Sri. Ramappa vs The State of Karnataka

Anand Byrareddy, J.—Heard the learned Counsel for the appellant and learned Additional State Public Prosecutor. The appellant was the accused before the trial Court in the following circumstances:

One Vitthal Bhimappa Gadadi was the complainant who was the owner of a pan shop at Tukkanatti Dawakhane Maddi. According to him, that on 04.07.1999 at about 9.00 pm, the appellant had come to his shop and demanded cigarettes, on credit. The complainant had refused the same. Therefore, the appellant had picked up a quarrel with the complainant. But since other customers had come to the shop by then, the appellant had left. After the complainant shut his shop for the day and was walking towards his house, the accused is stated to have accosted him and attacked him with a button knife and stabbed him in his abdomen, causing a grievous injury. The complainant had fallen to the ground and since passers by came along, the appellant had fled the scene.

It is on the basis of the said complaint, alleging the above incident, that a case was registered against the appellant for offences punishable under Sections 307, 341 and 504 of the Indian Penal Code, 1860 (hereinafter referred to as ''I.P.C.'', for brevity).

The appellant was thereafter charge-sheeted by the Mudalagi Police and the case was committed to the Sessions Court. The appellant having pleaded not guilty and having claimed to be tried, the prosecution had examined PWs. 1 to 20 and had marked Exhibits P1 to P17 and material objects 1 to 18.

In the light of the evidence of the prosecution and the arguments advanced, the Sessions Court had framed the following points for consideration:

i. Whether the prosecution proves that, on 4.7.1999 at about 9.00 pm, the accused quarrelled with CW 1/PW 1-Vitthal Bhimappa Gadadi and also with his brother CW 6/PW 13-Laxman Bhimappa Gadadi in respect of the credit of sarayi (liquor) to be given and when the complainant was on the way on the road, at that time, accused has wrongfully restrained him and thereby committed the offence punishable u/s 341 of IPC?

ii. Whether the prosecution further proves that the accused on the above said date, time and place, quarreled with the CW 1/PW 1-Vitthal Bhimappa Gadadi, due to the previous quarrel, with an intention to commit the murder of the accused has assaulted the CW 1/PW 1-Vitthal Bhimappa Gadadi by means of a button chaku on his stomach, and below the stomach and caused the grievous injuries with an intention to commit the murder of the CW 1/PW 1 Vitthal Bhimappa Gadadi and thereby the accused has committed the offence punishable u/s 307 of IPC?

iii. Whether the prosecution proves that the accused on the above said date, time and place, quarreled with CW 1/PW 1 on the ground that, he has not given cigarette, when he asked for that, and abused him as

and by abusing in filthy language, knowing that such use of filthy words, will provoke him, and thereby, the accused has committed the offence punishable u/s 504 of IPC?

iv. What order?

The Session Court had held the points in the affirmative and had convicted the accused and had sentenced the accused to undergo Rigorous Imprisonment for 10 years and to pay a fine of Rs. 10,000/-, in default of payment of fine, to undergo simple imprisonment for one year, for the offences punishable u/s 307 of the IPC; and had also sentenced him to undergo Rigorous Imprisonment for one month for the offence punishable u/s 341 of the IPC and to undergo Rigorous Imprisonment for two years for the offence punishable u/s 504 of the IPC. The sentences were to run concurrently. The fine amount of Rs. 4,000/- was to be paid to the complainant as compensation u/s 357 of the Code of Criminal Procedure, 1973 (hereinafter referred to ''Cr.P.C.'', for brevity). It is that, which is under challenge in the present appeal.

The learned Counsel for the appellant raises the following contentions:

That the Court below has failed to appreciate, that the complainant had not examined any independent witnesses in support of the allegations and even the evidence, that is tendered, is concocted and the witnesses who have supported the case of the complainant were tutored. This is evident from the inconsistencies in the testimony of the several witnesses.

With regard to the alleged assault by the appellant, it is pointed out that, the complainant had claimed that, when he had closed the shop and was going home, when he neared the Government hospital, the accused, who was apparently waiting for him, had suddenly appeared and while abusing him, had stabbed him on his stomach and the complainant started bleeding profusely on account of such assault. But PWs. 9 and 11, on the other hand, have claimed that, they had provided first aid to the appellant and that, one Laxman had then shifted him to Dr. Umarani hospital at Gokak. But it was overlooked by the Court below, that these statements were not made in the complaint.

Further, when it was the case of the complainant that, the spot, where the assault had taken place was near a Government hospital, there is no indication or explanation as to why the appellant was taken to Gokak for treatment instead of availing treatment at the Government hospital.

