Sri Dayananda @ Deepak Gowda, Sri Manikantha @ Manikanthegowda, Sri Shivananjegowda and Sri Dinesh vs The State of Karnataka

A.S. Pachhapure, J.—The appellants have challenged their conviction and sentence for the charges punishable under Sections 326, 324 r/w

34 IPC on a trial held by the Fast Track Court at Hassan. The facts relevant for the purpose of this appeal are as under:

Appellants 1 and 2 are the sons of appellant No. 3, whereas, appellant No. 4 is his son-in-law. PW 6 - Somashekar is the elder brother of PW 4

and the younger brother of accused No. 3. Earlier to the incident in question, the house of PW 6 Somashekar was damaged by accused No. 3

and in a complaint of that incident PW 4 was a witness and had deposed against accused No. 3. On 17.1.2007 at about 6.30 p.m. PW 4

Devarajegowda with his wife PW 5 Radha were returning to their house. When they were in front of the house of one Shamanna, the accused

(appellants herein) in furtherance of their common intention intercepted PWs. 4 and 5 and accused Nos. 1 and 2 assaulted PW 4 with a chopper,

whereas, accused No. 3 assaulted PW 5 Radha. PW 4 to avoid the first blow of accused No. 2 which was aimed on the head, moved his head

and thereby the blow fell on the right palm. Accused No. 4 is said to have assaulted PW 4 with the stone. He escaped and he did not sustain any

injury. At the intervention of PWs. 7 and 8, the accused left assault and went away. Injured PWs. 4 and 5 were taken to the hospital and PW 4

while under treatment submitted his complaint (Ex. P3) to PW 14 the Head Constable and it came to be registered in Crime No. 7/2007 for the

offence under Sections 341, 307 r/w 34 IPC. The FIR was sent to the Magistrate. PW 14 went to the spot and held the spot mahazar Ex. P1 and

at that time seized MOs. 5, 8 and 9. The statement of the witnesses were recorded during further investigation by PW 19. PW 3, PW 18 and

others apprehended the accused and produced before PW 19. On the interrogation, the accused volunteered to produce the weapons and MOs.

1, 3 and 4 (choppers) were seized at the instance of accused Nos. 1, 2 and 3. The clothes of the injured were produced and they were seized

under a mahazar. The seized articles were sent to the opinion of the experts. PW 4 the injured was treated by PWs. 15, 16 and 17. The injury

certificates of both the injured were secured. On completion of investigation, a charge sheet was laid against the accused for the offence punishable

under Sections 341, 324, 307 r/w 34 IPC.

During the trial the prosecution examined PWs. 1 to 19, got marked the documents Exs. P1 to P19 and MOs. 1 to 10. The statement of the

accused were recorded u/s 313 Cr.P.C. No defence evidence was led. The trial Court after hearing the counsel for the parties and on appreciation

of the material on record convicted the appellants for the charge under Sections 326, 324 r/w 34 IPC and for the offence u/s 326 IPC they were

ordered to undergo rigorous imprisonment for five years and to pay fine of Rs. 1,000/- each with default sentence, whereas, for the offence u/s

324 IPC, they were ordered to undergo rigorous imprisonment for one year and to pay fine of Rs. 500/- each with default sentence. Aggrieved by

the conviction and sentence, the present appeal is filed.

I have heard the learned counsel for the appellants and also the learned High Court Government Pleader.

The point that arises for my consideration is;

Whether the appellants have made out any grounds to warrant interference in their conviction for the offence under Sections 326, 324 r/w 34 IPC?

It is the contention of the learned counsel for the appellants that except the interested and related witness, the independent witnesses have not

supported the case of the prosecution and the trial Court committed an error in accepting the evidence of the relatives and the injured. It is also his

submission that the evidence of the injured and relatives is not consistent and as there are material contradictions in their evidence he submits that

the version of the prosecution ought to have been disbelieved. He also contends that, the medical evidence does not corroborates the ocular

evidence. Hence, he would submit that the appellants are entitled for an order of acquittal by setting aside the conviction and sentence ordered.

On the other hand, learned High Court Government Pleader supporting the judgment and order of the trial Court contends that the evidence of

the injured is consistent, cogent and trustworthy and there are no reasons to disbelieve the evidence of these witnesses as it is materially

corroborated by the medical evidence.

So far as the motive that has been put-forth by the prosecution is concerned, there appears to be no serious dispute. The house of PW 6 was

damaged at the instance of appellant No. 3 (accused No. 3) and in the complaint lodged PW 4 was a witness who deposed against the said

accused. With this intention in their mind, the appellants said to have caused the assault on PWs. 4 and 5.

