Sri Ramkumar and Smt. Shailaja vs State of Karnataka

N. Ananda, J.—The appellants (hereinafter referred to as accused No. 1 and 2) were tried for offences punishable under Sections 324, 307, 504, 506 read with 34 of IPC. The learned Sessions Judge acquitted accused 1 and 2 of offences punishable under Sections 504, 324, 506 read with Section 34 IPC. The learned Sessions Judge convicted accused 1 and 2 of an offence punishable u/s 326 read with Section 34 IPC and sentenced them to undergo simple imprisonment for a period of five years and pay fine of Rs. 5,000/- and default sentence of simple imprisonment for one year. Therefore, they are before this Court. I have heard Sri Siddamallappa, learned counsel for accused and learned Government Advocate for State.

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

Accused No. 1 is husband of accused No. 2. At the relevant time, accused No. 2 was working as Anganawadi teacher. P.W. 1 - Sathish and accused No. 1 are adjacent land holders. They had a dispute regarding erection of fence on the ridge separating their lands.

On 17.8.2009 at 2.30 p.m., when P.W. 1 was making preparations to erect fence around his land, accused 1 and 2 came there and picked up quarrel with him. Accused No. 1 assaulted P.W. 1 with crow bar (Hare) and accused No. 2 assaulted on right forearm of P.W. 1 with a chopper.

The first information relating to the incident of assault was recorded when P.W. 1 was being treated in Government Hospital at Thirthahalli. The Investigating Officer recorded statements of witnesses and completed the formalities of investigation and submitted final report of the afore stated offences. As already stated, learned Sessions Judge convicted the accused for an offence punishable u/s 326 read with Section 34 IPC and acquitted accused of the rest of afore stated offences. Therefore, following points would arise for consideration:

(i) Whether the prosecution has proved that on 17.8.2009, at 2.30 p.m., P.W. 1 was working near his land in Sirur village, accused 1 and 2 shared common intention and assaulted P.W. 1 with crow bar (Hare) and chopper and caused grievous injuries to P.W. 1, thereby committed an offence punishable u/s 326 read with 34 IPC?

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

(iii) Whether the impugned judgment calls for interference?

(iv) What order?

The prosecution has relied on evidence of victim (P.W. 1) and eye witnesses, namely, P.W. 2 - Narendra and P.W. 3 - Krishnappa. The prosecution has relied on medical evidence of P.W. 9 - Dr. Ravikumar and contents of wound certificate marked as Ex. P7.

The evidence of P.W. 1 reveals that there was dispute between him and accused regarding erection of fence around their lands. On the date of incident at 2.30 p.m., when he was making preparation to erect fence around his land, accused 1 and 2 came there and abused him. Accused No. 1 picked up hare (handle of a spade) and assaulted P.W. 1. Accused No. 2 assaulted on right forearm of P.W. 1 with a chopper. P.W. 1 fell down and suffered bleeding injuries. The incident of assault was witnessed by P.W. 2 - Narendra and P.W. 3 - Krishnappa. They shifted him in an ambulance to the Government Hospital at Thirthahalli.

During cross-examination of P.W. 1, it is elicited that accused. No. 1 had a dispute with P.W. 1 regarding erection of fence around their lands. In addition to this it has been suggested to P.W. 1, that he was involved in several criminal cases P.W. 1 has denied the suggestion that he was involved in several criminal cases. The accused has not produced documentary evidence to substantiate involvement of P.W. 1 in several criminal cases. During cross-examination P.W. 1 has denied that he had motives to falsely implicate the accused.

P.W. 1 was examined by P.W. 9-Dr. Ravi Kumar in General Hospital at Thirthahalli at about 4.30 p.m., on 17.08.2009. P.W. 1 had suffered following injuries:

1) Cut lacerated wound measuring 3 c.m. x 1 c.m. over left leg

2) Cut lacerated wound measuring 5 c.m. x 1 c.m. x 1 c.m. over the left leg in lower aspect

3) Fractures of left tibia and fibula

4) Swelling and tenderness present over left leg.

5) Cut lacerated wound measuring 3 c.m. x 1 c.m. present over right fore arm.

