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Judgment
Mohan M. Shantana Goudar, J—The judgment and order dated 3.4.2014 passed by the Principal Sessions Judge, Tumkur, in S.C. No. 4/2013 is called in question in these two appeals.
By the impugned judgment and order, the accused are convicted for the offences punishable under Sections 323, 324 and 325 r/w. Section 34 of IPC. They are sentenced to undergo imprisonment for the period of six months, one year and three years respectively in respect of the aforesaid offences apart from sentence of fine.
Crl. A. No. 424/2014 is filed by the convicted accused praying for their acquittal, whereas Crl. A. No. 494/2014 is filed by the State seeking for conviction of the accused for the offence punishable under Section 307 of IPC, inasmuch as the charge was framed for the offence punishable under Section 307 of IPC.
Case of the prosecution is that the first accused is the father-in-law of P.W. 1-Azmath Ulla Sheik (injured); accused No. 2 is the son of accused No. 1 and brother-in-law of P.W. 1; accused No. 3 is the son of elder sister of accused No. 1; marriage of the daughter of accused No. 1 was performed with P.W. 1 on 25.11.2004 at Bangalore; out of the said wedlock, two children are born; P.W. 1 was taking care of Tours and Travels business of his father at Mumbai and as such he was staying at Mumbai along with his wife and children; however, the wife of P.W. 1 wanted her husband to shift to Bangalore, but P.W. 1 did not want to do so; in that regard there used to be quarrel between the couple; wife of P.W. 1 has lodged a complaint against P.W. 1 and others alleging harassment by her husband and demand of dowry etc; in the said crime, P.W. 1 had obtained anticipatory bail and he was attending Court.
On the date of the incident, i.e., on 26.7.2011, at about 10.30 p.m. when P.W. 1 and his friend Mr. Javid C.W. 1 (complainant) were proceeding to a Daba for having dinner on a motorcycle; the said motorcycle was waylaid by the accused, who had come to the said spot in a car; after alighting from the car, four persons including the accused quarreled with P.W. 1 and C.W. 1; thereafter, accused started assaulting P.W. 1 with knife and iron rod; when C.W. 1 tried to intervene, he was also assaulted by the accused; the injured P.W. 1 fell unconscious on the spot and he was shifted to Government Hospital, Kunigal by P.Ws. 2 and 3 who came to the spot immediately after the incident; firstly both the injured were taken to Government Hospital, Kunigal and thereafter P.W. 1 was stated to have been shifted to NIMHANS Hospital for taking treatment in respect of the injury on his head.
However, medical records pertaining to NIMHANS Hospital are not forthcoming; only the medical evidence produced before the Court below are at Exs. P4 and P5 and the evidence of the doctor P.W. 5 who treated both the injured at Government Hospital, Kunigal, immediately after the incident.
Complaint came to be lodged by C.W. 1-Javid as per Ex. P6 at about 1.45 a.m. on 27.7.2011 before Amruthur Police Station, Kunigal Taluk, Tumkur District, which came to be registered in Crime No. 119/2011 for the offences punishable under Sections 323, 324, 307, 504 r/w. Section 34 of IPC. P.W. 8-Sub-Inspector of Police completed the investigation and laid the charge sheet.
In order to prove its case, the prosecution in all has examined 8 witnesses and got marked 7 Exhibits and 5 Material Objects. On behalf of the defence, no witness is examined and no documents are marked.
Sri Balagangadhar, learned advocate appearing on behalf of the convicted accused taking us through the entire material on record submits that the case of the prosecution as made out before the Court is highly exaggerated; even if the incident is assumed to have taken place, the same might have taken place because of the quarrel which ensued between the accused and P.W. 1 keeping in mind the domestic quarrel between P.W. 1 and his wife; since it was a family dispute between P.W. 1 and accused, there would have been some wordy quarrel and during the said process, there might have push and pull by the parties; accused No. 1 is a physically handicapped person and he was not present on the scene of offence; since no medical records pertaining to NIMHANS Hospital are produced before the Court below, the trial Court is not justified in sentencing the accused to undergo imprisonment for three years. In other words, apart from arguing for acquittal of the accused, in the alternative, he submits that the sentence which is already undergone by the accused may be sufficient to be imposed on the accused.
Sri P.M. Nawaz, learned SPP drawing the attention of the Court that the accused pronounced that P.W. 1 would not be left and that he would be murdered, such utterness by the accused would show ample motive on their part to commit the crime of murder; though medical records pertaining to NIMHANS are not produced by the prosecution before the Court below, the wound certificate at Ex. P4 and the evidence of the doctor-P.W. 5 in respect of P.W. 1 is sufficient to bring home guilt against the accused for the offence punishable under Section 307 of IPC.
P.W. 1 is the injured eye witness. However, the complaint came to be lodged by C.W. 1 who was riding the motor cycle. P.W. 1 was the pillion rider.
P.Ws. 2 and 3 are friends and relatives of P.W. 1. They went to the scene of offence and shifted the injured to the hospital.
P.W. 4 is the witness for scene of offence panchanama at Ex. P3.
P.W. 5 is the doctor who treated both the injured at Government Hospital, Kunigal and issued wound certificates a per Exs. P4 and P5.
P.W. 6 is the witness for seizure mahazar at Ex. P1 under which clothes of the injured were seized and marked as M.O. Nos. 3 and 4.
P.W. 7 is the Head Constable who received the complaint and registered the same in Crime No. 119/2011, based on the complaint filed by C.W. 1.
P.W. 8 is the Investigating Officer who completed the investigation and laid the charge sheet.
One of the injured, i.e., C.W. 1 is not examined, before the Court. C.W. 1 is the complainant and he lodged the complaint as per Ex. P6. Ex. P5, the wound certificate of C.W. 1 reveals that he had sustained two simple injuries. There was no motive on the part of the accused to assault C.W. 1 also.
