S. Prasad Kumar vs State of Karnataka

Budihal R.B., J.—The appellant-accused, being aggrieved by the judgment dated 21.1.2010 and sentence dated 23.1.2010 passed by the Fast Track Court II, Bengaluru City, in S.C. No. 475/2007, has preferred the present appeal challenging the correctness and validity of the judgment on the grounds mentioned at (a) to (z) of the appeal grounds.

The case of the respondent-prosecution is that P.W. 5-Raghaveni filed a complaint as per Ex. P.4 alleging that she is residing in the address mentioned in the complaint. One Prasad Kumar the accused herein, resident of Ramamurthy Nagar, Gundappa Layout, was earlier serving as a driver under the father of the complainant and at that time, he was insisting the complainant and her sister to marry him. Thereafter, the father of the complainant removed him from the said work. On 14.11.2005, because of the misbehaviour of the said Prasad Kumar, sister of the complainant filed a complaint against him. Due to these reasons having enmity towards complainant and her family, on 9.4.2006 at 6.00 a.m. when the father of the complainant was not in the house, the said Prasad Kumar all of a sudden entered into the house and assaulted the complainant and her mother with knife. When Suresh, the neighbour came to the rescue of the complainant and her mother, the accused ran away. The complainant sustained injuries on her neck and also on her limbs and there were bleeding injuries. The mother of the complainant also sustained bleeding injuries to both of her hands. The accused posed life threat to the complainant and her mother that he will finish of them. Hence, she requested to register the complaint, and herself and her family members may be given protection and appropriate legal action may be taken against the accused person. On the basis of the said complainant, the case was registered against the accused for the alleged offences under Sections 448 and 307 of IPC.

After conducting investigation, prosecution filed charge sheet against the accused person for the offences under sections 448 and 307 of IPC. The trial court framed charge against the appellant-accused and thereafter, conducted the trial. After considering the materials produced, the trial court convicted the accused for the offences under Sections 451 and 307 of IPC. Being aggrieved by the judgment and order of conviction and also challenging the legality and correctness of the judgment, the appellant has preferred the present appeal.

I have heard the arguments of the learned Senior Counsel appearing for the appellant-accused and also the learned High Court Government Pleader appearing for the respondent-State.

Learned Senior Counsel for the appellant, submitted that P.Ws. 1 and 2, who are the eye witnesses according to the story of the prosecution, have turned hostile and not supported the case. P.W.2 relative of complainant and P.W.7 who are said to be the mahazar witnesses, also have not supported the case of the prosecution. The learned Senior Counsel submitted that though it is the case of the prosecution that M.Os. 1 to 3 blood stained clothes and M.O.4 knife are said to have been seized and sent to FSL for examination and report, the FSL report was not at all the produced during the course of the trial. Therefore, for non production of FSL report, adverse inference is to be drawn as to the case of the prosecution. He further submitted that there is no consistent evidence on the side of the prosecution to establish as to whether the complaint was a written or typed complaint and whether, it was prepared by the complainant herself or by the officials in the police station, on her instructions. It is also the submission of the learned senior counsel that in the complaint, the figure ''9'' is over written and the complainant concocted and inserted the dates. The learned senior counsel submitted that even according to the complaint averments, there was previous incident dated 14.11.2005 and because of the enmity and to take revenge against the appellant-accused, a false complaint has been filed against him. He further submitted that looking to the injuries sustained by the complainant and her mother, they were simple in nature. Looking to the materials produced in the case, both oral and documentary, it raises serious doubt as to the case of the prosecution and benefit of doubt may be given to the appellant-accused and he be acquitted from the case. The trial court, without considering these aspects, has passed the impugned judgment convicting the accused which is illegal and not sustainable in law. In support of his contention, the learned senior counsel has relied upon the following decisions:

"1. Sunil Kundu and Another Vs. State of Jharkhand,

AIR 1927 SC 1309 - (Satyanarain v. The State of M.P.)

