State vs Shivamurthy and Others

Mohan M. Shantana Goudar, J.—The judgment and order of acquittal dated 3.4.2010 passed by the Additional Sessions Judge and Special Judge for CBI Cases, Bangalore, in S.C. No. 763/2008 is appealed against by the State.

The respondents-accused were tried and acquitted of the offences punishable under Sections 323, 324, 307 r/w. Section 34 of IPC.

Case of the prosecution in brief is that the injured P.W. 4, who was the driver of the lorry loaded with cement bags came to Bangalore on 11.7.2007 at about 9.00 p.m. and parked his lorry in front of IOC Company situated at B. Narayanapura, Bangalore with a view to have his dinner. Accused Nos. 1 to 3 with an intention to rob the money from P.W. 4, threatened him; P.W. 4 resisted the said attempt of accused Nos. 1 to 3; being enraged, accused Nos. 1 to 3 assaulted on the head of P.W. 4 and other parts of his body, consequent upon which P.W. 4 sustained grievous injury on his head; P.W. 3 who is a permanent resident of Bangalore working in Office Complex near Mahadevapura Bus Stop was returning to his house came there and the saw the incident and rushed to the scene of offence to save the life of P.W. 4; on seeing P.W. 3, accused Nos. 1 to 3 fled away from the scene.

The injured P.W. 4 was shifted to Harsha Hospital and thereafter to Vydehi Hospital by P.W. 3. The doctor at Vydehi Hospital referred the patient to NIMHANS Hospital since the patient could not meet the medical expenses of Vydehi Hospital, which is a private hospital. P.W. 4 took treatment at NIMHANS Hospital and underwent certain operations; thereafter the victim took treatment in SKS Hospital, Salem, and was discharged with an advise to take rest.

From the medical records, it is clear that the victim (P.W. 4) was an inpatient continuously for more than four months in different hospitals. He took treatment for more than six months in various hospitals; even after his discharge, he was advised to take treatment.

Complaint came to be lodged by P.W. 3, who shifted the injured to the hospital, as per Ex. P4 at 11.30 p.m. on 11.7.2007 before the SHO of Mahadevapura Police Station (P.W. 5), which is registered in Crime No. 180/2007. Ultimately, the Inspector of Police (P.W. 10) completed the investigation and laid the charge sheet.

In order to prove its case, the prosecution in all has examined 11 witnesses and got marked 11 Exhibits and 3 Material Objects. On behalf of the defence, no evidence is let in. As aforementioned, the trial Court acquitted the accused of the charges levelled against them.

Sri Visweswaraiah, learned HCGP, taking us through the entire material on record including the judgment of the Court below submits that the Court below is not justified in disbelieving the versions of P.Ws. 4 and 7 who are the eye witnesses; P.W. 4 is the injured eye witness; there is absolutely no motive on the part of P.W. 4 to depose falsely against any of the accused; there is no prior ill-will between P.W. 4 and accused Nos. 1 to 3. In view of the same, he submits that the version of P.W. 4 cannot be disbelieved. He further submits that though the complainant-P.W. 3 has turned hostile to the case of the prosecution, the evidence of the injured witness is supported by P.W. 7, who is another eye witness to the incident. He draws the attention of the Court that the evidence of the eye witnesses is supported by the medical records and the evidence of the doctor-P.W. 8. On these among other grounds, he prays for conviction of the accused at least for the offence punishable under Section 326 of IPC.

Sri Anil Kumar, learned amicus curiae, per contra argued in support of the judgment of the Court below. He fairly submits that the trial Court may not be justified in disbelieving the versions of P.Ws. 4 and 7.

P.W. 1 is the Assistant Sub-Inspector of Police. He apprehended accused Nos. 1 to 3 on 12.7.2007 and gave his report as per Ex. P1 to the Investigating Officer.

P.W. 2 is the Officer of Forensic Science Laboratory. His report is at Ex. P2.

