Mahiboob vs The State of Karnataka

K.N. Phaneendra, J.—The appellant is the accused in S.C. No. 55/2006 on the file of II Addl. Sessions Judge & Special Judge, Bijapur.

The appellant challenged the judgment and sentence passed in the said case dated : 26-2-2010 in convicting him for the offences punishable U/Sec. 326 IPC and sentencing him to undergo rigorous imprisonment for a period of 3-years and to pay fine of Rs. 10,000/- with a default clause to undergo rigorous imprisonment for one month.

The brief factual matrix of the case emanate from the records are that:-

The State through Dy. S.P., Bijapur, laid a charge sheet against the accused for the offences punishable U/Sec. 324 , 326 , 504 IPC and also U/Sec. 3(2)(v) of SC/ST Prevention of Atrocities Act, 1987. A person by name Ramesh Helavar of Bijapur lodged a First Information Report as per Ex. P-1 stating that on 22-10-2006 incident happened at about 3-30 a.m., in front of a clinic and shop situated near the house of a person by name Ibrahim Jamadar at Afzalpur Takke village. Earlier there was a money transaction between the accused and the said complainant. When the complainant asked for return of the said money on the above said date and time, the accused got enraged himself and voluntarily assaulted the complainant Ramesh Helavar and also another witness by name Shivu Karajol, who came to rescue the complainant and thereby caused severe injuries on the complainant and as well as said witnesses. During that time, it is also alleged that the accused abused the complainant and his friend with filthy language particularly referring to the caste of the complainant and to the said witness Shivu Karajol. Further, the injuries caused on the complainant and his friend were resulted in fractures. Therefore, the police have registered the case under the above said provisions and after investigation laid the charge sheet against the accused.

After securing the presence of the accused, the trial Court has framed charges against him for the above said offences and tried him and ultimately after appreciation of oral and documentary evidence on record, concluded that the accused was guilty of the offence punishable U/Sec. 326 IPC. Further, the trial Court has acquitted the accused for the remaining offences except U/Sec. 324 and 326 of IPC. As the provision U/Sec. 324 IPC is minor offence merges with provision U/Sec. 326 IPC and therefore no separate sentence was passed as far as for the offence U/Sec. 324 IPC is concerned.

The prosecution in order to prove the guilt of the accused, examined 11-witnesses P.Ws.-1 to 11 and got marked 12-documents Ex. P-1 to Ex. P-12 and one material object, a club marked at MO-1. The accused was also examined U/Sec. 313 of Cr.P.C., and his answers have been recorded. The accused did not choose to lead any defence evidence on his side. Therefore, after hearing, the trial Court has rendered the judgment, which is impugned under this appeal.

PW-1 and PW-3 are the injured eye witnesses to the incident. PW-2 Kamalabai Helavar is the mother of the complainant. Her evidence is not so relevant. Nevertheless, immediately after the incident, she came to know about the incident and she rushed to the incident spot and she saw the complainant i.e. her son and one Shivu Karajol were lying on the ground having sustained bleeding injuries. Immediately, they shifted the injured persons to Bijapur Government hospital. This witness though cross-examined, but shifting of the injured persons to the hospital is not disputed during the course of cross examination. It is suggested that when she went there, the complainant and Shivu Karajol were lying on the ground, they were not in a position to speak. This clearly indicates that immediately after the incident, this witness has seen the injured persons and shifted them to the hospital. PW-4 one Shivachandra Dhale is the Tahasildar, who issued caste certificates of the complainant, his friend Shivu Karajol and so also of the accused as per Ex. P-2 to Ex. P-4. For the purpose of disposing off this appeal, the said evidence and documents are not relevant. PW-5 Ibrahimsab Jamadar, PW-6 Gundappa Dhandaragi and PW-7 Babu Helavar are examined before the Court as eye witnesses to the incident. Even the complainant has also stated about their presence. But these three witnesses turned totally hostile to the prosecution and they never supported the case to any extent. Though the learned public prosecutor in the cross examination suggested the statement made by them before the police but they denied even having given any statement before the police.

