Siddaraju @ Minaka vs State

Subhash B. Adi

Appeal by the accused against the judgment of conviction in S.C. No. 167/2008 dated 21st October 2005 on the file of Fast Track Court at Ramanagaram.

Accused was charge-sheeted and tried for an offence punishable u/s 307 of the Indian Penal Code.

Case of the prosecution was that the injured complainant - PW-8, his father PW-5 and the accused were all working as coolies in the house of PW-6. PW-10 is the niece of PW-6. She used to cake food to the coolies. On 21.3.2003 at about 8.00 p.m., PW-8 was feeding the silk worms with mulberry leaves at that time, the accused came and told that PW-8 is feeding mulberry leaves to the silk worms along with his "Mrs.''". FW-8 was not aware of the meaning of "Mrs.", he enquired with PW-10. PW-10 told the meaning of "Mrs." as "wife". in this regard, PW-8 went and picked up a quarrel with the accused. On the very same night, accuse called PW-8 to accompany him to attend the nature call, though PW-8 refused, but at the instance of PW-6. he went along with the accused, where accused assaulted PW-8 with the chopper used for cutting the mulberry plants. He sustained grievous injury and became unconscious. On the next day morning at 6.00 a.m. when he became conscious, he went to the Government Hospital, Ramanagaram at 8.00 a.m. on 22.3.2003 where PW-9 examined PW-8 at 8.30 a m. and sent the information to Ramanagaram Police. PW-7. the then P.S.I., who got the information at about 10.00 a.m., went to the hospital, recorded the statement of the PW-8 in the presence of the Doctor, came back to the Police Station and registered the case in Crime No. 11/2003 on the basis of Ex.P1 -complaint and sent the FIR to the jurisdictional Magistrate. Thereafter he recorded the statement of PW-5, PW-6 and PW-10 and on the next day, he arrested the accused, recorded the voluntary statement and based on voluntary statement, he also recovered the chopper. On completion of the investigation. PW-7 filed the charge sheet.

On committal, the accused was brought before the Sessions Judge, Ramanagaram and the Sessions Court framed the charge for an offence punishable u/s 307 of IPC as under:

That on 21.03.2003, at about 10.00 P.M. in a village Channamanahalli, within the limits of Izoor Police Station, you the accused assaulted CW-Ravi S/o Shivamahadevaiah, with a knife used for cutting mulberry leaves, on his head, left arm. both the shoulders and caused grievous bleeding injuries on his person with such intention and under such Circumstances that if by that act you had caused the death of the said CW1 Ravi. you would have been guilty of murder and you thereby committed an offence punishable u/s 307 of the Indian Penal Code and within my cognizances.

Accused pleaded not guilty and claimed to be tried;

The prosecution to prove the charge examined PWs-1 to 10, marked Exs.P1 to P8 and produced M.Os.1 to 6. On the defence side, portion of the statement of PW-3 was marked as Ex.D1.

The trial, court on appreciation of the evidence convicted the accused for an offence punishable u/s 307 of IPC, by observing that, the evidence of PW-8, the injured is credible and is supported by PW-9 - Doctor and the circumstantial evidence of PW-6, PW-10 and PW-5 and accordingly, the accused was sentenced with 7 years'' R.I. with fine of Rs. 5,000/- in default, to undergo further R.I. for one year. As against the said judgment of conviction, accused is before this Court.

Heard Sri. K.R. Anantha Murthy. learned Counsel for the accused and Sri. Srinivasa Reddy, learned Government Pleader Tor the State.

PW-8 is the injured. In his statement as per Ex.P1. he has stated that, on 21.3.2003. he was working in the house of PW-6. He was feeding mulberry leaves to the silk worms, at that time, accused came and told that, PW-8 is feeding mulberry leaves along with his "Mrs." since he was not knowing the meaning of word "Mrs.", he asked PW-10 and PW-10 told that the meaning of "Mrs." is wife In this regard, he quarreled with the accused, as PW-10 was the niece of his employer. On the very same day, accused called and took him to attend the nature call where he assaulted with the chopper used for getting the mulberry plants. He has stated that, he became unconscious till the next day morning 6 o''clock and at 7.30 a m., he went, to the hospital.

In the evidence,PW-8 has also consistently stated that, he was assaulted by the accused. PW-6 - employer has also admitted that, PW-5 - father of PW-8, accused and PW-8 -injured were working as coolies in his house. This is also supported by the evidence of PW-10 - the niece of PW-6, who has also stated that, PW-8 had asked her the meaning of the word "Mrs."