P.W. 3 is the complainant. He is the eye witness to the incident in question. Complaint is at Ex. P4. However, he has turned hostile to the case of the prosecution. On going through the evidence of P.W. 3, it is clear that he supports the case of the prosecution in part i.e., to the effect that the injured-P.W. 4 sustained grievous injury on his head in the incident in question and he was shifted by P.W. 3 to Harsha Hospital and thereafter to Vydehi Hospital.

P.W. 4 is the injured eye witness.

P.W. 5 is the Police Constable who registered the case and issued FIR as per Ex. P6.

P.W. 6 is the brother of P.W. 4. He took care of the injured in NIMHANS Hospital.

P.W. 7 is the eye witness to the incident. He is also the witness for recovery panchanama at Ex. P7, under which MO. Nos. 1 to 3 are recovered at the instance of accused No. 1.

P.W. 8 is the doctor attached to NIMHANS Hospital He examined and treated the injured and issued wound certificate as per Ex. P8.

P.W. 9 is another witness for recovery panchanama at Ex. P7. He has turned hostile.

P.W. 10 is the Investigating Officer. He has completed the investigation and laid the charge sheet.

P.W. 11 is the Police Constable who carried the articles to Forensic Science Laboratory for examination.

Unfortunately, in the case on hand, the complainant-P.W. 3 has turned hostile to the case of the prosecution in respect of the actual complicity of the accused in the crime. However, he has deposed that the incident has taken place at bout 9.00 p.m. on 11.7.2007 near IOC Company situated at Mahadevapura. In the said incident, P.W. 4 sustained grievous injuries on his head and he was shifted by P.W. 3 to the hospital. Therefore, it is clear that the ''time and place'' of the incident is supported by P.W. 3 the complainant. As aforementioned, he has set the criminal law into motion by lodging the complaint as per Ex. P4. Ex. P4 discloses that three persons assaulted the victim with silencer pipe and clubs. P.W. 3 has admitted his signature on the complaint at Ex. P4. It is also clarified in Ex. P4 that the complainant has seen the incident in the street light.

P.W. 4 is the injured eye witness. He has deposed in detail about the actual incident and complicity of each of the accused. It is specified by P.W. 4 that accused No. 1 assaulted on his head with the silencer pipe (MO. No. 1), consequent upon which he sustained severe head injuries. He has further deposed that accused Nos. 2 and 3 assaulted him with sticks on other parts of his body. Though P.W. 4 is subjected to cross-examination, nothing worth is elicited so as to discard his evidence. Merely, suggestions are put to P.W. 4 to the effect that he was not the driver of the lorry in question and he had not come to the spot. All such suggestions are denied by P.W. 4. Virtually there is no cross-examination by the defence in respect of the incident in question as well as complicity of the accused. The evidence of P.W. 4-injured fully supports the case of the prosecution as found in the complaint as per Ex. P4 as well as charge sheet.

The evidence of P.W. 4 is further supported by P.W. 7, who is another eye witness to the incident. He was also a passer by. Since the incident has taken place on the main road, number of persons must have seen the incident and P.W. 7 was one among them. He has also deposed that accused No. 1 assaulted on the head of P.W. 4 with silencer pipe, whereas accused Nos. 2 and 3 assaulted him with clubs on his body. His evidence is also not shaken in the cross-examination. The advocate for the defence has merely made certain suggestions to P.W. 7 which are denied by him.

On going through the evidence of P.Ws. 4 and 7, we find that their evidence is consistent, cogent and reliable. Their version fully supports the case of the prosecution. Absolutely, no material is forthcoming either in the form of suggestions or otherwise to disbelieve the version of P.Ws. 4 and 7. These two witnesses did not have any ill-will against the accused to depose against them, on the other hand, both these witnesses did not know the accused. However, they identified the accused in the Court Hall as the persons who assaulted P.W. 4. We do not find any ground to disbelieve the versions of these two eye witnesses particularly, the version of P.W. 4 who is the injured eye witness.

