Maruthi Bhimanna Wade vs State

Budihal R.B., J.—The Judgment and Order of conviction dated 21.12.2010 passed by the learned Prl. Sessions Judge, Bidar, in S.C.No. 11/2010 is called in question by the appellants in this appeal. By the said judgment, the learned trial Judge convicted the appellants/accused Nos. 1 and 2 for the offences punishable u/Sec.324 r/w 34 of IPC and sentenced both the accused for simple imprisonment for a period of six months and to pay fine of Rs. 5,000/-, in default of payment of fine, they shall undergo further simple imprisonment for a period of one month.

Brief facts of the prosecution case that on 26.12.2008 in the morning hours, complainant Sangappa was returning to his house carrying the fodder bundle on his head. As he was coming in front of the house of the accused, one dog came running and dashed against the bicycle which was parked in front of the house of the accused persons, as the bicycle fell down, the accused persons suspecting that it is the complainant who made the bicycle to fall down and therefore came out of their house and accused No. 1 assaulted the complainant with axe and accused No. 2 assaulted with stick. The accused were intended to commit the murder of complainant. Seeing this incident, one Venkat who is the nephew of the complainant came to the rescue. The accused also assaulted him with the same axe and stick inflicting injuries. It is also the case of the prosecution that one Jhareppa, Arjun and Maruti are the eye-witnesses to the incident. There was a dispute in between the complainant and also the accused persons in respect of the road. On the basis of the said allegations, on the complaint, case has been registered against the accused persons for the offences punishable u/Sec.307, 324 r/w 34 of IPC.

After conducting and completing the investigation, the Investigating Officer has filed charge-sheet against both the accused persons for the alleged offences.

The prosecution in order to prove its case, in all examined 12-witnesses as PWs-1 to 12 and produced 13-documents at Ex.P-1 to Ex.P-13, two material objects Mos-1 and 2. On the side of the defence, no witnesses examined and no documents got marked.

Heard the arguments of the learned counsel appearing for the appellants/accused and also the learned HCGP for the Respondent/State.

Learned counsel for the appellants, during the course of arguments, taken this Court through the entire materials and he made his submissions that even according to the complainant, there was an earlier dispute with regard to the road portion in between the complainant and also the accused persons. Hence, his contention that because of the earlier enmity, the appellants were falsely implicated in the case. The appellants have not committed any offence as alleged by the complainant. It is also his submission that looking to the evidence produced by the prosecution and more particularly the evidence of PWs-1 and 2 who were said to be injured eye-witnesses and PW-11, who is the daughter of the complainant, there is total inconsistency and also contradictions in the evidence of these three witnesses. He made submissions that the independent three eye witnesses have turned hostile and not supported the case of the prosecution. It is his contention that though in the evidence PW-2 Venkat, deposed before the trial Court that he has been assaulted by accused No. 2 with a stick on his elbow portion and caused injuries. Learned counsel for the appellants/accused submits that this is an improvement during the course of the trial and there is no such contention or the allegation or averment in the complaint Ex.P-1 by Sangappa. Hence he submitted that, so far as accused No. 2 is concerned, absolutely there is no material to show that he was also involved in committing the alleged offences. Learned counsel further made submission that looking to the wound certificate issued by the doctor, though it is mentioned that there is a contusion injury, but the doctor has not mentioned the place or location of the said injury in his injury certificate. It is also his submission that even looking to the oral evidence of the doctor, who is examined as PW-10, even in the evidence also, he has not clarified the contusion injury found at what portion of the body and not made clear by doctor PW-10. Hence he submitted that the trial Court without appreciating all these material aspects both oral and documentary, wrongly read the evidence and wrongly come to the conclusion that prosecution has proved the case as against both the accused persons for the offence punishable u/Sec.324 of IPC and wrongly convicted the accused persons. Hence, he made the submissions that firstly, there is no case as against accused No. 2 and even with regard to accused No. 1 also, the learned counsel further made the submission that even if this Court comes to the conclusion that there is a material and the trial court is right in convicting both the accused, then they are to be sentenced only with the fine and this court may modify the sentence of imprisonment of six months to both the accused.

Per contra, learned HCGP made the submissions that looking to the evidence of the eye-witnesses, who are the injured witnesses PWs-1 and 2 and PW-11 who is the daughter of PW-1 also stated in her evidence on oath before the trial Court that she had also personally witnessed the incident and the assault made by accused Nos. 1 and 2 on both the complainant and Venkat, the relative of the complainant.