Jalpat Rai and Others Vs. State of Haryana,

Copy of the order passed by the Supreme Court of India in Criminal Appeal 1974/2009 -(Prabir Mondal and Another v. State of West Bengal)

Copies of the Karnataka Police Manual-Volume 2 pages 1193-1203"

As against this, learned HCGP appearing for the respondent-State, during the course of the arguments, submitted that because of the previous incident that took place on 14.11.2005, the appellant-accused had the motive to commit the offence in the present case. As per Ex. P.7-voluntary statement of the appellant-accused, M.O.4-knife has been seized from the house of the appellant-accused. Though the panch witnesses have not supported the case of the prosecution, with regard to the seizure mahazar of M.O.4-knife, the Investigating Officer has clearly stated in his evidence about the seizure of the same. The learned HCGP further submitted that looking to the injuries sustained by the complainant and her mother Sarojamma, the injuries to the complainant are on the vital part of the body and this itself goes to show that the appellant-accused had an intention to commit the murder of the complainant. Hence, the court below taking into consideration the materials on record has rightly come to the conclusion in holding that appellant-accused has committed the offence and rightly convicted him. He submitted that there are no merits in the present appeal and the same may be dismissed.

I have perused the oral evidence of P.Ws. 1 to 10, the documents Exs. P. 1 to P.9 and the material objects M.Os. 1 to 5 and perused judgment and order passed by the trial court, the grounds urged in the appeal memorandum and also the decisions relied upon by the learned senior counsel appearing for the appellant accused.

Perusing the oral evidence on the prosecution side, P.W. 1-Jyothi Prakash, who is said to be one of the eye witnesses to the incident, has turned hostile and not supported the case of the prosecution.

P.W.2.-Suresh, in the examination in chief on 14.3.2008, has deposed that about two years back one day, he had visited the house of his sister situated in Udayanagar area of K.R. puram. Police had come to that house and obtained his signature for the panchanama. This witness was treated hostile. When cross examined by the Spl. P.P., P.W.2 has denied the suggestion that police had called him in front of the house bearing No. 41 and the complainant Raghaveni had pointed out the scene of occurrence and produced M.Os. 1 to 3. He denied the suggestion that though the pancha nama was drawn in his presence, he is deposing falsely.

P.W.3 is Dr. M.K. Muniraju. In his evidence, he has deposed that on 9.4.2006, at about 7.30 a.m. while he was on duty, Head Constable No. 1550 attached to K.R. Puram police station had brought injured Sarjoamma and Raghaveni with the history of assault. He has deposed that he noticed two injuries on Raghaveni mentioned in the wound certificate at Ex. P.2. The said injuries were fresh and simple in nature and could be caused if a sharp weapon like knife is used for assault. He has also deposed that he noticed two injuries as mentioned in Ex. P.3 to the person of Sarojamma. The injures were fresh and simple in nature and can be caused by a knife. In the cross examination, P.W.3 has deposed that the injuries sustained by Raghaveni could or could not happen in case of vehicle accident and he has deposed that he cannot say the exact weapon by which those injuries were caused. He denied the suggestion that on 9.4.2006, Sarjoamma and Raghaveni had not come to the hospital. He denied further suggestion that the injuries sustained by Sarojamma and Raghaveni were caused by sharp weapon is incorrect.

P.W.4 one Nagaraju is the Head Constable. In his evidence, P.W.4 has deposed that on 9.6.2006, the police inspector gave him four sealed articles directing him to carry the same to the FSL and accordingly, he went and handed over them to the FSL. In the cross examination, P.W.4 has denied the suggestion that he has not carried such articles to the FSL and at the instance of his superior officer, he is giving false evidence.

P.W.5-Raghaveni is the injured and she is the complainant. In her evidence in the examination in chief on 20.12.2008, P.W.5 has deposed that she knew the accused present before the court. He was working as car driver to her father during the year 2005. In the month of November, he insisted her to marry him. She informed the same to her father and then, her father removed him from service. Due to the said enmity, on 14.11.2005, when her sister Veena was waiting at the bus stop to go the college, the accused dragged her and told her to persist her sister i.e. P.W.5 to marry him. Her sister came back to house and informed the same to her father, who took her to the police station and lodged the complaint. P.W.5 has also deposed that on 9.4.2006 at 6.00 a.m., when her father had been to morning walk, she slept in the room. The accused, all of a sudden, criminally trespassed into the house and assaulted on her neck. Though she screamed and cried, the accused assaulted on her left hand with knife and caused injuries. When her mother came to rescue, the accused assaulted her mother also to both hands and caused bleeding injuries. When her sister screamed, the neighbour Suresh came to rescue them by that time, the accused ran away from the house. Firstly, she was taken to the hospital and after getting first aid, she went to the police station and lodged the complaint as per Ex. P.4. P.W.5 has further deposed that on the same day morning at 9.30, police came nearby her house and conducted spot mahazar. She herself had showed the spot to the police and mahazar was drawn as per Ex. P.5. One P. Kumar and Suresh are the witnesses to the spot mahazar. During the spot mahazar, she gave her nighty having blood stains so also gave saree and blouse of her mother, which were blood stained. The police seized them and they were marked as M.Os. 1 to 3. She has deposed that she can identify the knife used by the accused to assault her. The said knife was shown to her and it was marked as M.O.4 and the cover in which the knife was kept was marked as M.O.5.

