Shivaraju and Ors @APPELLANT@Hash State of Karnataka

This appeal is directed against the judgment of conviction and order of sentence passed by the Principal District & Sessions Judge, Mysore, in

S.C.No.176/2009 dated 4.8.2010 convicting Accused Nos.1 to 3 for the offence punishable under Section 324 read with 34 IPC and sentencing them

to undergo simple imprisonment for a period of three years and to pay a fine of Rs.2,000/- each and in default, to undergo simple imprisonment of

three months.

The factual matrix of the appeal is as under:

PW-1 Varadaraju said to be the injured had given a complaint before the police alleging that on 31.10.2008 at about 5.00 p.m., the accused persons

had picked up a quarrel with his mother. On the same day at about 8.00 p.m., that when he went with his mother and questioned the accused as to

why they had picked up a quarrel with his mother, an altercation broke out between the two sides. Accused No.3 is said to have assaulted the

complainant with a knife on the back of his neck and accused no.1 is said to have assaulted with a knife on his neck, right cheek and also near the left

eyebrow and accused no.4 had attacked the complainant using his hands threatening to take away his life. The said incident was witnessed by his

cousins Gajendra and Rajendra who pacified both sides and later took the complainant to T. Narasipura Government Hospital for treatment. Then, a

complaint came to be filed by the complainant with the police, who registered a case against the accused and on conducting investigation, filed a

charge-sheet against all the accused persons for the alleged offences under Sections 504, 341, 323, 324 read with Section 34 IPC.

In order to establish the guilt of the accused, the prosecution in all examined witnesses PW-1 to PW-10 and marked several documents as Exhibits

P-1 to P-8. Exhibit D1 was also got marked apart from MO-1 to MO-4. Subsequent to recording incriminating statement under Section 313 Cr.P.C.,

the court below after hearing the arguments advanced by the prosecution and the defence counsel and on appreciating the entire evidence on record,

passed an order acquitting Accused No.4 but convicting Accused Nos.1 to 3 / appellants herein, for offences under Section 324 read with Section 34

IPC. It is this judgment which is under challenge in the present appeal.

Heard the learned counsel for the appellants / accused and the learned Government Pleader for the State.

The learned counsel for the appellants during the course of his arguments has taken me through the evidence of PW-2 and PW-7, wherein the Trial

Court has given credentiality to these witnesses as they are stated to be the eye-witnesses according to the prosecution theory. PW-3 is said to have

accompanied the injured near the house of Accused Nos.1 and 2 whereas the complaint has been filed by PW-1 as per Exhibit P-1. It has to be noted

that nowhere in the statement of the injured has he mentioned that he went along with his mother near the house of Accused Nos.1 and 2. It has to be

noted that he came out from his house at 8.00 p.m., after his mother informed about the quarrel that the accused persons had made with his mother.

Further, it is the contention of the learned counsel for the appellants that the wound certificate issued by the Doctor discloses the injuries to be

simple in nature whereas according to the complainant, the accused had assaulted him with knives and with hand. According to his theory, the injuries

ought to have been grievous in nature. Hence, the wound certificate is totally inconsistent with the evidence on record. On this ground also the

accused need to be acquitted of the offences alleged.

 The learned counsel for the appellants further submits that the judgment and order of conviction passed by the court below convicting the appellants

for the alleged offences is contrary to law, facts and evidence on record and the court below has proceeded to convict the accused even in spite of

the fact that the prosecution has failed to prove the guilt of the appellants beyond all reasonable doubt.

 The court below erred in not properly considering the fact that the appellants have been falsely implicated in respect of the alleged offences

because of previous ill-will and enmity. In that, the court below committed an error in not considering the fact that a case has been registered against

PW2, P.W.7 and one Mahesh in connection with the assault made against the appellant No.2 and in order to counterblast the said case, they have

instigated P.W.1 to register a false case against the appellants.

 Further, the court below has failed to notice that the I.O. has not recorded the statement of the neighbourers and the discrepancies in the evidence

of P.W.9 the Doctor creates doubts about the case of the prosecution. The court below erred in convicting the appellants in the absence of legally

acceptable and clinching evidence. Hence the judgment and order passed by the court below is improper, illegal and cannot be sustained in the eye of

law.

Per contra, learned Government Pleader for the State has supported the impugned judgment of conviction and sentence passed by the Trial Court

contending that the Trial Court has appreciated the entire evidence on record including the evidence of PW-1 the complainant, who was inflicted with

injuries by the accused persons as indicated in the Wound Certificate at Exhibit P-4 given by the Doctor PW-9. The Trial Court has appreciated the

evidence of PW-1, PW-9 the averments made in the complaint and also the evidence of PWs 2, 3 and 7 to arrive at the said conclusion that the

accused have been the cause for infliction of injuries, coupled with the evidence of PW-10 I.O. who laid the charge-sheet against the accused. All

these evidence has been appreciated by the Trial Court in a proper perspective and has rightly come to the conclusion and convicted accused nos.1 to

3 for the offences under Section 324 read with Section 34 IPC. Moreover, there is no perversity or absurdity to interfere with the judgment of

conviction and sentence held against them as these accused had assaulted the complainant and had caused injuries. On all these grounds as

emphatically urged by the learned HCGP for the State, he seeks for dismissal of the appeal by confirming the impugned judgment of conviction and

sentence held against this accused in S.C.No.176/2009 by its order dated 4.8.2010.

On hearing the learned counsel for the appellants and the learned Government Pleader for the State and on an examination of the material on

record, it is seen that PW-1 is the prime witness for the prosecution as he was the one who has given the statement of complaint while he was under

treatment in Government Hospital, T. Narasipura on 31.10.2008. The incident took place at about 8.00 p.m. in front of the house of the accused and

this injured was brought to the hospital at 9.30 p.m.

