Sridharamurthy @ Bhojanna vs The State of Karnataka

A.S. Pachhapure, J.—This appeal is preferred challenging the judgment and order convicting the appellant for the charge u/s 323 IPC and the award of sentence. The appellant is husband of PW6-Vinoda. After the wedlock they have two children and after two years of the marriage the appellant had deserted his wife Vinoda. On 18.9.2004 at about 10.00 a.m. when Vinoda had been to the land to offer prayer, it is alleged that while Vinoda was returning to the home, the appellant came from an adjoining land, held her and with an intention to kill her, dragged her to the ground and by gagging her mouth with the cloth tried to throttle her and thereafter left her alone and went away. She got up and informed this incident to PW1 neighbour who secured PW7 and took the injured to the hospital. PW9 examined her and issued an injury certificate Ex.P6. On a complaint filed by PW1, a case was registered and statements of the witnesses were recorded, spot mahazar was held as per Ex.P4 and the towel was seized under Ex.P3. After collecting the necessary documents, a charge sheet is filed against the appellant for the charge u/s 307 IPC.

In the course of the trial, the prosecution examined PWs.1 to 10, got marked the documents Exs.P1 to P8 and MO No. 1. The statement of the appellant was 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 appellant for the charge u/s 323 IPC and ordered him to undergo simple imprisonment for one year and to pay fine of Rs. 1,000/-. Aggrieved by the conviction and sentence, the present appeal is filed.

Counsel for the appellant is absent. Heard Sri Mallikarjuna Masali, Amicus Curiae for the appellant and also the learned High Court Government Pleader for the respondent-State.

The point that arises for my consideration is:

Whether the appellant has made out any grounds to warrant interference in the conviction and sentence ordered by the trial Court?

PWs.1, 2 and 5 are the attesting witnesses for the seizure mahazar Ex.P3 and MO.1 was seized under the said mahazar. All these three witnesses have turned hostile to the prosecution witnesses. P.Ws.3 and 4 are the witnesses to the said mahazar Ex.P4, they have also not supported the case of the prosecution. PW6 Vinoda is the wife of the appellant and she states in her evidence that on the date of the incident she had been to the land to offer prayer and while she was returning back to home, the appellant came and tried to throttle her with the use of a towel. The evidence of PW6 is corroborated by the evidence of PW9 Dr. Ramesh, who after examination of PW6 had issued the injury certificate Ex.P6. Doctor has also opined that in case an effort is made to throttle with the use of towel, an injury like abrasion could be caused. So, the medical evidence corroborates the evidence of PW6-Vinoda.

The prosecution has examined PW7, the brother of PW6 Vinoda and he is one amongst those who shifted the injured to the hospital for treatment. PW8 is the Police Constable who recorded the complaint Ex.P5 on the oral information of PW6 Vinoda. PW10 is the Police Officer who has investigated the matter. Scrutiny of the material placed on record reveals that, PW6 is the injured and her evidence is corroborated by the evidence of the doctor. The evidence is consistent, cogent and trustworthy. There are no reasons to disbelieve the evidence of PW6. In such circumstances, the conviction ordered by the trial Court for the offence u/s 323 IPC. is just and proper. No grounds are made out to warrant interference in the conviction and sentence.

So far as the sentence is concerned, it is relevant to note that only abrasions were caused in the incident. Taking into consideration the age of the appellant and the nature of the injury suffered, interest of justice would be met in case if the sentence is modified and direct him to undergo simple imprisonment for three months. In the result, the appeal is allowed in part confirming the conviction of the appellant for the offence u/s 323 IPC. The sentence is modified. The appellant (accused) is ordered to undergo simple imprisonment for three months and to pay fine of Rs. 1,000/-.

The appellant is entitled to set off u/s 428 Cr.P.C.

The trial Court is directed to secure the presence of the appellant to undergo the sentence.

The fee of Amicus Curiae is fixed at Rs. 5,000/- and the State shall pay the same.