State of Karnataka vs Manjunath and Others

Mohan M. Shantana Goudar, J—The judgment and order of acquittal dated 19.3.2012 passed by FTC-V, Bangalore City in Sessions Case No. 875/2011 is called in question by the State.

Charge Sheet came to be filed against six accused for the offences under Section 307 r/w 34 of IPC with an allegation that all the accused assaulted the victim PW7 with knife and stones at about 8.30 p.m. on 4.7.2010 in front of Bramha Lingeshwara Stores. Trial was not held as against accused No. 3 inasmuch as, he has absconded. The case against accused Nos. 4 and 6 was also split up since they also absconded subsequently. Thus, the trial of a Sessions Case No. 875/2011 proceeded only against accused Nos. 1, 2 and 5 namely Manjunath @ Thaple @ Machha, Krishna @ Benne and Naveen @ Keecha. The trial Court acquitted the accused by giving benefit of doubt in their favour.

Case of the prosecution in brief is that; due to prior rivalry between accused and PW7, all the accused together, armed with knives and stones came in front of Bramha Lingeshwara stores situated near Dattatreya temple of Manjunatha Nagar, Banashankari III Stage, Ittamadu, Bangalore, at about 8.30 p.m. on 4.7.2010; the victim PW7 was drinking tea along with his friends in the said store; accused Nos. 1, 2 and 3 took out knives and stabbed PW7 on various parts of the body; accused No. 5 lifted the stone and threw it on the victim PW7; thereafter all the accused ran away from the scene.

Immediately after the incident, PWs.4 and 5 the friends of PW7 who were standing and watching the incident in question rushed to the spot, shifted him to DG Hospital, Bangalore, wherein the injured PW7 took treatment as an inpatient from 5.7.2010 to 12.7.2010. In the meanwhile, the first information came to be lodged by PW4 as per Ex. P6 before Channammanakere Acchukattu police station (CK Acchukattu police station). The PSI attached to said police station (PW13) received the complaint lodged by PW4 and registered Crime No. 242/2010 at about 10.45 p.m. The FIR as per Ex. P12 was prepared and the same was sent to jurisdictional Magistrate which reached the Magistrate at 11.00 a.m. on 5.7.2010. The Inspector of Police (CW 26) completed the investigation and laid the charge sheet.

In order to prove its case, the prosecution in all examined 13 witnesses and got marked 17 exhibits and 5 material objects. On behalf of the defence, no witness is examined. As aforementioned, the trial Court giving benefit of doubt in favour of the accused, acquitted the accused.

Sri Vijayakumar Majage, learned Addl. SPP appearing on behalf of the State taking us through the entire material on record submits that the Court below is not justified in disbelieving the version of eyewitness more particularly PWs.4 and 5; the injured witness PW 7, could not have been disbelieved by the Courts below; the reasons assigned by the Courts below in disbelieving the eyewitnesses version are unacceptable; merely because, the eyewitnesses have improved their version in respect of accused Nos. 4 to 6, the trial Court is not justified in disbelieving the entire case of the prosecution more particularly against accused Nos. 1 to 3. He further submits that, the reasons assigned and conclusion arrived at by the trial Court are improper and incorrect.

The Amicus Curiae assisted the Court. He argued supporting the judgment of the Court below; he contends that the version of the prosecution witnesses bristles with inconsistencies; major improvements and omissions. He further submits that the doctor who treated the victim is not examined before the Court; the Investigating Officer who completed the investigation and laid the charge sheet is also not examined. He further submits that the history given to the doctor by the brother of the victim clearly discloses that the assault has taken place by unknown persons. Thus, according to him these accused are innocent. He further submits that there is nothing on record to show that the accused are liable to be convicted for the offence under Section 326 or 307 of IPC. He further submits that the trial Court is justified in disbelieving versions of all the eyewitnesses.