Learned HCGP further made the submission that when the injured witnesses have deposed before the Court on oath, there is no reason for them to falsely implicate the accused persons leaving the real culprits. It is his submission that PWs-1 and 2 sustained injuries is established by examining PW-10 doctor and the wound certificates at Exs.P-8 and 9. Hence, learned HCGP made the submission that the trial Court rightly appreciated the materials placed on record, both oral and documentary and rightly comes to the conclusion to hold both the accused persons are guilty and they have committed the offence punishable u/Sec.324 of IPC and no illegality has been committed by the trial Court nor there is a perverse or capricious view taken by the trial Court. Hence, he submitted that, there are no valid grounds to interfere into the judgment and order of conviction passed by the trial Court and lastly he made the submissions to dismiss the appeal.

I have perused the grounds urged in the appeal memorandum, Judgment and Order of conviction passed by the trial Court and the evidence of PWs-1 to 12 so also the documents produced in the case. As per the complaint averments, it is the case of the complainant that the incident was witnessed by three independent witnesses who have been examined as PWs-6 to 8. Though it is the case of the complainant that the incident is witnessed by three independent witnesses and said three independent witnesses have been examined before the trial Court as PWs-6 to 8 but they turned hostile and not supported the case of the prosecution. Even during the cross-examination by learned public prosecutor by treating them hostile, nothing has been elicited from their mouth so as to believe the story of the prosecution. Therefore, the only witnesses left so far as the incident of offence is concerned is PW-1 Sangappa, who is the complainant-injured, PW-2 Venkat, the relative of the complainant and PW-11 Rukmini, daughter of PW-1 Sangappa.

Let me refer to the oral evidence of these three witnesses, the relevant portion in the evidence of these witnesses i.e. PW-1 Sangappa, who has been examined as PW-1 has deposed in his oral evidence that about two years back in the morning at 11-30 a.m., when he was going to the house having the fodder bundle on his head and when he came in front of the house of the accused persons, he saw that the bicycle was parked in front of the house of the accused persons, at that time, one dog came running hastily and dashed to the bicycle and because of that reason the bicycle fell down on the ground. Suspecting that PW-1 himself made the bicycle to fall on the ground, accused No. 1 assaulted him on the back portion of the head, with axe and accused No. 2 assaulted on his back 5-6 times with stick and ,both the accused persons were intending to commit his murder. Venkat, brother-in-law of the complainant came to rescue and at that time accused No. 1 assaulted him also on his head with the axe and so also on the right elbow portion, at that time, his daughter Rukmini and wife Saraswati came and pacified the quarrel. The said incident was witnessed by Arjun PW-7, Zhareppa PW-6 and Maruti PW-8. He lodged the complaint as per Ex.P-1 and he also identified material objects MO-1 stick and MO-2 axe. During the course of cross-examination, he deposed that his daughter Rukmini got married and she is staying at Kamthana. When the accused persons picked up quarrel with regard to the road portion, he informed elders of his village and requested them to decide the matter. There is a distance of 25-feet in between his house and the house of the accused persons. He denied the suggestion that, as he had abused wife of accused No. 1 and in that connection he was called to the police station. When it was asked during the course of cross-examination that whether accused No. 1 assaulted with axe 2-3 times, he answered he does not know but any how he sustained blow from the axe. The clothes which were worn on that day were blood stained and he became unconscious and within half an hour he regained consciousness. His wife and children brought him in auto rickshaw to Bagdal Hospital. He was in-patient in Bidar hospital for 8-days and thereafter he went to Solapur Hospital for treatment. Police have seized blood stained clothes of himself and his relative Venkat. He denied the suggestion that he used to call said Venkat to his village and both of them used to consume alcohol and by holding the knife and stick, they were threatening to the village people. He denied the further suggestion that with an intention to make the accused persons to leave the house in that locality, himself, Zhareppa, Kallappa have planned.

PW-2 Venkat deposed in his evidence, in his examination-in-chief that, accused No. 1 assaulted his brother-in-law on the hind portion of the head and accused No. 2 assaulted his brother-in-law on the back portion with stick 4-5 times. When he went to the rescue of his brother-in-law, accused No. 1 assaulted him on the head with axe and accused No. 2 assaulted him with stick on the left elbow portion. His sister-in-law and the people of that village came and finally pacified the quarrel. There was a dispute in between the accused and his brother-in-law in respect of the way. In the cross-examination, he deposed that one day earlier to the incident, he came to the house of his brother-in-law. The incident took place in front of the house of the accused persons. Accused No. 1 assaulted Sangappa with axe 2-3 times. The other people of the village also witnessed the incident, but, he does not know the names of those persons. After seeing the assault on his brother-in-law, he made hue and cry. When the accused persons were assaulting, the other people of the village simply observing the same. His brother-in-law became unconscious and clothes of his brother-in-law were blood stained and he was also in Bidar hospital for one month and thereafter he went to Hyderabad hospital. Police came to the hospital and seized the blood stained clothes of himself and his brother-in-law. He denied the suggestion that himself and his brother-in-law at one time consumed alcohol and went to assault the accused persons. He denied the further suggestion to pick up the quarrel, his brother-in-law called him to the village. He sustained injuries on the vertigo portion, behind and on the back. When he was assaulted on his head, the skull was broken. He denied the further suggestion that though accused persons have not at all assaulted him and his brother-in-law and no such incident has taken place and they have not sustained any such injuries even then he is giving false evidence.