P.W. 1 has reiterated the very facts as found in the complaint at Ex. P6 lodged by C.W. 1. He narrated the motive for commission of offence and the incident in question in detail. According to P.W. 1, accused No. 1 assaulted him with knife and consequent upon which he sustained grievous injuries on his head and on the left little finger. He further deposed that accused No. 3 held him tightly with a view to facilitate accused Nos. 1 and 2 to assault him. He was assaulted by accused No. 2 also with iron rod on his head.
In the cross-examination, P.W. 1 does not identify the knife which is shown to him before the Court below while recording his deposition. According to P.W. 1, the knife which was seized by the police and brought before the Court is not the one which was allegedly used by the accused for commission of offence. It is clarified by P.W. 1 that the knife which was used by accused No. 1 for commission of offence was bigger one, which measured about 12 to 15 inches. Thus, it is clear that M.O. No. 1 knife which was seized and brought before the Court is not the knife which was allegedly used by accused No. 1 for commission of offence. It is also borne out from the evidence of P.W. 1 that accused No. 3 held him tightly and accused No. 1 and 2 assaulted him with knife and iron rod.
The wound certificate at Ex. P4 discloses that P.W. 1 has sustained four injuries. The doctor has opined that injury Nos. 2 and 3 are simple in nature. However, the doctor has clarified that injury Nos. 1 and 4 are grievous in nature. Injury No. 1 is the cut wound over the palm; x-ray of the palm shows fracture of left little finger. Injury No. 4 is merely narrated as "patient is in unconscious state (moderate head injury as per NIMHANS report)". Though the doctor''s opinion with regard to injury No. 4 is based on the alleged report of NIMHANS Hospital, the said report is not placed on record. So also, none of the medical records maintained by NIMHANS Hospital pertaining to this case are produced before the Court below. The doctor from NIMHANS Hospital is also not examined before the Court. Therefore, it is very hard for this Court to believe the version of the prosecution that P.W. 1 was in unconscious state and he sustained moderate head injury. In the absence of the medical records, it is not possible for this Court to agree with the opinion of the doctor (P.W. 5) with regard to injury No. 4. However, Ex. P4 coupled with the evidence of the doctor-P.W. 5 makes it clear that injury No. 1 sustained by P.W. 1 is fracture of left little finger. Little finger is very delicate and such injury may be caused when a person falls on the ground. Since the incident has taken place on the road and as there was quarrel between the accused and P.W. 1, there might have been push and pull between the parties. In that context, the said injury might have been sustained by P.W. 1.
Be that as it may, the fact remains that P.W. 1 has sustained fracture of left little finger. Technically it is a grievous injury.
Having regard to the aforementioned material on record, we are of the opinion that the trial Court ought to have kept in mind the background in which the incident has taken place; the manner in which the incident has taken place and that the injury sustained by P.W. 1 is not so serious.
The records reveal that accused No. 1 has already undergone imprisonment for about seven days. P.W. 1 was also involved in a crime of murder and subsequently he is acquitted. Having regard to the totality of the facts and circumstances of the case, in our considered opinion, the period of imprisonment already suffered by accused No. 1 would be sufficient punishment that can be imposed on him. However, the records are not clear as to whether accused Nos. 2 and 3 were the cause for P.W. 1 sustaining injury No. 1. It is clear from the records that it was accused No. 1 alone who assaulted P.W. 1 with knife, consequent upon which P.W. 1 sustained fracture of left little finger. Case of the prosecution that accused No. 3 assaulted P.W. 1 with iron rod is not proved by the prosecution for the reasons already mentioned by us. The only case as made out against accused No. 3 is that he held P.W. 1 tightly. This factor is also not proved by the prosecution beyond reasonable doubt. The charge against accused Nos. 2 and 3 is only under Sections 323 and 324 r/w. Section 34 of IPC. But there is nothing on record to show that they shared common intention along with accused No. 1 for commission of offence. Therefore, accused No. 1 alone shall be convicted for the offences punishable under Sections 323, 324 and 325 of IPC. Accordingly, the following order is made:-
i) The judgment and order dated 3.4.2014 convicting accused No. 1 for the offences punishable under Sections 323, 324, 325 of IPC stands confirmed. Accused No. 1 is sentenced to undergo imprisonment for the period already undergone by him.
ii) The judgment and order dated 3.4.2014 convicting accused No. 2 and 3 for the offences punishable under Section 323 and 324 of IPC stands set aside. They are acquitted of the said offences.
iii) However, sentence of fine imposed by the trial Court is enhanced to Rs. 2,000/- (Rupees two thousand only) for the offence punishable under Section 323 of IPC; Rs. 5,000/- (Rupees five thousand only) for the offence punishable under. Section 324 of IPC and Rs. 20,000/- (Rupees twenty thousand only) for the offence punishable under Section 325 of IPC.
iv) In case of default of payment of fine, accused No. 1 shall undergo further imprisonment for a period of one month collectively.
v) The fine amount as awarded supra shall be deposited before the Court below within four months from today.
vi) In case of non-deposit of the fine amount within the aforementioned period, the default sentence operates.
vii) In case of recovery of fine, an amount of Rs. 25,000/- (Rupees twenty-five thousand only) shall be paid to P.W. 1-Sri Azmathulla G. Sheik, S/o. Gouse Sheik, as compensation as per the provisions of Section 357 Cr.P.C. Rest of the fine amount shall vest in the State.
viii) The judgment and order passed by the trial Court with regard to sentence is modified accordingly.
Crl. A. No. 424/2014 filed by the convicted accused is partly allowed to the aforementioned extent.
Crl. A. No. 494/2014 filed by the State stands dismissed.