PW-8 is the important witness Dr. Tilad Rubina, who examined the injured complainant and also PW-3 Shivu Karjol and issued Ex. P-8 and Ex. P-9, which are the wound certificates of the injured persons. PW-9 Davalappa Chalawadi is the witness for Ex. P-10 the spot panchanama, who also turned hostile, not supported the case of the prosecution. PW-10 Chandrakant Nandareddy, is the person who deposed before the Court that on the date of the incident i.e. on 22-10-2006 he was working as PSI of Bijapur Rural Police. He received MLC from the Government Hospital, Bijapur at 9-00 a.m., and immediately at 9-30 a.m., he went to the hospital and he recorded the statements of the injured, came back to the police station and registered a Crime at 10-30 a.m., as per Ex. P-1. He prepared the FIR and sent the same to the Court as per Ex. P-11. PW-11 is the Dy. S.P., who was working at Bijapur Rural Circle and he conducted the investigation and after collecting the materials, he appears to have filed the charge sheet.

On going through the evidence of the witnesses, what remains for the consideration of this Court is that whether the trial Court has committed any serious error in believing the version of the injured eye witnesses and the Doctor and also the necessary documents in this regard. Of course, the eye witnesses examined by the prosecution have been turned hostile to the prosecution. But the evidence of P.Ws.-1 and 3 who have categorically deposed before the Court regarding happening of the incident and also the presence of the accused and the quarrel took place between them and that the accused has assaulted them with a club. PW-1 has categorically stated that the accused on that date has assaulted him with a club on his mandible and he sustained severe injuries on his head and as well as on his mandible. He lost his consciousness. He also stated that accused has assaulted PW-3 Shivu Karajol on his right hand because of that he sustained fracture to his hand and also abused him with filthy language etc. PW-3 has reiterated the same and he also categorically stated the assault made by the accused and the injuries sustained by the complainant and himself.

The cross examination of these two witnesses, if it is perused meticulously, absolutely there is no materials to controvert the evidence of the witnesses as stated by them in their examination in chief. The entire cross examination is nothing but suggestions to the witnesses denying the case of the prosecution and nothing more than that. On the other hand, the defence has not come out with any specific defence as to why the accused complainant and PW-3 have to falsely implicate him into the quarrel and to screen real culprits. On the other hand, if they have sustained the injuries in any other incident, why they have chosen the accused as culprit without any reasons. Though it is suggested that due to ill-will and hatred, P.Ws.-1 and 3 have implicated the accused but such suggestion has not been substantiated by any materials on record. Therefore, looking to the examination in chief and cross examination of these witnesses, there is nothing placed before the Court to dis-believe their version. Moreover, immediately after the incident, they went to the hospital, the information was sent to the mother of the complainant PW-2 who came to the spot and saw the injured person on the spot itself and in fact she has stated that she shifted the injured persons to the hospital. The injury certificates produced before the Court at Ex. P-8 and Ex. P-9 also corroborates the evidence of the injured persons and Ex. P-2 shows that the injured persons had gone to the hospital at 6-00 a.m. with the history of assault. In this background, the evidence of the Doctor also play a dominant role.

