M. Venkappa Poojary vs State of Karnataka

A.S. Pachhapure, J.—The appellant has challenged his conviction and sentence for the offence punishable under Sections 504 and 326 IPC on a trial held by Fast Track Court, Mangalore. The facts relevant for the purpose of this appeal are as under:

Babu Poojary (deceased) is the father of appellant.'' There was a land dispute between appellant and the deceased. That on 27.02.2005 at about 10.00 a.m., Babu Poojary went to the land of appellant alongwith his daughter Rohini (PW 1) and grandson Mohana (PW 2) and at that time when he was plucking unriped mangoes from a tree, the appellant objected it and abused him in vulgar language and took out Eesumullu (MO1), an agricultural implement and assaulted his father, thereby Babu Poojary sustained injuries and he was taken to the hospital for treatment. PW 6 Dr. Nasrath examined the injured Babu Poojary and treated for the injuries and advised to obtain x-ray as the x-ray machine in the hospital was not in working condition and against medical advice, he went back to the house. On the next day, he got heart attack and by the time he was brought to the hospital, he was declared dead. A complaint (Ex. P1) of this incident was submitted by PW 1 on the next day in the morning before death.

During the investigation, spot mahazar (Ex. P2) was held in the presence of attesting witnesses and the statements were recorded. After the death of Babu Poojary (injured) due to heart attack, inquest was held on the body of deceased and the clothes (Mos. 2 to 4) were seized under mahazar Ex. P3. Eesumullu (MO1) which was on the scene of occurrence was seized. At the time of soot mahazar, blood stained mud (MO5), unstained mud (MO6) were also seized. The seized articles were sent to the opinion of expert and report (Ex. P11) was secured. RTC extracts (Exs. P9 and 10) of disputed land were also secured. On completion of investigation, chargesheet was laid against the accused for the charge u/s 302 IPC.

In the course of trial, prosecution examined PWs. 1 to 12, got marked documents Exs. P1 to P16 and Mos. 1 to 8. Statement of the accused was recorded u/s 313 Cr.P.C. No defence evidence was led, but got marked Ex. D1-the contradiction in the evidence of PW 2. The Trial Court after hearing the counsel for parties and on appreciation of the material on record, convicted the appellant for the charge under Sections 504 and 326 IPC and ordered him to undergo rigorous imprisonment for 3 years and to pay fine of Rs. 10,000/- for the offence u/s 326 IPC with default sentence and lesser sentence was awarded for the offence u/s 504 IPC. Aggrieved by the conviction and sentence, the present appeal is filed.

I have heard learned Counsel for the appellant and also learned High Court Government Pleader.

The point that arises for my consideration is:

Whether the appellant has made out any grounds to warrant interference in the conviction and sentence ordered by the Trial Court for the offence under Sections 504 and 326 IPC?

Learned Counsel for the appellant would contend that the deceased who is the father of appellant had committed an act of trespass by entering into the land of appellant and in the scuffle he fell down and he has sustained injuries. He submits that there was no assault and the injuries are not due to any such assault, therefore, he submits that conviction and sentence ordered by the Trial Court is erroneous and illegal. He also contends that weapon used is not a dangerous weapon and hence, conviction u/s 326 IPC is improper.

On the other hand, learned High Court Government Pleader supporting the judgment and order of the Trial Court contends that the material placed on record is sufficient to confirm the conviction and that the appellant has not made out any grounds to warrant interference.

The evidence of injured is not available for the reason that on the next day, he died due to heart attack. Therefore, only the evidence of PWs. 1 and 2 who are the daughter and grandson of deceased are available for appreciation. As could be seen from the evidence of these two witnesses, on the date of incident in between 10.00 a.m. to 11.00 a.m. Babu Poojary, the deceased had come to the land of appellant alongwith PWs. 1 and 2 and was plucking unriped mangoes, it is at that juncture, the appellant came to the place and abused the deceased in vulgar and insulting language and after taking out MO1-the agricultural implement which looks like a spade said to have assaulted his father. The presence of appellant at the spot is not in dispute as there is specific suggestion to the witnesses that in the scuffle between the appellant and his father, the injured fell to the ground and sustained injuries. So the only question would be as to whether he sustained injuries due to the assault or just by fall. It is the specific version of PWs. 1 and 2 that the appellant took MO1 and after uttering insulting words to his father assaulted with MO1 wherein his father sustained the injuries.