During cross-examination, P.W. 9 has denied the suggestion that injuries found on P.W. 1 could be caused due to fall. Considering the number and nature of injuries, the defence version that these injuries could be caused due to fall is untenable.

Thus, we find that evidence of injured (P.W. 1) finds substantial corroboration from medical evidence. The evidence of injured (P.W. 1) would prove that accused had motive to assault the injured. The medical evidence would reveal that injured (P.W. 1) had suffered aforestated injuries due to assault. The first information of the incident was recorded when the injured P.W. 1 was being treated in General Hospital at Thirthahalli. The contents of first information would lend substantial corroboration to the evidence of P.W. 1.

The learned counsel for accused would submit that, P.W. 1 has deposed that he was assaulted by Guddali and before the Doctor he has stated that he was assaulted by a rod. In the first information, it is stated that P.W. 1 was assaulted by a crow-bar. P.W. 1 has deposed that the first accused assaulted him with Guddali.

From the evidence of P.W. 1 and contents of first information, it is proved that accused No. 1 had assaulted P.W. 1 with the handle of spade (Hare). P.W. 1 had suffered lacerated injuries on the left limb including fractures of left tibia and fibula. Therefore, there is no discrepancy in the nature of weapon used to assault P.W. 1.

The learned counsel for accused referring to the evidence of P.W. 2 (first informant) would submit that P.W. 2 has not deposed that accused No. 2 had assaulted P.W. 1 with a chopper.

P.W. 2 was declared as hostile witness for not fully supporting the case of prosecution however, during cross-examination by the learned counsel for accused, he has admitted that he has not stated in the first information that accused No. 2 had assaulted P.W. 1 with a chopper.

P.W. 3-Krishnappa has deposed that accused No. 1 assaulted P.W. 1 with Hare, (handle of Guddali), the blows landed on the left lower limb of P.W. 1 and P.W. 1 fell down. Thereafter, accused No. 2 assaulted on the right fore arm of P.W. 1 with a chopper.

As per evidence of P.Ws. 1 and 3, accused No. 1 had assaulted P.W. 1 with a handle of Guddali (Hare) and caused factures of left tibia and fibula. In the circumstances, it looks improbable that P.W. 1 was able to stand to receive blow dealt by accused No. 2 with a chopper.

It is not in dispute and cannot be disputed that the incident of assault was not pre-meditated. Accused No. 1 and 2 had not come to the place of incident armed with weapons. It appears, accused No. 1 got enraged after seeing P.W. 1 erecting a fence. Therefore, he picked up a quarrel and assaulted P.W. 1 with Hare. In the circumstances, the evidence of P.W. 1 and P.W. 3 that accused No. 2 was armed with a chopper looks improbable. Accused No. 2 was working as a Anganawadi Teacher and she has been implicated to affect her service conditions as Anganawadi Teacher.

The learned trial judge without noticing these discrepancies has held accused No. 2 guilty of an offence punishable u/s 326 r/w 34 IPC.

As per evidence of investigation officer, the weapons of assault were recovered on the information volunteered by accused No. 1. The investigation officer has recorded voluntary statement of accused No. 2 to make it appear that weapons of assault were recovered at the instance of accused No. 1 and 2. Thus, we find that the investigation officer during investigation had made improvements to implicate accused No. 2. The learned trial judge has not noticed this deliberate improvement made during investigation to falsely implicate accused No. 2. Therefore, the impugned judgment as it relates to accused No. 2 cannot be sustained.

The learned counsel for accused submits that sentence of imprisonment imposed on accused No. 1 is severe. Accused No. 1 had assaulted P.W. 1 with a heavy object and caused fractures of left tibia and fibula. Therefore, considering the grievous nature of injuries, sentence of imprisonment imposed by the trial court cannot be termed as severe. The sentence of imprisonment of accused No. 1 in terms of the impugned judgment does not call for interference. Therefore, I pass the following:

ORDER

The appeal is accepted in part. The conviction of accused No. 1 for an offence punishable u/s 326 IPC and sentence passed thereon is confirmed. The conviction of accused No. 2 is set aside. Accused No. 2 is acquitted of an offence punishable u/s 326 r/w 34 IPC.

The bail bond executed by accused No. 2 stands cancelled. If accused No. 2 has deposited fine amount, the same shall be refunded to her.