The ocular testimony of P.Ws. 4 and 7 is fully supported by the version of the doctor-P.W. 8 who treated the victim in NIMHANS Hospital and issued the wound certificate as per Ex. P8. P.W. 8 has deposed that the injured P.W. 4 had sustained grievous injuries and the same may be caused by assault with MO. Nos. 1 to 3. The victim was given first aid by P.W. 8 and thereafter he was referred to Neuro Surgeon in NIMHANS Hospital. As aforementioned, P.W. 4 took treatment in NIMHANS Hospital to major extent. He underwent right poroparietal craniotomy and evacuation of EDH on 12.7.2007, i.e., within one day after the incident in question. After operation, his general neurological state was E1M3VT. He was subjected to tracheotomy. He was discharged from NIMHANS Hospital on 1.8.2007 for further supportive care. Thereafter, the victim was admitted to SKS Hospital, Salem on 20.8.2007 as is clear from Ex. P10. In the said hospital, the closure of tracheotomy was done. However, the patient developed bilateral bronchopneumonia with acute respiratory distress. Once again he was resuscitated with IV antibiotics, oxygen support, chest physiotherapy, etc. He continued to improve from 2.9.2007 onwards. At the time of issuing the certificate at Ex. P10, his general condition was improving slowly. However, while issuing Ex. P10, the doctor opined that P.W. 4 needs nursing care till he becomes stable neurologically.

From the aforementioned medical records, it is amply clear that the victim underwent operations and was subjected to tracheotomy. Thus, it is clear that the victim had sustained grievous injuries on his head and he underwent operations. The blood clots were removed by the doctor during operation.

The trial Court strangely has not appreciated such clinching material on record. It has casually brushed aside the important evidence while passing the order of acquittal. The view taken by the trial Court is not a plausible view at all under the facts and circumstance of the case.

In the matter on hand, the incident has taken place on 11.7.2007 at 9.00 p.m. and the complaint came to be lodged at 11.30 p.m. Immediately after the incident, the victim was taken to Harsha Hospital, then to Vydehi Hospital and thereafter to NIMHANS Hospital. Since the medical aid was provided to him immediately after the incident, probably his life is saved. Having regard to the totality of the facts and circumstances of the case, we are of the clear opinion that the judgment of the Court below is improper and incorrect. The material against the accused would clearly point towards the guilt of the accused. However, we agree with the conclusion reached by the trial Court that the accused did not have any intention to commit the murder of the victim. They wanted to extract money from the victim and therefore they assaulted him, consequent upon which the victim sustained grievous injuries on his head. Therefore, the accused are liable to be punished for the offence punishable under Section 326 of IPC.

As aforementioned, the only view which can be taken under the facts and circumstances of this case is that the accused have committed the offence punishable under Section 326 of IPC. The view taken by the trial Court that the accused are entitled for acquittal is not a plausible view under the facts and circumstances of the case. We find that the judgment of the trial Court is perverse and therefore the same is liable to be set aside. Accordingly, the following order is made:--

"i) The judgment and order of the trial Court dated 3.4.2010, passed in S.C. No. 763/2008 is set aside.

ii) The accused-respondents herein are convicted for the offence punishable under Section 326 of IPC. They are sentenced to undergo imprisonment for a period four years for the said offence.

iii) In addition, each of the accused is sentenced to pay fine amount of Rs. 20,000/- (Rupees twenty thousand only). In default of payment of fine, they shall undergo imprisonment for further period of one year.

iv) In case of recovery of fine amount, 80% of the fine so recovered shall be paid to the injured (P.W. 4), namely Ramaswamy, S/o. Raja Manikayam

v) The accused-respondents are entitled to the benefit of set off under Section 428 of Cr.P.C. of the period which they have already undergone imprisonment."

Appeal is allowed in part to the above extent.