Sri Laxmana vs The State of Karnataka

K.N. Keshavanarayana, J.—This appeal by the sole accused in S.C. No. 78/2004 on the file of the Sessions Judge, Kodagu, Madikeri, is directed against the judgment and order dated 17.08.2007 convicting him for the offences punishable under Sections 324 and 325 of IPC, and sentencing him to pay fine of Rs. 1,000/- for the offence punishable u/s 324 of IPC, and to undergo Simple Imprisonment for 2 years and to pay fine of Rs. 2,000/-for the offence punishable u/s 325 of IPC.

Appellant was chargesheeted by the Sub-Inspector of Police (Law & Order), Somwarpet, for the offences punishable under Sections 307 and 324 of IPC inter alia alleging that, on 25.11.2001 at about 8.00 p.m., near the Bore-well situated in T.M.C. Colony, Somwarpet, the accused for no reason picked-up quarrel with PW. 1 - Mahalingamma, W/o. Hanumantha and voluntarily caused grievous hurt to her by assaulting her with a club on the chest and on the head and kicked on her chest and thereby caused grievous hurt and that when PW.2-Bheemaiah came there to the rescue of PW.1, he was also assaulted by the accused with the same club on the head causing him hurt, and thus, the accused has committed the aforesaid offences.

The accused pleaded not guilty for the charges levelled against him. During the trial, to bring home the guilt of the accused, the prosecution examined the complainant-Mahalingamma as PW.1, other injured eye-witness namely, Bheemaiah as PW.2, Hanumantha, the husband of the complainant, as PW.3, two more witnesses, who were stated to be eye-witnesses to the incident, as PWs. 4 & 5, a witness to spot mahazar as PW.6, and the Doctor, who treated the victims, as PW.7, and marked Exs. P1 to P9.

The appellant/accused during the examination u/s 313 of Cr.P.C, denied all the incriminating circumstances appearing against him in the evidence of prosecution witnesses. The accused did not choose to lead any defence evidence. The defence of the accused was one of total denial and that of false implication.

The learned Sessions Judge on appreciation of oral and documentary evidence, by the judgment under appeal, held the appellant/accused guilty of the offences punishable under Sections 324 and 325 of IPC and accordingly, convicted the accused for the said offences and sentenced him to undergo imprisonment and to pay fine, as noted earlier. Being aggrieved by the said judgment of conviction and order of sentence, the accused has presented this appeal.

I have heard Sri. Mohan, learned Counsel appearing for the appellant/accused and Sri. B. Balakrishna, learned HCGP, appearing for the Respondent/State, and perused the records and the judgment under appeal.

Learned Counsel for the appellant vehemently contended that the judgment under appeal is perverse, illegal and contrary to the evidence, inasmuch as the learned Sessions Judge has failed to see that apart from self-serving and interested testimony of PWs. 1 & 3, who are husband and wife, there is no other independent evidence corroborating their testimony, and therefore, the learned Sessions Judge is not justified in recording conviction based on the self-serving and interested testimony of PWs. 1 & 3. It is also his submission that the medical evidence of PW.7 do not satisfactorily establish that PW. 1 suffered grievous hurt as the X-ray said to have been taken was not produced to establish the fracture of Ribs, and therefore, the learned Sessions Judge is not justified in holding that PW.1 had suffered grievous hurt. It is also his submission that since the alleged seizure of the club said to have been used in the commission of the offence from the scene 01 occurrence having not been proved and no opinion from the Doctor was obtained as to whether the injury found on PWs. 1 & 2 could be caused with the said weapon/Club, the learned Sessions Judge is not justified in holding that the accused is guilty of the offences alleged against him, therefore, the judgment under appeal suffers from illegality and perversity, as such, it is liable to be set aside and the appellant/accused is entitled to be acquitted.

On the other hand, the learned High Court Government Pleader sought to justify the judgment of the court below and further contended that, though the evidence of PWs.1 & 3 was not corroborated by other witnesses, the testimony of PWs. 1 & 3 itself is sufficient to establish the guilt of the accused and therefore, rightly the court below has placed reliance on the testimony of PWs. 1 & 3, and there is no error committed by the Court below in convicting the accused for the aforesaid offences. It is also his submission that merely because PWs.1 & 3 are closely related, their testimony cannot be disbelieved. He submits that PW. 1 being an injured eye-witness, her testimony deserves to be accepted unless it is shown that she has deliberately deposed falsehood before the Court by falsely implicating the accused. He submitted the evidence of PW. 1 with regard to the presence of the injury on her person is proved by medical evidence and about the incident, as stated by PWs. 1 & 3, even the hostile witnesses have supported to some extent, therefore, the learned Sessions Judge is right in placing reliance on the testimony of PWs. 1 & 3 for coming to the conclusion that the appellant/accused is guilty of the offences charged against him. He contended that the judgment under appeal do not suffer from any perversity or illegality and it is in accordance with the evidence on record, therefore, it does not call for interference by this Court.

