ex. P1 before the Inspector of Police-PW. 11; Through him, Mos. 1 and 2 (the weapons used for commission of the offence) are marked. PW. 3 is the injured eye witness and he was initially kicked by Accused No. 1; PW. 2 intervened and he was assaulted by all the accused; He is the eye witness to the incident in question. PW. 4 though eye-witness to the incident, has partly supported the case of the prosecution. PW. 5 is the mother of PW. 2 and she came to the spot after the incident. PW. 6 is the ASI and he got the medico legal intimation from the hospital; He handed over such information to the Station House Officer of the Police Station i.e., PW. 8; PW. 8 had in turn handed over the said information to the Inspector PW. 11. PW. 7 is the Police Constable; He apprehended Accused Nos. 1 and 2. PW. 9 is the eye witness to the incident and he has turned hostile. PW. 10 is the witness for scene of offence mahazar-Ex. P2; Mos. 1 and 2 were seized articles from the spot. PW. 11 is the Investigating Officer; He is the person who registered the Crime No. 254/2007 on the basis of Ex. P1; He laid the charge sheet after completion of investigation. PW. 12 is the doctor who treated PW. 2 at Mallige Nursing Home; Ex. P7 is the wound certificate. PW. 13 is the witness for scene of offence mahazar-Ex. P2 and he has turned hostile. PW. 14 is another eye witness; He has also turned hostile.
The important witnesses in the matter on hand are PWs. 1, 2 and 3 and the doctor PW. 12. Before proceeding to the versions of eye witnesses, it would be relevant to note the evidence of the doctor who treated PW. 2. The wound certificate Ex. P7 pertaining to PW. 2 reveals that injury Nos. 1 and 4 are grievous in nature and injury Nos. 2 and 3 are simple in nature. Same is the evidence of PW. 12 (doctor) before the Court. In the cross-examination, PW. 12 admits that he has opined that injury Nos. 1 and 4 are grievous in nature. However he has not shown any reason for coming to such conclusion. He also admits in the cross-examination that he has mentioned as to the nature of the injuries in the case sheet maintained by him. But the case sheet is not produced before the Court by the prosecution. Nothing is there on record to show that such case sheet was obtained from the hospital for production before the Court. It is not elicited from the doctor as to why he has opined that injury Nos. 1 and 4 are grievous in nature. Injury Nos. 1 and 4 are not fractures sustained by PW. 2. In this context, learned Government Pleader argues that the injuries may fall under clause-eighthly of Section 320 of IPC. We are unable to persuade ourselves to agree with such submission inasmuch as there is nothing on record to show that the hurt sustained by PW. 2 endangered his life or he is unable to follow his ordinary pursuits. Admittedly, the injured was in the hospital for seven days. So also there is nothing on record to show that during the said period, PW. 2 has suffered severe body pain or was unable to follow his ordinary pursuits. In view of same, the injury Nos. 1 and 4 sustained by PW. 2 may not fall under clause eighthly of Section 320 of IPC. If it is so, it is clear that the injuries sustained by PW. 2 are to be categorized as simple injuries.
As aforementioned, according to the case of the prosecution, PW. 1 is the eye witness to the incident. He is the father of the injured PW. 2. But he categorically admits in the cross-examination that he has not seen the attack on his son and that he went to the spot later. This admission of PW. 1 takes away the case of the prosecution that PW. 1 is the eye witness to the incident. Therefore it is clear that he is not the eye witness to the incident. He has filed the first information as if he is the eye witness to the incident.
In the cross-examination, PW. 1 has further admitted that there was political rivalry between his son (PW. 2) and PW. 3 on one side and the accused on the other; PWs. 2 and 3 are belonging to Janatha Dal political party, whereas accused are belonging to Congress political party; at the time of the incident, there was no electricity supply in the area and that it was pitch-dark. He further admits that PW. 2 is in the habit of extracting ''hafta'' from the public and consequently there are number of cases filed against him in various Police Stations; So also he has got number of enemies; during relevant point of time, PWs. 2 and 3 had attended death ceremony of father of Jakkur Councillor viz., Shankarappa and during such death ceremony, there was supply of alcoholic drinks; PWs. 2 and 3 had drunk fully and they were not able to stand and walk properly. PW. 1 has further admitted that PW. 2 did not have any permanent job. From the aforementioned evidence of PW. 1, it is clear that PW. 1 is not the eye witness to the incident. It is further clear that PWs. 2 and 3 are waywards. They did not have any avocation in life and they were extracting "hafta'' from the public at large and consequently number of cases are filed against PW. 2 and he has number of enemies. It is also clear that the incident has taken place in the pitch-darkness inasmuch as there was no electricity supply in the area during the relevant time.