 The complainant had just gone to enquire as to why the accused persons had quarreled with his mother. As soon as they near the house of

Accused Nos.1 and 2 and enquired them, they had started assaulting the complainant with a knife and abusing him in filthy language. It is only on the

intervention of Gajendra and Rajendra who pacified both sides that the assault came to an end and subsequently the injured was taken to the

Government Hospital and provided treatment and thereby he had given a complaint as per Exhibit P-1. Based upon his complaint, Exhibit P-6 FIR

came to be recorded by the police. Then PW-10 the Investigating Officer laid a charge-sheet against the accused and conducted a spot mahazar

Exhibit P-2 in the presence of PW-6 and PW-7. PW-9 is the Doctor who treated the injured and issued the wound certificate as per Exhibit P-4,

wherein he has stated in his evidence that on 31.10.2008 at about 9.30 p.m., Varadaraju PW-1 was brought by his uncle Mahadev to the hospital with

a history of assault and he was conscious and the Doctor found that there were five simple injuries and he issued the wound certificate as per Exhibit

P-1. Police came to the hospital and recorded the statement of the complainant as per Exhibit P-1 and the injured was referred to a Surgeon and an

Ophthalmologist to treat the injuries. This witness when subjected to cross-examination it was elicited that in the wound certificate that the name of

the person who brought the injured to the hospital is not mentioned. Further, it is not mentioned whether the patient was conscious or not and also the

age of the injury said to be inflicted over the injured is not mentioned. Moreover, the knife used in the commission of the injuries was also not sent by

the Investigating Officer. The prosecution relied upon the evidence of PW1 to 10 and out of that, PW1 is the injured and according to the prosecution,

P.W.2, 3 and 7 are the eye witnesses and P.W.4 is the father of the complainant and P.W.5 is the auto-driver, who took the injured to the hospital and

P.W.6 is the mahazar witness and P.W.8 is the W.P.C., who took the F.I.R. to the Court and P.W.9 is the Doctor and P.W.10 is the I.O. P.W.1 â€

complainant, in his evidence, has deposed that on the date of the alleged incident, he came from his land at around 08.00 p.m. and his father was not

there but his mother was there in the house and she revealed that A1 and A2 in connection with falling of coconut, had quarreled with her. On hearing

this, the complainant took his mother near the house of A2 â€" Bhattaiah and enquired them as to why they quarreled with his mother. At that time,

A1 and A2 were there near the house and they abused the complainant in filthy language and both of them held the complainant. A3 who was there

inside the house came with a knife and assaulted the complainant on his neck and near the left eye and also near the chest and the accused persons

holding him, assaulted with their hands and this incident was witnessed by PW-2 Gajendra and PW-7 Rajendra. Gajendra snatched the knife from the

accused and on account of inflicting injuries with knife, the complainant sustained bleeding injuries on the left side of his neck, near the left eye, on the

right cheek and also near the chest and there were two marks on the right side of his chest and he was wearing black shirt and towel and the same

was also blood stained. It is also his evidence that this incident was witnessed by him from the light of the street lamp. A3 and A4 were there in the

house of A1 and A2, who had come to attend a function in the house of A1 and A2.

 The house of the complainant’s grandmother and A2 â€" Bhattaiah were situated side by side. There was an ill-will between the family of the

complainant and the accused persons in connection with falling of coconut tree on the house of A2, due to which the altercation had taken place. The

complainant revealed about the incident to his father and his father took him to the T.Narasipura Govt. Hospital in an auto, and he was in-patient for

about one month. It is his further evidence that the Police came at around 12.00 a.m. in the midnight and recorded his statement as per Ex.P1 and he

signed on Ex.P1 and he identified the clothes which he was wearing at the time of assault as Mo1 and Mo2 and also identified the knifes which were

used for assault as Mo3 and Mo4.

On an examination of the records, I find that PWs 2, 3 and 7 were the eye-witnesses for the prosecution, but the evidence of PW-1 who is the

prime witness for the prosecution, is contrary to the evidence of these three witnesses. It is seen that there was an altercation with regard to a

coconut tree having fallen on the house of Accused No.2 and in fact, there was no motive to cause injuries to the complainant intentionally and I find

that the circumstances do not constitute an offence under Section 324 IPC as held by the court below. Moreover, the wound certificate issued by the

Doctor discloses that the injuries are simple in nature. If one goes by the statement of the complainant that two of the accused had assaulted him with

knives and another accused by hand, the injuries ought to have been grievous in nature. When the wound certificate discloses that the injuries are

simple in nature, it is very difficult to believe the statement of the complainant regarding the assault made by the accused in his complaint as well as

his evidence.

 The prosecution has examined several witnesses and given credentiality to the evidence of PW-2 to PW-7 and believing their evidence, the court

below has proceeded to convict the accused, which judgment requires to be interfered with by reappreciating the entire evidence on record, as the

ingredients of the offence has not been proved by the prosecution by placing cogent, corroborative and acceptable evidence to probabilise that the

accused had intentionally caused hurt to the complainant.

The altercation between the parties being trivial in nature, I find that the court below has not appreciated the evidence on record in a proper

perspective but has misdirected and misread the evidence of PW-1 the complainant and has come to a wrong conclusion and convicted the accused

under Section 324 read with Section 34 IPC. Hence, the judgment of the court below calls for interference.

Consequently, the appeal is hereby allowed by setting aside the impugned judgment of conviction and sentence held against Accused Nos.1 to 3

for offences under Section 324 read with Section 34 IPC and the accused are acquitted for the charges levelled against them.

 If any fine amount has been deposited by these accused, the same shall be refunded to them, on proper identification.