PW1 is the eyewitness for seizure panchanama Ex. P1 in which MO.1 Stone is seized at the instance of accused No. 5. PW2 is the eyewitness for seizure panchanama Exs. P2 and P3 under which M.O. Nos. 2 and 3 (knives) were recovered at the instance of accused Nos. 1 and 2 respectively. Accused No. 3 is the Assistant Sub-Inspector of Police of the concerned police station. He apprehended accused Nos. 5 and 6. PW4 is the complainant. He is eyewitness to the incident. He lodged a complaint as per Ex. P6. PW5 is a friend of PW4 and PW7. He is eyewitness to the incident. PW6 and PW8 though are the eyewitnesses to the incident, and deposed about the incident in question, are not specific about the names of the accused. They have merely deposed that accused committed the offence. They have not specified the names of any of the accused and their overt acts. PW7 is the victim. He has suffered grievous injuries. PW9 is the witness for Panchanama Ex. P7. He has turned hostile to the case of the prosecution. PW11 is the witness for seizure Panchanama Ex. P10, in which blood stained clothes of the victim are seized. PW12 is the witness for Panchanama Ex. P11 under which the vehicle allegedly used by the accused during the relevant point of time is seized. He has not supported the case of the prosecution. PW13 is the Sub-Inspector of Police of CK Acchukattu police station. He received the complaint and registered crime based on Ex. P6. He conducted the most part of the investigation and handed over further investigation to CW-26, who is not examined.

From the aforementioned information it is clear that the case of the prosecution mainly depends on the version of the eyewitnesses. As aforementioned, the evidence of PWs.6 and 8 may not be much help to the case of the prosecution; PW6 though an eyewitness to the incident, without specifying the names of the accused, he has merely deposed that the accused came in front of a shop, wherein the victim was drinking tea; two of the accused held the victim Manjunath and other two accused tried to smash the head of Manjunath by throwing stone. However, Manjunath escaped; the remaining two accused stabbed on the stomach of the victim PW7. Even in the examination-in-chief they have not specified the names of the accused.

PW8 also has deposed that, 7 to 8 persons came in two vehicles and assaulted PW7 mercilessly. He has not even deposed that the accused came to the spot.

Thus, virtually the version of PWs.6 and 8 may not be of much help to the case of the prosecution to bring home guilt against any of the accused.

Before proceeding further, it is relevant to note the contents of Ex. P6 - first information lodged by PW4. It is specified in the first information which is lodged within two and half hours of the incident in question that accused Nos. 1, 2 and 3 came to the spot; and among them, accused No. 3 held PW7, accused Nos. 1 and 2 stabbed with knives on the abdomen and chest of the victim. Thereafter, all the three accused went away in an auto rickshaw and Deo motorcycle along with knives. Thereafter, the victim was admitted to DG Hospital by PWs.4 and 5. Hence, it is amply clear that the first informant PW4 was friend of the victim PW7. He knew the names of the accused; he has specified the names of accused Nos. 1 to 3 in the complaint. He has also specified the overt acts of accused Nos. 1 to 3.

Neither the presence nor the overt acts of accused Nos. 4 to 6 are spoken to by PW4 in his first information. As aforementioned, though the first information is lodged before the police station within two and half hours of the incident in question, the same reached the jurisdictional Magistrate at 11.00 a.m. on the next day, which means, there was every chance for the prosecution to improve its case till such time, despite the same, the names of only three accused i.e., accused Nos. 1 to 3 are forthcoming in the first information. If really, accused Nos. 4 to 6 had come to the spot and they had also participated in the incident, P.W.4 being the close friend of P.W.7 and who was knowing the names of accused would not have failed to mention their presence and overt acts in the first information.

However, P.W.4 has improved his version before the Court by deposing that accused Nos. 4 to 6 also participated in the offence and accused No. 5 threw stone on the head of victim Manjunath. Thus the presence and overt acts as against accused No. 5 were spoken to by P.W.4 for the first time before the trial Court. The improvements are brought on record by the defence during P.W.4''s cross-examination.

The evidence of P.W.4 is almost reiterated by P.W.5 before the Court. He has also deposed about the complicity of accused No. 5 though such version did not come on record immediately after the incident.

P.W.7 is the injured eyewitness. He was admitted to D.G. Hospital immediately after the incident. At the time of admission, the brother of P.W.7 namely K.B. Jagadish was present and he admitted P.W.7 to the hospital. The history as given before the Doctor in D.G. Hospital reveals that the injuries are caused on 4.7.2010 due to assault by unknown persons. It is no doubt true that the person who admitted the victim to the hospital has not specified the names of the accused, but has merely said that the incident of assault is by unknown persons. There is nothing on record to show that the history as mentioned in Ex. P16, the wound certificate is given by the injured himself. Since he had suffered injury on the stomach and chest, in our considered view the learned SPP is justified in submitting that the history must have been given by the brother of the injured. Be that as it may.