PW. 2, the injured has deposed that Accused No. 1 was hitting PW. 3 at about 9 p.m. on the date of the incident i.e., on 15.7.2007 and he intervened and asked Accused No. 1 as to why he is hitting PW. 3; Being enraged, Accused No. 1 assaulted on the head of PW. 2 with the rod. PW. 2 has also alleged that other accused also assaulted him and PW. 3 repeatedly. Though PW. 2 was cross-examined at length, his evidence is not shaken insofar as assault on him by Accused No. 1 is concerned.
The evidence of PW. 2 insofar as it relates to assault on him by Accused No. 1 is concerned, is supported by the evidence of PW. 3. PW. 3 also deposed that when he was hit by Accused No. 1, PW. 2 intervened; being enraged, Accused No. 1 assaulted on the head and back of PW. 2 with iron rod; other accused also assaulted PW. 2.
Be that as it may. We find that the evidence of PWs. 2 and 3 insofar as it relates to complicity of Accused Nos. 2 to 4 is concerned, is full of contradictions and omissions. There are number of improvements with regard to the complicity of Accused No. 2 to 4 and the evidence in that regard may not be sufficient to convict them. The evidence does not inspire confidence insofar as it relates to assault on PW. 3 or PW. 2 by Accused Nos. 2 to 4 are concerned. But the material on record, more particularly the evidence of PW. 2 is consistent, cogent and reliable insofar as assault by Accused No. 1 on PW. 2 is concerned. The same is supported by the evidence of the doctor who treated the injured PW. 2. Therefore we conclude that the prosecution has proved its case insofar as complicity of Accused No. 1 is concerned with regard to assault on PW. 2 only.
We have gone through the judgment of the trial Court. It has not assigned any reasons muchless valid reasons for coming to the conclusion. The trial court has proceeded casually without applying its mind to the facts of the case. Except narrating the versions of the prosecution witnesses, the trial Court has not assigned adequate reasons to conclude as to why accused should be convicted for the offences under Sections 307 and 506 of IPC. Had there been an intention of the accused to do away the life of either PW. 2 or PW. 3, they would not have left them free, that too in the pitch-darkness, particularly when PWs. 2 and 3 were fully drunk and unarmed. On the other hand, the accused were armed. Therefore in our considered opinion, there was no intention on the part of the accused to take away the life of either PW. 2 or PW. 3. In view of the same, the Judgment and Order of the trial Court needs to be interfered with.
Having regard to the totality of facts and circumstances and as PW. 2 has sustained four simple injuries because of the assault on him with the iron rod by Accused No. 1, it may be safely concluded that Accused No. 1 has committed the offence u/s 324 of IPC. No other offence is proved against him and other accused. Further, the records disclose that Accused No. 1 has already undergone imprisonment for three months. We feel that the punishment already undergone by Accused No. 1 is sufficient punishment for the crime which he has committed.
In view of the above, we pass the following:
ORDER
The Judgment and Order of conviction passed by the trial Court stands set aside.
Accused No. 1-Lokesh is convicted for the offence u/s 324 of IPC and sentenced to undergo imprisonment for the period already undergone.
Accused No. 1 is sentenced to pay fine of Rs. 20,000/-(Rupees twenty thousand only). In default of payment of fine by Accused No. 1, he shall undergo further imprisonment for six months. The amount of fine, if deposited by Accused No. 1 shall vest with the State.
Accused No. 2-Kumar, Accused No. 3-Premkumar and Accused No. 4-Muniraju are acquitted of all the charges levelled against them. Accused No. 1-Lokesh is acquitted for the offences punishable under Sections 307 and 506 of IPC.
Bail bonds of Accused Nos. 1 to 4 stand cancelled.
Accordingly, Criminal Appeal No. 684/2010 stands dismissed and Criminal Appeal No. 928/2009 is allowed in part.