PWs. 7 and 8 are the independent witnesses examined by the prosecution and they have not supported the prosecution version. PW 13

Jayamma is the wife of PW 6 Somashekar and she is one amongst those relatives who supported the case of the prosecution. It is in the evidence

of PW 4 that on the date of the incident the accused in furtherance of their common intention intercepted him on the way to his house and accused

Nos. 1, 2 and 4 were armed with choppers and accused No. 1 gave a blow with the chopper on the head and while PW 4 escaped the said blow,

it had fell on his right palm causing grievous injury. Accused Nos. 2 and 4 also assaulted PW 4 with the chopper, whereas, it is accused No. 3

assaulted PW 5 with the chopper. Though PW 4 states in his evidence about a single blow by each of the accused, there appears to be some

inconsistency in the evidence of PW 5, as she states before the Court that the accused gave two blows each. It is the evidence of the said injured

who actually was assaulted by the accused has to be given importance, as PW 5 may not have that opportunity to see the assault by the accused

on PW 4. So far as the assault is concerned, there is corroboration of the evidence of PW 4 by PW 5. So far as the role of accused No. 4 is

concerned, he threw a stone on PW 4, but it did not hit him and he escaped it. In fact there is no corresponding injury to PW 4 with regard to the

assault of accused No. 4 with the stone. This evidence of PWs. 4 and 5 is corroborated by the evidence of PW 13 Jayamma wife of PW 6 and

also PW 6 the elder brother of PW 4. They were also present at the place of the incident at the time of the assault.

In the context of this ocular evidence, if the medical evidence led by the prosecution is perused, PW 2 Dr. Krishnegowda has treated PW 5 and

issued injury certificate Ex. P2, whereas, PW 4 was treated by PWs. 15, 16 and 17 and the injury certificate has been produced at Ex. P12.

Perusal of the injury certificate of PW 5 reveals that she sustained simple injuries and she was before the doctor with the history of assault,

whereas, PW 4 has sustained as many as four injuries, amongst which, injury No. 1 is grievous and the rest are simple. At the time when PW 16

examined PW 4, injury No. 1 was a sutured wound, whereas, injuries 2 and 3 are the cut wounds and injury No. 4 is an abrasion. Perusal of the

injuries suffered by PW 4 and PW 5 reveals that such injuries could be caused by a weapon like MOs. 3 and 4 (choppers). Doctor in his evidence

has deposed that these injuries could be caused by the aforesaid choppers. Though PW 4 has suffered an abrasion, those abrasion could be

caused even by a chopper and perusal of the evidence of the doctors reveal that the medical evidence corroborates the evidence of the injured.

There is no reason to disbelieve the evidence of the aforesaid doctors.

An injured does not implicate an innocent and does not leave a person who has really caused the harm. Under this principle, if the evidence of

the injured and the relatives is looked into, in the context of the medical evidence there appears to be no reason to disbelieve the version of the

prosecution. Mere fact that the independent witnesses have not supported the version of the prosecution, itself is not a ground to reject the

evidence of the interested witnesses. The evidence of the injured when corroborated by the medical evidence itself is sufficient to base the

conviction.

So far as the recovery of the choppers and the seizure, attesting witnesses have not supported the case of the prosecution. Recovery is a weak

type of evidence and even in the absence of recovery, the evidence of the injured could be accepted.

It is relevant to note that the grievous injury was caused by accused No. 1 when he gave a blow with the chopper on the head of PW 4 and it

fell on the right palm thereby cutting the tendons and the nerves of the fingers. Therefore, it is grievous injury and caused by accused No. 1. The

other accused are not responsible for causing a grievous injury and they cannot share a common intention in causing the grievous injury with

accused No. 1.

As to whether accused No. 1 could have caused the grievous injury or not, will not be within the knowledge of the other accused. Therefore,

there cannot be said that they have shared a common intention in causing the grievous injury. Hence, the conviction of accused Nos. 2 to 4 for the

offence u/s 326 IPC is improper and erroneous. The appellant No. 1 (accused No. 1) alone is responsible for the offence u/s 326 IPC.

As the other accused have shared common intention in causing simple injury, they are responsible for the offence u/s 324 r/w 34 IPC.

So far as the sentence is concerned, though it is contended that the first appellant is a young boy aged 23 years, that itself is not a ground to

reduce the sentence to the minimum. Taking into consideration the nature of the offence, punishment provided, the reasonable sentence is

necessary so as to send a message to prevent the crime. In the result, the appeal is allowed in part. The conviction of the appellants No. 2 to 4

(accused Nos. 2 to 4) for the offence punishable u/s 326 r/w 34 IPC is set aside and they are acquitted of the said charge.

Conviction of the first appellant (accused No. 1) for the offence u/s 326 IPC is affirmed.

The conviction of the appellants No. 2 to 4 (accused Nos. 2 to 4) for the charge under Sections 324 r/w 34 IPC is affirmed and the sentence is

modified.

The appellant No. 1 (accused No. 1) is ordered to undergo rigorous imprisonment for two years and to pay fine as ordered by the trial Court with

the default sentence for the offence u/s 326 IPC.

For the offence u/s 324 r/w 34 IPC, the appellants No. 2 to 4 (accused Nos. 2 to 4) are ordered to undergo rigorous imprisonment for one year

and to pay fine as ordered by the trial Court with the default sentence.

Both the sentences to run concurrently.

The appellants are entitled to set off u/s 428 Cr.P.C.