The fact remains that the victim was admitted to the hospital immediately after the incident. He has also improved his version before the Court by deposing the complicity of accused Nos. 4 to 6. According to him, accused No. 5 threw stone on him and consequently, he has sustained injuries. It is needless to observe that prior to deposing against accused No. 5, the injured P.W.7 has specifically deposed that accused Nos. 1 and 2 stabbed him with knives. The version of the injured in so far as it relates to implication of accused No. 5 in the crime is a clear improvement and the same is a material omission.

If the material omissions found on record are eschewed from consideration, the evidence still discloses case against accused Nos. 1 and 2. The versions of the eyewitnesses viz. P.Ws.4, 5 and 7 is consistent to the effect that accused Nos. 1 and 2 stabbed P.W.7 with knives on the stomach and the chest. Same version is also found in the first information Ex. P6 lodged by P.W.4 immediately after the incident. We do not find any ground to disbelieve the version of P.Ws.4, 5 and 7, in so far as it relates to complicity of accused Nos. 1 and 2 is concerned.

In the matter on hand, unfortunately, the Doctor who treated the victim at D.G. Hospital is not examined. The wound certificate Ex. P16 is marked through P.W.13 Sub-Inspector of Police, who conducted part of the investigation. The same discloses that the victim was admitted and was treated at 9.30 p.m. on 4.7.2010 i.e., within one hour of the incident in question. The victim P.W.7 has suffered the following injuries:

"(i) Lacerated wound around (5x2 cm) over left side of abdomen.

(ii) Lacerated wound around (4x1 cm) over left side of chest."

Ex. P16 i.e., wound certificate also states that the victim was an inpatient and was treated in between 4.7.2010 and 12.7.2010. It is no doubt true that the Doctor has opined that both the aforementioned injuries are grievous in nature. We are unable to accept the said opinion of the Doctor. In order to categorize any injury under the head of grievous hurt, the Court will have to take assistance of Section 320 of Indian Penal Code. Only if a particular injury falls under one of the eight categories found in Section 320 of the Indian Penal Code, the injury can be classified as grievous injury. In the matter on hand, the aforementioned two injures do not fall in any of the eight categories found in Section 320 of IPC. Hence, the injuries suffered by the victim cannot be termed as grievous injuries. Accordingly, they should be classified as simple injuries.

Since we have concluded that the victim has suffered simple injuries as mentioned supra, in the assault caused by accused Nos. 1 and 2 with knives, accused Nos. 1 and 2 are liable to be convicted for the offence under Section 324 of IPC. No case is made out against the accused for the offence under Section 307 or 326 of IPC. Had it been the intention of the accused to do away with the life of the victim, they would not have left the spot without taking his life, in as much as, the victim was unarmed and the accused were fully armed. Hence, it is not a fit case to convict the accused for the offence punishable under Section 307 or 326 of IPC. We find that the view taken by the trial Court in so far as it relates to accused Nos. 1 and 2 is not a plausible view under the facts and circumstances of the case. The said finding acquitting accused Nos. 1 and 2 in toto is unacceptable, in as much as, the material on record clearly reveals the case against accused Nos. 1 and 2 for the offence under Section 324 of IPC.

Accused Nos. 1 and 2 have already undergone imprisonment for 46 days in the present crime. It appears, the same would be sufficient punishment that can be imposed on the accused for the offence under Section 324 of IPC under the facts and circumstances of this case. Accordingly, the following order is made:

"Accused Nos. 1 and 2 (respondents 1 and 2 herein) namely, Manjunath and Krishna are hereby convicted for the offence punishable under Section 324 of IPC and they are sentenced to undergo imprisonment for the period already undergone by them. We make it further clear that since accused Nos. 1 and 2 have already undergone imprisonment, they need not be taken to custody once again in respect of the present crime.

The judgment and order of acquittal acquitting accused No. 5 Naveena @ Keecha S/o. Krishnappa (respondent No. 3 herein) stands confirmed."

We place on record the valuable assistance rendered by Sri. Sampangi Ramaiah, learned Amicus Curiae. Hence, the registry is directed to pay Rs. 10,000/- to learned Amicus Curiae.