PW 6-Dr. Nasrath examined the injured at about 1.00 p.m. on the same day. The injured was brought to the hospital with the history of assault by his son Venkappa Poojary (appellant) and the following injuries were found on the person:

a) small lacerated wound on left thigh measuring 1 x 1/2 x 1/2 cms;

b) contusion over the sternum measuring 1 1/2 x 1 inch, tenderness present;

c) superficial abrasion over right forearm 1x1 inch; and

d) right mid finger sup-abrasion, bleeding present.

PW 6 further states that as the injured refused to got admitted in the hospital, he was advised to obtain x-ray but he did not bring the same as he collapsed due to heart attack on the next day. After the death of injured, inquest was held.

PW 4-Dr. Pradeep Kumar held autopsy and aforesaid injuries were also sated by PW 4 in the postmortem report (Ex. P4). On dissection of the dead body, he found-Fracture of sternum at the level of maniberium sterni and this injury corresponds to external injury No. 1. So, the evidence of PW 4 reveals that apart from 3 simple injuries sustained, the deceased had also sustained fracture of sternum, thereby the injured was found having sustained grievous injuries. Though in the cross examination, it is suggested to the doctor that such injury could be possible in case if a person falls on the ground, in view of the positive evidence of PWs. 1 and 2 about the assault by MO1-an agricultural implement, it has to be held that injuries sustained were due to the assault and not by a fall. That apart, the injured himself while getting treatment from PW 6 had given the history of assault by his son-the appellant. This information was found in the medical records within 2 hours of the incident, therefore, the mere fact that the complaint was filed on the next day in the morning makes no difference for the reason that the delay has not been taken to disadvantage by the prosecution.

As could be seen from the spot mahazar (Ex. P2), MO1 was seized under said mahazar and MO1 an agricultural implement with a fork like iron instrument at the end with handles which was measuring about 42 inches at length. If a assault is done by the instrument MO1, it is possible to take the life of a person. Therefore, this instrument which is used as a weapon by the appellant has to be termed as a dangerous weapon. Therefore, the material placed on record is sufficient to conclude that the appellant has committed the offence punishable u/s 326 IPC.

PW 3-Jinnappa Poojary is the attesting witness for spot mahazar (Ex. P2). PW 5-Shashikala is the doctor who examined the accused and blood samples of accused was taken. The seized articles i.e., clothes on the body of deceased, the weapon etc. were sent for the opinion of expert and the report (Ex. P11) was secured. It reveals that clothes were stained with blood and so also the stained weapon revealed the stains of human blood. Anyhow, the stains were insufficient to conclude the definite group of blood. The contents of Ex. P11 also support the version of prosecution with regard to incident of assault by MO1.

The scrutiny of material placed on record does not reveal any such grounds to warrant interference in the conviction ordered by the Trial Court. Considering the facts that deceased had gone to the land of appellant to pluck unriped mangoes, it appears that there was scuffle and at that time, appellant is said to have used the words which have been mentioned in the complaint (Ex. P1) and PW 1 has reiterated such words in the evidence which are insulting. But anyhow, it is relevant to note that the deceased was aged 85 years old and the bones will be brittle. Even due to simple assault, the fracture may occur. Taking into consideration this aspect and the fact that the deceased had gone to the land of appellant, reasonable sentence has to be awarded as the imprisonment of three years ordered by the Trial Court appears to be on the higher side. In the result, the appeal is allowed in part affirming the conviction of appellant for the charge u/s 504 IPC and the sentence thereon. The sentence for the offence u/s 326 IPC is modified. The appellant is ordered to undergo rigorous imprisonment for 1 1/2 years and to pay fine of Rs. 10,000/- in default to undergo simple imprisonment for 3 months.

Both the sentences shall run concurrently.

Appellant is entitled to set off u/s 428 Cr.P.C.

The Trial Court is directed to secure the presence of appellant to undergo the sentence.