In the cross examination, P.W.5 has deposed that when they went to the police station, it was 6.45 a.m. The complaint was got typed in the police station on the computer. When the accused was working as car driver, in the absence of her father, she used to move in the said car. Her sister filed the complaint in K.R Puram police station and after registering the said case, the accused had not met her. She denied the suggestion that they themselves were insisting the accused to marry her, otherwise, he would be sent to jail. She further denied the suggestion that after lodging of the complaint by her sister against the accused, when they met him in the temple, they posed life threat to him. They had not lodged written complaint against the accused for he troubling them frequently. However, they informed the police and the police said that they had called the accused and warned him. She denied suggestion that with intention to trouble the accused, they filed a false case. She has admitted that her sister is married and when habeas corpus application was filed, her sister was not married. It is admitted as true that the police traced her sister and produced before the court. But she does not know that the police have also produced one Shiva Kumar. She denied the suggestion that she is falsely deposing that all of a sudden, the accused criminally trespassed into their house. She denied the suggestion that Suresh had not come to the spot and she is deposing falsely that the accused assaulted her with knife. She has further denied the suggestions that herself gave knife, which was produced before the court, to the police and from the said knife, herself and her mother had not sustained any injuries. She has further denied the suggestion that on the said day, the accused was not at all in Bengaluru. She denied the suggestion that there were no blood stains on her nighty.

P.W.6-Smt. Sarojamma, who is the mother of the complainant, has also deposed consistently with that of P.W.5. In the cross examination, P.W.6 has denied the suggestion that the accused has not at all served as a car driver to them. She has denied the suggestion that on 9.4.2006, no such incident took place in their house and that, P.W.5 Raghaveni was not at all in the house. She has deposed that when she went to the room of Raghaveni, she saw the accused assaulting her daughter with knife to her neck portion. She has denied the suggestion that with intention to perform the marriage of Raghaveni with the accused, she is deposing falsely. She has further denied that they have not gone to the hospital.

P.W.7-P. Kumar gave his evidence on 20.3.2009. In the examination in chief, he has stated that Ex. P.5 mahazar bears his signature as per Ex. P.5(b). About two years back, his signature was obtained in the police station. In his presence, no panchanama was conducted and no articles were seized. This witness was treated as hostile, on the request of the Spl. P.P. In the cross examination, P.W.7 denied the suggestion that the police had taken him to the house of Raghaveni, who showed the spot and seized the nighty and nylon saree and one blouse produced by her and in that regard, panchanama was drawn and obtained his signature.

P.W.8-N.H. Siddappa is a police inspector. In his evidence in the examination in chief he has stated that, on 31.5.2006, he took up the further investigation of the case. On the same day, the accused, who was absconding, had brought the anticipatory bail order to the police station. He has deposed that on enquiring about the incident, he recorded voluntary statement of the accused. In his voluntary statement, the accused said that he kept the knife, used for the incident, in his house and he will show the same, if he is taken to the said place. PW.8 has further deposed that he secured two panchas namely, Basavaraju and Ranganatha, and then went to the house of accused along with panchas and the accused produced a knife kept in the said house. It was seized under Mahazar-Ex. P.6. P.6(a) is his signature. Voluntary statement of the accused is Ex. P.7. He has further deposed that on 9.6.2006, he sent the seized articles like knife and clothes to the FSL through Nagaraju, police constable. On 13.6.2006, after completion of investigation, he filed a charge sheet. He identified the accused present before the court. In the cross examination, P.W.8 has denied the suggestion that the accused has not given the voluntary statement as per Ex. P.7. He denied the suggestion that he had not been to the house of the accused and prepared the mahazar-Ex. P.6 in the police station and that, he had not seized the knife from the accused. P.W.8 denied the further suggestion that on 31.5.2006, if it is said that the accused had not appeared before him in the police station and he had appeared before the SHO, P.W.-8 deposed that himself was the SHO on that day and the accused appeared before him.

