Sri Karibasava vs The State of Karnataka

N. Ananda, J.—The appellant (hereinafter referred to as ''accused'') was tried for offences punishable under sections 307 & 379 IPC. The learned trial Judge has convicted accused for an offence punishable u/s 307 IPC and acquitted accused for an offence punishable u/s 379 IPC. Therefore, he is before this court. The accused is on bail. The learned counsel for appellant is absent. I have heard Sri M. Narayana Reddy, learned SPP for State.

In Criminal Appeal No. 1680/2013 dated 07.10.2013 (in the case of Surya Baksh Singh v. State of Uttar Pradesh), the Supreme Court has held:--

(a) That the High Court cannot dismiss an appeal for non-prosecution simpliciter without examining the merits; (b) That the Court is not bound to adjourn the matter if both the Appellant or his counsel/lawyer are absent; (c) That the Court may, as a matter of prudence or indulgence, adjourn the matter but it is not bound to do so; (d) That it can dispose of the appeal after perusing the record and judgment of the trial court. (e) That if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the Appellant-accused if his lawyer is not present, and if the lawyer is absent and the court deems it appropriate to appoint a lawyer at the State expense to assist it, nothing in law would preclude the court from doing so; and (f) That if the case is decided on merits in the absence of the Appellant, the higher court can remedy the situation.

In view of what has been held in the above decision, I have taken up this appeal for consideration on merits.

In brief, the case of prosecution is as follows:--

The accused-Karibasava, injured-H. Parashurama (PW2), PW1-Jyothi, PW3-Munna, PW4-Prakash and PW5-Mohammad Rafeeq are natives of Gollarahatti Village, Jagalur Taluk, Davanagere District. The accused and prosecution witnesses namely PW1, PW3 to PW5 had come to Bangalore to work as masons and they were residing in a temporary shed in Dasarahalli, within jurisdiction of Hebbal Police Station, Bangalore. The accused had borrowed a sum of Rs. 25,000/- from PW2. Therefore, PW2 had come to Bangalore in search of accused to recover money from him. PW2 had come to Bangalore along with one Rakesh on 15.09.2004. The accused and other witnesses were working under a ministry by name Zakir. PW2 contacted Zakir and learnt that accused and other witnesses are staying in a shed (room). One Lokesh took PW2 to a room where accused and other witnesses were living; PW2 met accused and demanded him to repay money. The witnesses namely PW1- Jyothi & PW4-Prakash were due in a sum of Rs. 4,000/- and Rs. 2,500/- respectively to PW2. On 15.09.2004 at about 11.30 p.m. or 12 midnight, PW2 went to room, where accused, PW1, PW3, PW4, PW5, one Ismail and Afzar were staying and PW2 stayed in that room. On the following day i.e., 16.09.2004, accused and others went to attend their work. PW2 stayed in the room. On 17.09.2004, accused did not go to work. The accused and PW2 went near Kempapura Tank and returned back. On 17.09.2004, PW2 demanded accused to repay him a sum of Rs. 25,000/-. PW2 told accused if it is not possible for him to pay the amount of Rs. 25,000/- in lumpsum, he should repay the amount in instalments; it was 8.30 p.m. by then, PW2 told accused that he would be returning to his village on the following day and that after returning to his village, PW2 would demand parents of accused to repay money which the accused owed to PW2; thereafter, PW1 to PW4 and one Mohan slept in the kitchen of room. The accused, one Afzar, Ismail and PW5 slept in adjacent room. There was a bifurcating wall between room and kitchen. During intervening night of 17/18.09.2004 at about 1.30 a.m., PW2 received a blow on his right ear and jaw; PW2 woke up and saw accused was standing by his side, holding a hammer. PW2 lost consciousness and he was shifted to Bowring Hospital and later he was shifted to Victoria Hospital at Bangalore. The first information was lodged by PW1; When PW2 checked his pocket in hospital, he found that a sum of Rs. 3,000/-, which was in possession of PW2 and his wrist watch were missing. After investigation, final report was filed against accused for aforestated offences.

The defence of accused is one of total denial.

As already stated, accused has been acquitted of an offence punishable u/s 379 IPC, against which State has not filed an appeal. Therefore, the following points would arise for determination:--

(i) Whether prosecution has proved that during intervening night of 17/18.09.2004 at about 1.30 a.m., in a temporary shed situate in Kempapura Dasarahalli Village, within jurisdiction of Hebbal Police Station, accused assaulted PW2 with a hammer with such intention and knowledge by such acts if he had caused death of PW2, he would have been held guilty of an offence punishable u/s 302 IPC and thereby committed an offence punishable u/s 307 IPC?

(ii) Whether learned trial Judge has properly appreciated evidence on record?

(iii) Whether impugned judgment calls for interference?