Therefore, the learned Counsel would submit that, the allegations in the complaint do not ring true. Further, even the Investigating Officer-PW 18 had admitted that, the above facts were not narrated in the complaint. Hence the omissions in this regard would have to be treated as being contradictions in terms of Section 145 of the Indian Evidence Act, 1872.

It is also further pointed out that, the incident is said to have taken place at about 8.30 pm and there were several shops and houses in the area, where the incident is said to have taken place. But the prosecution had failed to examine any person from the locality as an independent witness and significantly, the witnesses examined at the trial are all close relatives of the complainant and hence, they were apparently tutored and interested witnesses. The fact that, these witnesses are related to the complainant, has been elicited in the course of their examination.

It is also pointed out that, when the complainant saw the accused coming towards him, it is unusual that the complainant did not choose to defend himself or prepare himself for the attack or even raise an alarm. This behavior of the complainant to allow himself to be meekly attacked, is opposed to normal human behavior and therefore, the incident having taken place is doubtful.

It is also pointed out that, the statements of the complainant, as to his treatment at the hospital. There was inconsistent statement that, he was operated upon by one Dr. Umarani at Gokak on 05.07.1999 and that, there was heavy loss of blood. But it is not clear as to how he managed to lodge a complaint, even in spite of the complainant being in such a state. Hence there is no corroboration of the evidence of PW 1 by PW 3 in this regard.

The learned Counsel would also take this Court through the record to demonstrate that, there are contradictory statements made by the complainant and the prime prosecution witnesses, apart from PW 1, PW 8 and PW 13 and other witnesses, who had deposed that, a person might have tried to run away from the scene of assault, during the time, when PW 1 was attacked. Therefore, the assault having been made by the accused-appellant is not categorically spoken to by any witnesses. It is these infirmities, on the basis of which, the learned Counsel for the appellant pleads that, the appeal be allowed and the judgment of the Court below be set aside.

While the learned Additional State Public Prosecutor would seek to justify the judgment of the Court below and would point out that, the so called infirmities, which the learned Counsel for the'' appellant seeks to highlight, cannot wish away the grievous injury suffered by the complainant. The complainant was the injured witness and whose evidence has been amply corroborated by other witnesses, who were present on the scene. Therefore, the contention that the incident itself having taken place is doubtful, is without reference to the serious injury, that the complainant had suffered. Since the complainant has merely identified the appellant and there was ample proof of the injury suffered by him, it cannot be said that, it was a self inflicted injury or the injury suffered in an accident. The circumstance that, there was an altercation between the complainant and the appellant preceding the incident, was ample motive for the appellant to have committed the offence.

Therefore, the mere so called inconsistencies and discrepancies, which the learned Counsel for the appellant seeks to highlight, would not be sufficient for this Court to set aside the judgment, which is otherwise based on sound reasoning with reference to the material on record and on the basis of cogent evidence tendered by several witnesses for the prosecution. Hence the learned Additional State Public Prosecutor would justify the judgment.

While it is true that, several grounds raised in the appeal do not make out a case for acquittal or that the finding and the reasoning of the Court below is in no way to be faulted, the glaring circumstances of the trial Court having punished the accused with imprisonment for a period of 10 years, apart from payment of fine for the offences punishable u/s 341 and 307 of IPC appears to be disproportionate to the offence committed. Though the injury caused is on premeditation by the appellant and even if it is termed as a grievous injury, the appellant has recovered from the same. He was certainly hospitalized for an extended period of 19 days, which in itself would indicate that, it was a grievous injury suffered by the complainant. Therefore, on the question of proportionality, whether the stringent punishment of 10 years'' Rigorous Imprisonment is disproportionate to the nature of offence that is established against the accused, is a limited question that arises for consideration before this. Court.

In the opinion of this Court, the punishment imposed is very much on the higher side and is a severe punishment. It would be appropriate, if the punishment for the offence punishable u/s 307 of the IPC is drastically reduced and it would be sufficient, if the same is restricted to Rigorous Imprisonment for two years, instead of 10 years, for the offence punishable u/s 307 of the IPC.

To offset this drastic reduction of the quantum of punishment, it would be necessary to enhance the fine payable by the accused. In addition to Rs. 10,000/- imposed by the Court below for the offences punishable u/s 307 of the IPC, the appellant shall pay an additional sum of Rs. 20,000/- as fine, in addition to the fine amount imposed by the trial Court, which shall be paid as compensation to the complainant u/s 357 of the Cr.P.C., along with Rs. 4,000/- which the trial Court has directed. In default of payment of the additional fine imposed by this Court, the appellant is sentenced to Simple Imprisonment for three months for the offences punishable u/s 307 of the IPC.

The additional imprisonment of three months, for the sentence imposed in default shall run consecutively. Insofar as the punishment imposed for other offences is not disturbed.