P.W.9-Veena, who is the younger sister of the complainant, has deposed in her evidence in examination in chief that, she knew the accused and he was serving as a car driver in their house. Herself, her elder sister Raghaveni and her parents were residing in the house. The accused was insisting her sister Raghaveni to marry him. When it was brought to the notice of her father, the accused was removed from the job. On 14.11.2005, she was waiting at the tin factory bus stop to go to the college. It was about 8.15 or 8.20 a.m., the accused came there, held her hand and dragged insisting her to compel her sister Raghaveni to marry him, other wise he will kill all the family members. Immediately, she went to the house and informed the same to her parents and then the complaint was lodged in K.R. Puram police station. P.W.9 has further deposed that on 9.4.2006, at 6.00 a.m., when her father was not in the house, the accused came inside the house and went to the room of her sister Raghaveni and made an attempt to commit her murder by stabbing with knife on her neck and on the hand. There were bleeding injuries. When her mother went to save Raghaveni, the accused assaulted her mother with knife and caused bleeding injuries. She has further deposed that when she screamed, Suresh, who was at the upstairs of the house, came there. The accused tried to escape and ran away. Jyothi prakash also came there. At that time, the accused along with the knife, escaped by jumping the compound wall. In the cross examination, P.W.9 has deposed that on 9.4.2006 in the morning, her father opened the door of the house. She slept in the hall and her sister Raghaveni slept at the distance of 10 feet from where she slept. She denied the suggestion that she has not seen as to who entered the house in the morning on 9.4.2006 and denied the further suggestion that because of the earlier complaint and to take revenge against the accused, she is falsely deposing that the accused came to the house, assaulted her sister and made an attempt to commit murder of her sister. She denied the suggestion that as they had enmity towards accused, they were filing the complaints often. It is true that her father filed habeas corpus petition before the high court and her self and her husband Shivakumar were produced before the court. She has admitted as true that in connection with the incident dated 14.11.2005, the police have already filed charge sheet. She has denied the suggestion that they prepared the complaint in the house itself. Further, she has deposed that it was typed in the police station. She has denied the suggestion that the accused had not come to house and he had not at all brought the knife. She denied the further suggestion that on 3.11.2005, the accused was not removed form the work of driver. She denied the further suggestion that the accused has not caused bleeding injuries to her sister and her mother and that, she is seeing knife-M.O.4 for the first time before the court.

P.W.10-G.Y. Giriaj, the PSI, is the investigating officer in this case. He has deposed about the investigation he has conducted. In the cross examination, he has denied the suggestion that the complaint was typed by him in the police station itself. He denied the further suggestion that he has not sent the complainant to the K.R. Puram government hospital for treatment. He denied further suggestion that on the same day in between 9.30 and 10.30, he has not at all conducted panchanama and not seized M.Os. 1 to 3.

Perusal of the oral evidence of the parties as also the documents produced in the case, it is clear that P.Ws.5, 6 and 9 belong to one family. P.Ws.5 and 6, who are the injured witnesses, have clearly deposed in their evidence that, on the date of incident, in the morning, the accused criminally trespassed into the house of the complainant and assaulted them with knife and caused bleeding injuries. P.W.9-Veena has also deposed in her evidence that she has seen the accused entering into their house and causing injuries to P.Ws.5 and 6.

The case of the prosecution that the complainant and her mother sustained bleeding injuries is supported by the documentary evidence Exs. P.2 and 3 - the wound certificates, wherein the doctor, who issued the said certificates, has mentioned about the injuries sustained by P.Ws.5 and 6 i.e., Raghaveni and her mother Sarojamma. The doctor has also been examined before the court as P.W.3, whose evidence I have already referred, and he has deposed before the court about the injuries sustained by P.Ws.5 and 6 and he treating them. The doctor has also opined that the said injuries could be caused by the sharp weapons like a knife. Looking to the materials on record, the defence of the accused during the course of cross examination that P.Ws.5 and 6 have not sustained injuries and the accused has not at all assaulted them with knife, cannot be accepted.

The prosecution has also produced M.O.4-knife, which was seized as per the voluntary statement given by the accused. It is no doubt true that the panch witnesses, regarding seizure of the knife, have not supported the case of the prosecution. However, the police officer - P.W.8 has clearly deposed about the voluntary statement-Ex. P.7 given by the accused and the accused leading the police officer and panch witnesses to his house and producing the knife-M.O.4. P.W.8 has also spoken about drawing of the mahazar at Ex. P.6 and seizure of M.O.4. During the course of cross examination of P.W.8, nothing has been elicited from his mouth so as to disbelieve his evidence about the voluntary statement of the accused and seizure of the knife-M.O.4. The evidence of the P.W.8 cannot be rejected only on the ground that he is the police officer. The defence has to make out a case that P.W.8-police officer was having enmity towards accused and with intention to falsely implicate him in the case, P.W.8 has planted M.O.4 knife. No such material has been placed by way of defence.