(iv) To what order?

The prosecution has relied on the following:--

(i) Motive;

(ii) Eye-witness account of injured witness (PW2) and other eye-witnesses namely PW1, PW3 to PW5.

(iii) The medical evidence of PW9-Dr. Jayaprakash and PW10-Dr. Ramesh

(iv) Recovery of incriminating articles

(v) Conduct of accused

PW2-H. Parashuram has deposed; at the relevant time, he had come to Bangalore to recover a sum of Rs. 25,000/- from accused, which the accused was due to PW2; accused assaulted PW2 with a hammer during intervening night of 17/18.09.2004. PW2 has deposed about treatment taken by him in Bowring Hospital and Victoria Hospital at Bangalore.

From the tenor of cross-examination of PW2, we find that accused has not denied that PW2 had suffered injuries during intervening night of 17/18.09.2004 in temporary shed, which was in occupation of accused and other witnesses. On the other hand, the accused from cross-examination of PW2 has sought to establish that PW2 was assaulted by witnesses namely PW1, PW3 & PW4 and accused has been falsely implicated.

We find from evidence of PW9-Dr. Jayaprakash and PW10-Dr. Ramesh, at the first instance, PW2 was treated in Bowring Hospital and later in Victoria Hospital at Bangalore.

At the relevant time, PW9-Dr. Jayaprakash was working as a Resident Medical Officer in Bowring Hospital. PW9 has deposed; on 18.09.2004 at about 5.25 a.m., a police constable of Hebbal Police Station brought one Parashuram with history of injuries that he was assaulted by one Karibasava (accused) with a hammer at about 1.30 a.m. on 18.09.2004. PW9 found that PW2 had suffered following injuries:--

I. Swelling on right half of face;

II. Laceration measuring 3 cms x 1 cm behind right ear;

III. Bleeding from right ear.

PW9 has deposed that he had referred injured (PW2) to ENT Department of/Victoria Hospital at Bangalore.

During cross-examination, nothing has been elicited to discredit evidence of PW9.

At the relevant time, PW10-Dr. Ramesh was working as a Casualty Medical Officer in Victoria Hospital. PW10 has deposed; on 18.09.2004 at about 3.20 p.m., he examined injured (PW2) and found following injuries:--

I. Tenderness present on left maxillary and mandibular region; unable to open mouth

II. Right ear bleeding and swelling

III. A lacerated cut wound measuring 3 cms x 1 cm below right eye

During cross-examination, it was hypothetically suggested to PW10 that injuries found on PW2 could be caused if a person meets with an accident or violently falls on a rough surface. The evidence on record does not indicate that PW2 had met with an accident and thereafter he had violently fallen on a rough surface.

The evidence of injured witness (PW2) finds substantial corroboration from medical evidence.

The law is fairly well settled that injured persons would be least disposed to spare real assailants to substitute the accused. The evidence on record does not indicate that PW2 had any motive to falsely implicate the accused. The evidence of PW2 that he had come from Jagalur Taluk, Davanagere District to recover money from accused has not been controverted. The accused has sought to establish that he had borrowed money from one Prakash, maternal cousin of PW2 and accused had received money from chit fund and accused had executed a promissory note. It was also suggested to PW2 that he was working as a recovery agent for said Prakash. Even these suggestions would lead to an inference that PW2 had come to Bangalore to recover money from accused. Therefore, there are no reasons to suspect evidence of PW2 (injured witness).

PW1-Jyothi, PW3-Munna, PW4-Prakash and PW5-Mohammad Rafi had witnessed incident of assault. These witnesses have given consistent version that accused assaulted PW2 with a hammer during intervening night of 17/18.09.2004 at 1 a.m., in a temporary shed in which they were residing. They have deposed that PW2, in order to recover money from accused had come from Jagalur to Bangalore.

PW1-Jyothi has deposed; when they questioned the accused as to why accused had assaulted PW2, accused retorted that PW2 was pestering him to repay loan; when PW1 and other witnesses asked the accused to accompany them to shift PW2 to hospital, accused refused to accompany them; accused had already taken a sum of Rs. 3,000/- which was in possession of PW2. The accused suggested to PW1 and other witnesses to throw PW2 into underground gutter; PW1 and other witnesses tied a cloth around neck and head of PW2 to prevent bleeding and reached Nagawara police station to inform the matter, who in turn directed them to lodge first information with Hebbal Police Station; they came to Dasarahalli circle; PW1 had lodged first information as per Ex. P.1.

During cross-examination, it was suggested to PW1 that PW1, PW3 to PW5 had assaulted PW2 and falsely implicated accused.

The evidence of PW1 that PW1 & PW3 to PW5 shifted PW2 to hospital has not been controverted. It is also not in dispute that PW1 lodged first information as per Ex. P.1. Therefore, defence version that PW1, PW3 to PW5 had assaulted PW2 to falsely implicate the accused is totally untenable.