PW-9 - Doctor in his evidence has stated that. PW-8 came to his hospital at 8.00 a.m. on 22.3.2003. He had given the history of assault by the use of knife. PW-8 was brought by his father PW-5. PW-9 has found eight injuries on the body of PW-8 and amongst eight injuries, he found that injury Nos. 1 and 2 were grievous in nature. He also stated that, M.O.4-knife could cause injury Nos.1 to 7. In the cross-examination, he has admitted that. PW-8 had informed him that the accused assaulted and he had given the name of the accused also.

PW-7 - the Investigating Officer has corroborated the evidence of PW-9. He has stated that he received the information from the hospital and immediately he went to the hospital and recorded the statement of PW-8. In the cross-examination of PW-8, nothing has been elicited nor there is anything to disbelieve the evidence of PW-8, PW-8 is injured, the same is supported by the evidence of PWs-7 and 9 and the circumstantial witnesses viz. PW-6 and PW-10 have also supported the case of the prosecution, which also shows that. PWs-5. 8 and accused were working as coolies and PW-8 immediately goes to the hospital for treatment clearly proves that, the accused assaulted PW-8 with the chopper and the injuries are grievous in nature. Injury Nos. 1 and 2 are cut injury measuring 21/2"x2"x1" at the left dorsum of the wrist. There is a fracture of left metacarpal bone of the hand, hand is hanging, all the tendons were cut; there is chopped injur, of the right middle finger, the distal pharynx is fractured and was hanging with a tiny skin tag. These two injuries are not only fractures, but they are also grievous injuries. The other injuries are simple in nature. Though PW-9 has been cross-examined, nothing has been elicited in his cross-examination to disbelieve his evidence. When there is direct evidence led by the prosecution, which is credible, and acceptable and he being an injured and there is no dispute as regard to the identity of the accused, in my opinion, the trial court on proper appreciation of the evidence, has held that the accused had assaulted PW-8.

Though the trial court has found that the accused has assaulted with the chopper and held that the accused had intended to take away the life of PW-8 and convicted the accused for an offence punishable u/s 307 of IPC. but the injuries referred to by PW-9 are as under:

A cut injury measuring 21/2"x2"x1" at the left dorsum of the wrist. There is fracture of the left metacarpal bone. The hand is hanging. All the tendons were cut.

There is chopped injury of the right middle finger. The distal pharynx is fractured and. was hanging with a tiny skin tag.

There is incised wound at the right middle finger measuring 1/2"x1/2"1/2" blood, clots were present.

One incised wound measuring 2''x2"x1/2" at the middle of the forehead.

One lacerated injury measuring 21/2"x2"x1" at the left lateral aspect of the calvaria. Blood clots present and it was bone deep.

A cut injury measuring 2"x1 "1/2" at the back side of the left ear.

A cut injury measuring 2"x2"x1" at the right frontal area.

A contusion measuring 2"x2"1" at the left gluteal region.

From amongst these injuries only two injuries are stated to be grievous in nature. Both the grievous injuries are not on the vital pan of PW 8. No doubt, there are other injuries on the right frontal area, left gluteal region and left ear. but none of these injuries are stated to be grievous in nature. If the accused intended to take away the life of PW-8 and when he had a chopper in his hand, he definitely could have assaulted on the vital part of the body causing grievous injury or would have caused death, but the grievous injuries caused being on non-vital part of the body, the finding of the trial court that the accused had committed an offence punishable u/s 307 of IPC is not well-founded, no doubt, the accused has assaulted PW-8. but the injury does not suggest that the accused intended to take away the life of PW-8.

Hence, in my opinion, the evidence proves that, the accused had assaulted with a deadly weapon, like a chopper on non-vital part of the body of PW-8, causing grievous injury and in these circumstances, this evidence proves that the accused has committed an offence punishable u/s 326 of IPC. Accordingly. I pass the following;

ORDER

The appeal is partly allowed. The judgment of conviction for an offence punishable u/s 307 of IPC is hereby set aside, however the accused is convicted for an offence punishable u/s 326 of IPC.

For an offence punishable u/s 326 of IPC, the accused could be sentenced for ten years or even for life. Since it is not a case where the accused tried to take away the life of injured and there is no strong motive alleged, considering these circumstances, I find that the accused could be sentenced to undergo R.1. for a period of three years with fine of Rs. 5,000/-, in default, to undergo further sentence of six months'' S.I. Accused is directed to surrender before the trial court, in ease the accused fails to surrender, the trial court shall take immediate steps to secure the presence of accused and commit him to the prison to serve the remaining sentence. The accused is entitled for set off for the period for which he had already undergone as pretrial detention or conviction. The ball bond stands cancelled.