During the course of the cross examination of prosecution witnesses, it was suggested by the counsel for the accused that on the date of the incident, the accused was not present at Bengaluru. By merely suggesting to the prosecution witness, the defence has raised plea of alibi. When such contention has been taken by the accused that he was not at Bengaluru on the date of the incident, the burden is on the accused to establish the said fact with acceptable and cogent materials. Except making such a suggestion, the accused has not placed any material to show to that he was not present at Bengaluru on the date of the incident. Even during the course of recording statement of the accused under Section 313 of Cr.P.C. and as per question No. 17, when he was asked, whether he wanted to say anything, the accused said that he has nothing to say. At least during recording of the statement under Section 313 of Cr.P.C., the accused could have stated before the court that he was not present at Bengaluru on the date of incident. On the other hand, the evidence of prosecution witnesses and more particularly, the injured witnesses, Raghaveni and Sarojamma and P.W.9-Veena i.e., the sister of Raghaveni, all have consistently deposed about the accused entering into their house and assaulting Raghaveni and Sarojamma. This evidence on the side of the prosecution clearly goes to show the presence of the accused at the place of incident. Therefore, his plea of alibi cannot be accepted at all.

It was suggested at one breadth that the accused was not serving as a car driver under the father of P.W.5-Raghaveni. Looking to the cross examination of Prosecution witnesses, even the defence has admitted that the accused was serving as a car driver earlier.

As per the story of prosecution, the motive for the accused to commit the present incident was that when P.W.9-Veena, the sister of complainant, was waiting at the bus stop to go to college earlier to the incident of this case, the accused went there and held her hand and dragged insisting her to pursue her sister Raghaveni to marry him. In that regard also, there was a complaint and even according to the submission of the learned counsel for the accused, charge sheet has been already filed in the said case. It is also the prosecution case that because of the earlier incident, the accused has been removed and that was the reason for the accused to have grudge towards the complainant and her sister. This motive has also been established by the prosecution with cogent and satisfactory materials.

The contention of the learned senior counsel for the appellant-accused is that, in the complaint, the date ''9'' appears to have over written. I have perused the contents of the complaint. Perusing all the other materials placed by the prosecution, it satisfactorily makes it clear that the incident took place on 9.4.2006. Therefore, the contention that the figure ''9'' in the complaint appears to have been corrected cannot be a ground to reject the entire case of the prosecution, even otherwise, it has been established that the incident has taken place on 9.4.2006 itself.

With regard to contention of the defence that the FSL report is not produced before the court and therefore, it cannot be said that M.Os. 1 to 4 were having blood stains. In this regard, I have perused the decisions relied upon by the learned senior counsel appearing for the appellant accused. It is true that the FSL report was not secured and not produced during the course of the trial. It is the lapse on the part of the investigating machinery. The materials would show that M.Os. 1 to 4 were sent to FSL for examination and report. Even looking to the evidence of P.W.3-doctor, he has clearly deposed before the court that there were bleeding injuries to P.Ws.5 and 6. When such materials are on record, the ground that the FSL report was not produced before the court during course of the trial and the case of the prosecution to be rejected cannot be accepted. The reported decision relied upon by the learned senior counsel for the appellant-accused would indicate that the material objects were not sent to FSL. But in the present case, it is not so and the evidence of P.W.4-Nagaraju, police constable, clearly shows that he had carried the four sealed articles to FSL and handed over them to FSL. He has denied the suggestion that he did not carry the said articles to the FSL.

Though, as opined by the doctor, the injuries sustained by the complainant Raghaveni on her neck and on the hand are simple in nature, but looking to the location of the injuries, one injury sustained on the vital part of the body. The materials on record would indicate that the accused entered the house of the complainant holding the knife. This, in my opinion, makes it clear that there was intention on the part of the accused to make an attempt to commit murder of the complainant P.W.5-Raghaveni.

I have perused the decisions relied upon by the learned senior counsel appearing for the appellant-accused. The facts and circumstances involved in the reported decisions are altogether different from the facts and circumstances involved in the case on hand. Therefore, those decisions will not come to the aid and as assistance of the appellant to acquit him from the case. Looking to the entire materials on record, the judgment and order of conviction passed by the trial court is in accordance with law. No illegality has been committed by the trial court to interfere with the matter. No merits in the appeal and hence, the same is herby dismissed.