The evidence of PW3, PW4 & PW5, who had witnessed incident of assault, is more or less similar to evidence of PW1.

The learned counsel for accused has suggested to these witnesses that PW1, PW3 to PW5 are real assailants and they had falsely implicated accused.

In the discussion made supra, I have held that such defence is totally untenable.

The subsequent conduct of accused would lend corroboration to evidence of injured witness and also eye- witnesses.

At the relevant time, PW11-Srinivasa Shetty was ASI of Hebbal Police Station. PW11 has deposed; on 20.11.2004 at about 8.30 a.m., accused surrendered before police station; PW11 informed the matter to Police Inspector; accused was arrested and he was produced before jurisdictional court.

The accused has not offered any explanation for surrendering before jurisdictional police; on the other hand, accused has sought to establish that police arrested him from his native place and produced him before the committal Magistrate. The order sheet maintained by committal Magistrate would reveal that on 20.11.2004, accused was produced before committal Magistrate and he was remanded to judicial custody till 04.12.2004. When inquired by the committal Magistrate, accused has stated that he was arrested at about 8.30 a.m. on 20.11.2004. Therefore, defence of accused that he was arrested in his native place at Jagalur Taluk, Davanagere District, which is at a distance of 250 kilometers from Bangalore cannot be accepted.

At the relevant time, PW13-K.B. Basavarajaiah was working as PSI of Hebbal Police Station. PW13 has deposed; when they were on patrolling duty, they learnt about incident near Sapthagiri Building; they proceeded to site No. 7, 5th Cross, Maruthi Extension, Dasarahalli; PW2 had suffered injuries and he was lying in a shed; PW2 had suffered grievous injuries on right ear; they learnt that PW2 was assaulted by one person (accused); PW13 shifted injured to Bowring Hospital and later PW2 was referred to NIMHANS; from NIMHANS, PW2 was referred to Victoria Hospital; on the same day i.e., 18.09.2004, PW1-Jyothi gave a statement (first information), on the basis of which PW13 registered a case against accused for aforestated offences; PW13 inspected place of incident and seized a blood stained hammer, a blood stained plastic mat and two plastic bags; PW13 recorded statements of witnesses.

During cross-examination, certain minor discrepancies in evidence of PW13 with reference to statements recorded u/s 161 Cr.P.C. have been brought on record. In my considered opinion, such minor discrepancies would often occur in every criminal trial due to lapse of memory of witnesses, even otherwise, these minor discrepancies do not detract credibility of evidence adduced by prosecution.

PW14-Nayaz, has given evidence relating to construction of a compound wall by the accused and other witnesses. PW14 has deposed; he was the owner of site No. 9 of Maruthi extension; during September 2004, he was constructing a compound wall; he had engaged services of accused, PW3 and 5 to 6 person''s; they are natives of Jagalur Taluk. The accused and other witnesses were residing in a room (temporary shed) in the site of PW14; on 18.09.2004, he was. informed by Munna (PW3) that accused had assaulted PW2 in connection with some financial matter; PW14 has deposed that PW2 was not working with PW14; PW14 had gone to NIMHANS and saw PW2; PW2 had come to Bangalore two days prior to date of incident.

During cross-examination, PW14 has deposed that he does not know the names of other witnesses. PW14 has denied suggestion that he had given the name of accused at the instance of police.

At this juncture, it is necessary to state that PW14 had no grudge against accuse. The accused had been engaged by PW14 to construct a compound wall. Therefore, defence theory that PW14 had falsely implicated accused cannot be accepted.

Thus, on re-appreciation of evidence, I find that prosecution through direct evidence of injured witness (PW2) and other eye-witnesses; medical evidence; conduct of accused and evidence of Investigating Officer has proved charges framed against accused.

The accused had repeatedly assaulted on maxillary and mandibular region of PW2 with a hammer (a heavy object). The accused was aware that if PW2 had died due to assault by accused, he would have been held guilty of an offence punishable u/s 302 IPC. The time at which weapon was wielded by accused and background of incident and subsequent conduct of accused in instigating other inmates of room (PW1, PW3 to PW5) to shift PW2 and throw PW2 (injured) into a gutter would demonstrate that accused had necessary mens rea to commit an offence punishable u/s 307 IPC.

The learned trial Judge has sentenced accused to undergo simple imprisonment for four years and pay fine of Rs. 5,000/-, in default to undergo simple imprisonment for one year for an offence punishable u/s 307 IPC.

Considering the background of offence and conduct of accused before and after the incident, the sentence imposed by trial court cannot be termed as severe. In the result, I pass the following:--

ORDER

The appeal is dismissed.