P.W. 10-Dr.Avinash, who examined the injured persons, has deposed in his evidence that on 26.12.2008 at about 1.45.p.m. one Police Constable of Badgal Police Station brought two injured persons, i.e., Sangappa and Venkat, for treatment. Both the injured gave the history that they have been assaulted. Firstly, he examined Venkat (P.W.2) and noticed the following injures:

i Cut injury on the vertigo portion of the right side measuring 3 x � cms.

ii Cut injury on the left side of the forehead measuring 3x2 cms.

iii Cut injury on right hand measuring 2x2 cms.

He has deposed that he referred the said injured to Bidar District Hospital for higher treatment. In the District Hospital X-ray was taken, but it was noticed that there was no fracture. Hence, the injuries sustained by Venkat are simple in nature. Accordingly, he issued the wound certificate, which is marked as per Ex.P-8.

He has further deposed that on the same day at 1.50 p.m. he examined injured Sangappa (P.W. 1) and noticed the following two injuries

i Cut injury measuring 3 x � cms on the vertigo portion at the left side on the head.

ii Three internal injuries measuring 1 x 1 cms on the left hand

He has referred P.W.1 also to Bidar District Hospital and when the injured was subjected for X-ray, it is noticed that there is no fracture of any bones and hence, he issued the wound certificate stating that the injuries are simple in nature. The wound certificate is marked as at Ex.P-9.

On 13.05.2009 Police referred one axe to him to give his opinion that if a person is assaulted with the said axe, whether the injuries sustained by Sangappa and Venkat can be caused and he furnished his opinion, which is marked at Ex.P-12.

In the cross-examination, the doctor has deposed that the injured have not given the history of assault. He admitted that the axe was having sharp edge. If the person is assaulted with the sharp edged weapon, cut injuries will be caused. If a person is assaulted with blunt object, there may be internal injuries. He has not mentioned in the injury certificates that whether the injuries are f resh or old ones. If a person is assaulted with the stick forcefully, there is a possibility of fracture of bones, and it depends on the force used while assaulting.

P.W. 11-Smt. Rukmini, who is the daughter of the complainant, has deposed in the examination-in-chief that there was a dispute in between her father and accused in respect of the road. About two years back, she went to her parental place for delivery of child. Her father was returning to the house, having the fodder bundle on his head. Accused persons parked the bicycle infront of the house, one dog came running and dashed the bicycle and it fell down. Accused persons thought that her father made the bicycle to fall on the ground, and hence, accused No. 1 assaulted her father on his head with axe, accused No. 2 assaulted her father on the back with stick. Venkat (P.W.2) went to the rescue of her father, but both the accused persons assaulted Venkat with axe and stick. The neighbours have also witnessed the incident, but they did not come to the rescue. When Police came to the spot for spot mahazar, she herself shown the spot to the Police and even one stick, which was lying on the ground, which was used by accused No. 2 while committing the assault.

In the cross-examination, she has deposed that when the accused persons assaulted her father, she was at the spot, accused persons assaulted her father infront of their house. When she went to the rescue of her father, both the accused persons pushed her. Accused persons assaulted her father with axe and stick and gave 8-10 blows to her father and her father became unconscious and for about 8-10 days, he did not regain consciousness.

Perusing the oral evidence of said eyewitness and also the doctor, coming to the case as against accused No. 1-Maruthi is concerned, in the complaint there is a clear averment by the complainant about accused No. 1 holding axe in his hand and assaulting the complainant on his head and other parts of the body. The doctor, who has been examined as P.W. 10, has also clearly deposed in his evidence about the injury sustained by P.W.1, so also the evidence of P.W.11, who is the daughter of Sangappa. In this connection, I have also perused the wound certificate Ex.P-9, looking to the materials placed on record, the evidence of the witnesses clearly show that accused No. 1-Maruthi assaulted Sangappa with axe and caused the injuries. Even the doctor-P.W. 10 has deposed in his evidence that, if a person is assaulted with such type of axe, the injuries sustained by Sangappa would have been caused. Therefore, the Trial Court taking all these aspects into consideration held that material has been placed by the prosecution about the complicity of accused persons in committing the alleged offences and accordingly, convicted accused No. 1 for the offence punishable under Section 324 of IPC. So far as accused No. 1 is concerned, even after re-appreciating the entire materials i.e., both oral and documentary, I am of the clear opinion that the Court below has rightly appreciated the materials and rightly came to the conclusion in convicting accused No. 1. Hence, there is no illegality committed by the Trial Court in coming to such conclusion and there are no valid and justifiable grounds for this Court to interfere into the judgment and order of conviction passed by the Trial Court, so far it relates to accused No. 1.