I have bestowed my serious considerations to the submissions made on both sides and perused the judgment under appeal and the evidence on record.

In the case on hand, the Criminal Law was set on motion by the complaint of PW. 1-Mahalingamma as per Ex.P1. As could be seen from Ex.P1-Complaint, immediately after the incident, the injured was brought to the hospital and in the hospital, her statement was recorded between 10.00 and 11.00 p.m. on 05.11.2001 and based on the said recorded complaint, case in Crime No. 175/2001 for the offences punishable under Sections 324 and 307 of IPC, was registered against the appellant and investigation was taken-up.

According to the contents of Ex.P1, the incident occurred at about 8.00 p.m. near the Bore-well. Thus, the complaint has been lodged within about two hours from the time of the incident, as such, there was no delay in lodging the complaint. According to the contents of Ex.P1, at about 8.00 p.m. on that day, when the complainant came near the Bore-well to collect water, the appellant/accused came there and by accusing the complainant that she has quarreled with Honnuramma and by stating that he would kill her, assaulted her with club on the chest and head and kicked on her chest and at that time. Bheemaiah came there to her rescue and he was also assaulted with the same club by the accused on the head, and immediately the husband of the complainant and other neighbours came there, prevented the accused from further assaulting the complainant and at that juncture, the accused went away from the place by throwing the club there itself and thereafter, the injured were brought to the Government Hospital, Somwarpet. PW.7 is Dr. Krishnananda, who was working as a Senior Specialist and Medical Officer in Government Hospital at Somwarpet. According to PW.7, on 05.11.2001 at about 9.00 p.m., he examined PW.1 - Mahalingamma brought by her husband Hanumantna and Bheemaiah with a history of assault and on examination, he found,-

(i) Tenderness over scalp;

(ii) Tenderness over chest on left side, moreover, 3rd, 4th and 5th Ribs with presence of surgical emphysema (air under the skin);

(iii) Fracture of 3rd, 4th Ribs on the left side.

