N.S. Eshwar vs The State of Karnataka

N. Ananda, J.—The appellant (hereinafter referred to as accused no. 1) and accused no. 2 were tried for offences punishable under Sections 504, 323, 326, 307 r/w 34 IPC. The learned Sessions convicted accused no. 1 for an offence punishable under 326 IPC and accused no. 2 for offences punishable under Sections 504 and 323 IPC.

Accused no. 1 is the husband of accused no. 2. The learned Sessions Judge has extended the benefit under relevant provisions of the Probation of Offenders Act to accused no. 2. Therefore, accused no. 1 alone has preferred this appeal.

I have heard Sri. C.M. Sangolli, learned counsel for accused and learned Government Advocate for the State.

It is the case of prosecution that during 2007, accused no. 1 was running a canteen in Gante Kanavi village. PW.8-Kashiyamma was a widow. She was living with her son in a hut near the canteen run by accused no 1. About two days prior to 07.01.2007, during night, accused no. 1 rushed to the house of PW.8 with a rabbit and demanded PW.8 to cook food. The accused was sent out of the house.

On the following day, PW.8 came to the canteen run by accused no. 1 and questioned accused no. 1 of his audacity to visit her house during night and demanding her to cook food. Accused no. 1 assaulted PW. 8 who also retaliated by assaulting accused no. 1 with her footwear. Accused no. 1 and 2 bore grudge against PW.8.

On the date of incident, when PW.8 was going near the canteen of accused, accused no. 2 held the braid of PW.8 and accused no. 1 brought a chopper from his canteen and repeatedly assaulted PW.8 with a chopper and caused grievous injuries including fractures. At the first instance, PW.8 was treated in Government Hospital at Tarikere, later in McGann Hospital at Shimoga and thereafter in Kasturba Hospital at Manipal. The defence of accused is one of total denial.

The learned trial judge on appreciation of evidence of injured witness, eyewitness account of PW.3 and also medical evidence of PW.10 convicted accused no. 1 for an offence punishable u/s 326 IPC Therefore, following points would arise for determination:

1) Whether the prosecution has proved that on 07.01.2007 at about 5.00 p.m., in front of canteen of accused'' no. 1 in Gante Kanavi village, accused no. 1 assaulted PW.8 Kashiyamma with a chopper and caused grievous injury to her, thereby committed an offence punishable u/s 326 IPC?

2) Whether the learned trial judge has properly appreciated the evidence on record?

3) To what order?

The prosecution has relied on the following:

I Motive

II Evidence of injured (PW.8) and eyewitness (PW.3)

III Medical Evidence of PW. 10

Before adverting to appreciation of evidence and submissions made at the Bar, it is necessary to state that accused no. 1 and 2 were tried for aforestated offences; Accused no. 2 is the wife of accused no. 1; she was convicted for offences punishable under Sections 504 and 323 IPC; she had not challenged the judgment of conviction because the learned trial judge has extended the benefit under the relevant provisions of the Probation of Offenders Act.

Thus, here is a situation where husband (accused no. 1) and wife (accused no. 2) were tried for offences punishable under Sections 504, 323, 326, 307 r/w 34 IPC. The second accused was convicted for offences punishable under Sections 504 and 323 IPC and the first accused was convicted for an offence punishable under 326 IPC. The wife has not challenged the impugned judgment of conviction because she was released under the relevant provisions of the Probation of Offenders Act.

PW.8 Kashiyamma has deposed about the motive for incident of assault. PW.8 was a widow. She was living with her son. She was sustaining by coolie work. She was living in a hut near the canteen run by accused no 1. PW.8 has deposed about the incident, which had taken place about two days prior to 07.01.2007.

PW.8 has deposed; about two days prior to 07.01.2007 during late hours in the night, accused no. 1 rushed to the house of PW.8 with a rabbit and demanded her to cook food; there was altercation between PW.8 and accused no. 1 and accused no. 1 was sent ''out of the house; on the following day, PW.8 had gone near the canteen of accused no. 1 to question about the highhanded and indecent acts of accused no. 1; accused no. 1 instead of showing remorse and pleading excuse for what was done by him, assaulted her; PW.8 in retaliation assaulted accused no. 1 with her footwear. This was the immediate motive for the incident of assault that took place on 07.01.2007.

PW.8 has given cogent and consistent evidence regarding the incident which was the immediate motive for accused no. 1 to assault PW.8.

PW.8 has deposed; that on the date of incident i.e., on 07.01.2007 at about 5.00 p.m., when she was going near the canteen of accused, accused no. 2 held the braid of PW.8 and questioned PW.8 for assaulting her husband with a footwear; accused no. 1 brought a chopper from his canteen and assaulted PW.8.

PW.3-Gangadhara was an eyewitness to the incident of assault. PW.3 has deposed; that on the date of incident, PW.3 and one Murthy were going near the canteen of accused, there was a quarrel near the canteen; when they came near the canteen, they saw quarrel going on between PW.8 and accused no. 2; accused no. 2 was holding the braid of PW.8 and was abusing PW.8 for assaulting her husband with a footwear; at that time, accused no. 1 brought a chopper from his canteen and assaulted on the head, left elbow and right hand of PW.8; PW.3 and others intervened and saved PW.8 from the hands of accused no. 1; PW.8 was shifted to hospital; accused no. 1 was made to sit by the side of canteen however, within a short time, he disappeared from that place;

During cross-examination, PW.3 has reiterated the version given in examination-in-chief. From the cross-examination of PW.3, we do not find that he had grudge to falsely implicate the accused. Therefore, there are no reasons to suspect the evidence of PW.3.

PW.10-Dr. H.M. Lohith has deposed; that he was working as Medical Officer in General Hospital at Tarikere. On 07.01.2007, at about 5.50 p.m., he examined PW.8-Kashiyamma and found following injuries:

1) Fresh deep incised wound at the scalp left side just above the forehead measuring 15 cms x 2 cms

2) Fresh lacerated injury with involvement of whole left elbow with dislocation and involvement of underlying bones.

3) Fresh incised wound on the right knee joint with open fracture medial femoral condyle.

After giving first aid treatment, he referred PW.8 to higher center for treatment. He received medical report from Kasturba Hospital at Manipal and opined that injury no. 2 and 3 were grievous in nature.

During cross-examination, certain hypothetical suggestions were put to PW.10 and PW.10 has rightly denied such suggestions.

Thus, we find that prosecution has proved that there was immediate motive for the assault. The evidence of injured witness namely PW.8 finds corroboration from the evidence of PW.3 and also from medical evidence of PW. 10.

The first information of the incident of assault was lodged by PW.1 Rajamma. She had not witnessed the incident however, after learning about the incident, she had gone near the canteen of accused no. 1 and found that PW.8 had suffered injuries.

PW.1 is not an eyewitness however, the first information lodged by PW.1 and her evidence would lend corroboration to evidence of PW.8.

The learned trial judge on proper appreciation of evidence has held accused no. 1 guilty of an offence punishable u/s 326 IPC.

The learned counsel for accused submits that sentence may be reduced.

The accused had assaulted a helpless widow with a chopper and caused multiple fractures to her. The immediate motive for the assault would reveal that accused had committed highhanded acts on PW.8 who was a widow. Therefore, there are no mitigating circumstances to reduce the sentence.

In the result, I pass the following:

ORDER

The appeal is dismissed.