PW-8 Dr. Tilad Rubina has categorically stated that the injured Ramesh Helavar PW-1 had sustained bleeding from mouth and x-ray of the skull bone was taken in X-Ray 7575/22/10/06. She gave the information that there was no fracture of skull bone but there was a fracture of mandible. Therefore, she gave the information that the injury No. 1 was simple in nature and injury No. 2 was grievous in nature. She also disclosed that on the same day she also examined another injured witness by name Shivu Karajol at 6-00 a.m. and she stated that he has suffered one cut lacerated wound on occipital region about 5 X 4 cms, swelling of left wrist joint and therefore she referred the injured for x-ray and after seeing the x-ray No. 7962/8/11/06 of left forearm and x-ray No. 7574/22/10/06 of left forearm and skull AP, she found that there was fracture of shaft of radius and ulna and fracture of middle 1/3 shaft of left radius and ulna with displacement and no fracture of skull. She gave the opinion that injury Nos. 1 and 2 are grievous in nature and injury No. 3 was simple in nature. The doctor certificate at Ex. P-8 and Ex. P-9 marked before this Court also fully corroborates the evidence of P.Ws.-1 to 3 that immediately after the incident, the injured persons were shifted to the hospital. Looking to the above said circumstances, it is clear that there is no reason for P.Ws.-1 and 3 to falsely implicate the accused, if no such incident had happened. Merely because the eye witnesses turned hostile to the prosecution, it cannot be said that the evidence of the injured eye witnesses should be dis-believed. Of course, if in the course of cross examination, if it is elicited that a false implication has been made or else if any doubt is created in the mind of the Court with regard to the credibility of the evidence of the complainant and injured eye witnesses, then only the Court can come to any conclusion that because of the hostility of the eye witnesses and with regard to the credibility of the injured witnesses, the Court would have taken a different view. But, that is not the case on hand. Therefore, I do not find any strong reasons to interfere with the judgment passed by the trial Court.

The learned counsel for the petitioner has contended by citing ruling of this Court reported in State Vs. Sheenappa Gowda and Others, , wherein this Court has held that:

"where the accused cannot be convicted for commission of offence U/Sec. 326 R/w 149 of the Code in respect of the injuries sustained by PW-4. Because the prosecution has failed to prove the allegations of grievous injuries sustained by PW-4. In view of non production of x-ray, confirmation of fracture opined by the doctor in medical examination, the accused as is said to be committed offence U/Sec. 325 . Under such circumstances, the accused cannot be convicted".

On careful perusal of the above said judgment, at para-11, it is observed that in the said case the evidence of PW-1 would only show that there was injury as described in the wound certificate i.e. to say only lacerated wounds and abrasions as mentioned in the wound certificate Ex. P-2 when PW-1 Doctor suspected fracture, he ought to have referred the injured PW-4 for taking the x-ray to confirm his finding that there was a fracture. It is now well settled that unless the prosecution produces the confirmation of fracture opinion by the doctor clinically, it cannot be said that the accused have caused grievous injuries of fracture.

The above said observations, if it is meticulously considered with the facts of this case, it is not that the Doctor has simply given the opinion. In the above said case, the Doctor has not at all referred the injured persons for x-ray and after seeing the x-ray report has given any injury certificate. The judgment clearly goes to show that the patients were examined only clinically and not examined after x-ray being taken. But in this particular case, the evidence of PW-8, the doctor with reference to the injury certificate Ex. P-8 and Ex. P-9 and those documents clearly disclose that the Doctor has not only clinically examined the injured but also referred the injured persons for x-ray and thereafter looking to the x-ray report, confirming herself that the injured persons have suffered such fractures, gave the opinion as per Ex. P-8 and Ex. P-9. Therefore, the observations made in the above said ruling is not exactly applicable in a strait jacket manner, to the facts and circumstances of this case. Under the above said circumstances, I am of the opinion that the trial Court has not at all committed any mistake in arriving at a conclusion of convicting the accused for the offence punishable U/Sec. 326 and 324 of IPC beyond all reasonable doubt.

As far as sentence is concerned, the provisions U/Sec. 326 IPC is punishable with rigorous imprisonment for 10-years and up to life. Considering the age of the accused and the surrounding circumstances, the trial Court has awarded a rigorous imprisonment of 3-years and a fine of Rs. 10,000/- with default clause of one month. The said sentence passed by the trial Court is not exorbitant and deserves any modification. Therefore, with the above said observations, I find no material to interfere with the judgment of conviction and sentence passed by the trial Court and same deserves to be confirmed. Hence, I proceed to pass the following:

ORDER

The appeal is dismissed.