According to PW.7, the fracture was noticed by clinical examination and surgical emphysema was due to leakage of air from Lungs as a result of fracture of Ribs. According to him, the injured was admitted as inpatient on 05.11.2001 and discharged on 22.11.2001. The evidence further indicates that on the same day, he also examined Bheemaiah (PW.2), who was also brought with history of assault and on examination, he found depressed fracture of skull left parietal bone with surrounding hemotoma. According to his evidence, injuries found on both the persons were fresh. He has also stated that he intimated the police regarding the treatment to the injured persons as per Ex.P9. No doubt, in the cross-examination, it is elicited from PW.7 that he is not an Orthopedic Surgeon and he is basically pediatrician. Merely because PW.7 is not an Orthopedic Surgeon, it cannot be said that he could not give any opinion as to the nature of the injuries. PW.7 is basically a Doctor possessing basic decree in medicine and surgery. Therefore, he is competent to examine the injured and describe the injuries noticed on the person of the injured. According to PW.7, there was clinical fracture of 3rd & 4th Ribs on the left side of PW. 1 and depressed fracture of skull of PW.2. Therefore, non-production of the X-ray, if any, is not fatal to the case of the prosecution. On the other hand, in the cross-examination of PW.7, nothing is elicited to discredit his evidence regarding the presence of the injuries on the persons of PWs. 1 & 2, when they were examined in the hospital. Thus, from the evidence of PW.7 it is clearly established that, when they were brought to the hospital at about 9.40 or 9.50 p.m. on 05.11.2001, both PWs. 1 & 2 were having found sustained grievous injuries, PW. 1 in her oral evidence has reiterated her case as stated in the complaint. I have perused the cross-examination of PW. 1. There is absolutely nothing to discredit her evidence. PW.1 is an injured eye-witness; therefore, her evidence cannot be lightly brushed aside. There was no reason for the injured witnesses to falsely inculpate an innocent person by exculpating the real culprit. Absolutely, no circumstances are brought-out on record to indicate that PWs. 1 & 3 had any grouse against the accused or there had an Axe to grind against the accused and in that background the accused has been falsely implicated in the case. The defence of the accused was to the effect that near the Bore-well there was a quarrel between PW.1 and PW.5-Honnurarnma and at that time, PW. 1 was under the influence of alcohol, as a result, she fell down and consequently suffered injuries. Even from this defence of the accused, the presence of PW.1 near the Bore-well and she having sustained injuries near the Bore-well is admitted. The evidence of PW.2 indicates that on the date of the incident at about 7.30 or 8.00 p.m., when he was returning to his house after work, he saw galata near the Bore-well. However, according to him, when he was at a distance of 20 to 25 feet from the Bore-well, somebody pelted stone on him, as a result, he suffered injury on his head. Thus, PW.2 asserts that he suffered injury on the head and also he asserts that, there was galata near the Bore-well. Nevertheless, since PW.2 did not support the case of the prosecution with regard to the complicity of the accused, he was declared hostile and he was not cross-examined by the learned Public Prosecutor. The evidence of PW.2 read as a whole, clearly establishes that there was some galata near the Bore-well on that day and at the time of galata, he also sustained injuries and at the same time, PW.1-Mahalingamma also sustained injuries, for which, she was admitted in the hospital. PW.3 is the husband of PW.1. According to PW.3, on the date of the incident at about 8.00 p.m., when he was outside the house, he saw his wife and Honnuramma quarrelling and at that-time, the accused came from pete side and assaulted PW.1 with the club on the left portion of the head and Rib Cage and when PW.2 came there, he was also assaulted by the accused with the same club and thereafter, the accused went away from the place by throwing away the club. Nothing is elicited from PW.3 in the cross-examination to discredit his evidence. Admittedly, the house of PW.3 was very close to the Bore-well, therefore, the presence of PW.3 near the house is quite natural. Merely because PW.3 is the husband of PW.1, his testimony cannot be rejected. Of course, the testimony of such related witnesses require to be closely scrutinized before accepting. There is nothing on record to show that PW.3 had any grouse against the accused nor any motive is attributed to PW.3 to falsely implicate the accused. Therefore, there was no reason for rejecting the evidence of PW.3. PW.4-Laxmi and PW.5-Honnuramma who were examined to prove the incident have not supported the case of the prosecution. Nevertheless, the evidence of these two witnesses read as a whole would corroborate the testimony of PWs. 1 & 3 with regard to the incident of quarrel near the Bore-well on that day and PW.1 suffering injury. However, since PWs. 4 & 5 have not supported the case of the prosecution that the accused assaulted PW.1, their evidence would not incriminate the appellant/accused in the commission of the offence. Nevertheless, since their testimony would, to some extent, corroborate the evidence of PWs. 1 & 3 with regard to galata near the Bore-well and PW. 1 suffering injuries, the testimony of PWs. 1 & 3 deserves to be accepted. Therefore, the learned Sessions Judge has rightly accepted the testimony of PWs. 1 & 3. The testimony of PW.1 gains corroboration from the medical evidence. No doubt, the seizure of the Club (MO. 1) from the scene of occurrence has not been proved. Nevertheless, PW. 1 in her evidence has identified MO No. 1 as the club used by the accused to assault her. There is no serious cross-examination to PW.1 in this regard. Therefore, the learned Sessions Judge has rightly held that the non-examination of the Investigating Officer to prove seizure of MO No. 1 has not in any way affected the case of the prosecution. Thus, from the evidence on record it is clearly established that the accused after picking-up quarrel with PW. 1 near the Bore-well, assaulted her with a club and kicked her and consequently, caused grievous hurt to her. Under these circumstances, the learned Sessions Judge is justified in convicting the accused for the offences punishable under Sections 324 and 325 of IPC. The judgment under appeal do not suffer from any perversity, illegality or Irregularity. The learned Sessions Judge has appreciated the evidence on record in its proper perspective and has come to the correct conclusion. Learned Counsel for the appellant is not able to point-out as to whether the learned Sessions Judge has omitted to consider any material evidence on record. The defence of the accused is not shown to be probable and acceptable. Therefore, I find no ground to interfere with the judgment of conviction passed by the learned Sessions Judge.

The learned Sessions Judge considering the various facts and circumstances of the case, has sentenced the appellant to pay fine of Rs. 1,000/- for the offence punishable u/s 324 IPC and in respect of offence punishable u/s 325 IPC, the appellant has been sentenced to undergo Simple Imprisonment for two years and also to pay fine of Rs. 2,000/-. Having regard to the fact that the appellant by assaulting PW.1 with a club and by kicking her, caused her grievous hurt namely, fracture of two Ribs on the left side apart from other injuries, in my opinion, the learned Sessions Judge is justified in sentencing the appellant to undergo Simple Imprisonment for two years for the offence punishable u/s 325 IPC. Having regard to the facts and circumstances of the case, the sentence ordered by the learned Sessions Judge cannot be termed as excessive.

In catena of decisions, the Apex Court has laid down the Sentencing Policy. Whenever a person is found guilty of any offence, he has to be adequately and commensurately punished by passing order regarding sentence, so that it would have a deterrent effect on the potential wrong doers. Therefore, I find no ground to interfere with the order of sentence.

In the light of the above discussion, I find no merit in this appeal. Accordingly, the appeal is dismissed. The bail and surety bonds of appellant/accused are ordered to be cancelled.

The appellant/accused shall surrender himself before the learned Sessions Judge within 30 days from today and upon such surrender, the learned Sessions Judge shall commit the accused to the prison for serving the sentence. If the appellant fails to surrender himself within the aforesaid period, the Court below shall take necessary steps to secure his presence and to commit him to the prison to serve out the sentence ordered.

Registry is directed to send back the records to the Court below along with a copy of this judgment, forthwith.