So far as the case of the prosecution as against accused No. 2-Prabhu is concerned, the Trial Court also came to the conclusion that the prosecution proved its case even against accused No. 2 beyond reasonable doubt. In this connection, let me refer to the contents of complaint-Ex.P-1. P.W. 1-Sangappa, who is the injured eye-witness, lodged the complaint. Looking to the complaint averments, he has deposed about the assault made on him by accused No. 1 with axe and he further stated that in the meanwhile Venkat his brother-in-law came to the spot asking why they are assaulting his brother-in-law, at that time Maruthi (accused No. 1) assaulted P.W.2-Venkat on his head, on the left hand and caused the bleeding injury and with the said axe assaulted on the elbow portion of right hand and at that time the handle of the axe came in contact and he sustained injuries. Then, in the complaint, he mentioned that in the meanwhile, the villagers came and he has mentioned the names of three persons, who claims to be the eye-witnesses to the incident. So looking to the averments in the complaint nowhere it is stated that accused No. 2-Prabhu assaulted Venkat. This is one of the most material aspect about which there is omission in the complaint itself. It is no doubt true, P.Ws. 1 and 2 in their oral evidence, have deposed before the Court about the assault made by accused No. 2 on P.W.2. But, if that is so, when the complainant himself is the eyewitness to the incident, he ought to have mentioned the said aspect in the complaint without fail. When there is no such averment in the complaint itself even according to the version of the complainant, who is also the eyewitness to the incident, then reasonable doubt arises in the mind of the Court that whether really accused No. 2 has also assaulted P.W.2 Venkat as claimed during the course of giving evidence before the Court. As it is rightly submitted by the learned counsel for the appellants, that to the said extent there is an improvement in the case of the prosecution. It is no doubt true, this aspect was not confronted to the Investigating Officer during cross-examination as to whether the witnesses P.Ws.1 and 2 have deposed about the assault made by accused No. 2 on P.W.2. But when there is an exhibited document i.e., Ex.P. 1-complaint, the Court can look into the contents of the complaint, which clearly shows about the improvement in the case of the prosecution as against accused No. 2 is concerned.

I have also perused the wound certificate of Venkat (P.W.2), which is marked as per Ex.P-8. So far as injuries at Sl.Nos.1 and 2 are concerned, they are cut injuries and which cannot be caused by accused No. 2 because the case of the prosecution that accused No. 2 was holding the stick and the stick cannot cause the cut injuries. Now we are concerned with only injury at Sl.No.3, it is mentioned that deep cut injury over right hand measuring 2x2 cms, therefore, even looking to the said injury also there is no possibility of accused No. 2 causing such cut injury to Venkat. Therefore, even the medical evidence is not coming to the aid and assistance of the prosecution case to establish the charge as against accused No. 2. Looking to the evidence of P.W. 10-doctor, it is only the axe, which was referred for his opinion, and the stick was not referred for his opinion, whether the injuries sustained by P.W.2 can be caused if a person is assaulted with stick is concerned. So far as the wound certificate Ex.P-9 in respect of accused No. 1-Sangappa is concerned, the injury at Sl.No.1 is the cut injury and so far as injury No. 2 contusion marks about 3 Nos. measuring 1 x 1 cms. It is not the case of the complainant that he sustained injuries merely because of the assault made by accused No. 2 with stick, his allegation is only against accused No. 1. This material aspect has been completely overlooked by the Trial Court while appreciating the case of the prosecution.

Considering these materials placed on record, they clearly shows and raises reasonable doubt in the mind of the Court that whether really accused No. 2 also participated in committing the alleged offence. The Trial Court is not right in coming to the conclusion that accused No. 2 has also participated in committing the alleged offence and sentencing him and hence, to that extent the judgment and order of conviction passed by the Trial Court is not sustainable in law. Accordingly, appellant-accused No. 2 has made out a case. Hence, I proceed to pass the following :

ORDER

i Appeal in respect of appellant-accused No. 1 is dismissed.

ii Appeal in respect of appellant-accused No. 2 is allowed and the judgment and order of conviction dated 21.12.2010 passed by the Trial Court as against accused No. 2 is hereby set-aside.

iii Appellant-accused No. 2 is acquitted of all the charges levelled against him.

Fine amount; if any, deposited by accused No. 2 be refunded to appellant-accused No. 2.

Intimate the concerned Court accordingly.