State of Karnataka vs Sharath and Others

Mohan M. Shantana Goudar, J.—The judgment and order of acquittal dated 01.01.2009 passed by the Sessions Court/Special Court, Chikmagalur, in S.C. No. 176/2006 is appealed against by the State.

The six accused were tried and acquitted of the offences punishable under Sections 143, 148, 504, 307 r/w Section 149 of IPC.

The case of the prosecution in brief is that there was longstanding civil dispute between accused Nos. 1 and 2 on one side and P.Ws. 1, 2 and 3 on the other; P.W. 1 is the son of P.Ws. 2 and 3; it is alleged that all the accused came in a group at 8.30 p.m. on 08.03.2006 near the house of P.W. 1, armed with weapons assaulted him mercilessly, consequent upon which P.W. 1 sustained grievous injuries. The statement of P.W. 1 is recorded while he was taking treatment in the Hospital as per Ex. P1, based on which Crime No. 175/2006 came to be registered in Chikmagalur Rural Police Station for the aforementioned offences. P.W. 9-Sub-Inspector of Police of the said police station has laid the charge-sheet.

In order to prove its case, the prosecution in all examined 15 witnesses and got marked 19 exhibits and 6 material objects. On behalf of defence, 3 exhibits were got marked. The Trial Court on evaluation of material on record acquitted the accused.

Sri. B. Visweswaraiah, learned Government Pleader, submitted that Court below is not justified in ignoring the evidence of P.Ws. 1, 2, 3 and 4 who are eye witnesses to the incident in question; the evidence of witnesses more particularly the evidence of injured eye witness (P.W. 1) is fully supported by the evidence of Doctor (P.W. 11) who treated the injured; the medical record clearly discloses that victim has sustained grievous injury inasmuch as he has sustained fracture of metacarpal bone; the evidence of eye witness is consistent and cogent and the case of the prosecution is fully supported by the evidence of eye witness and the medical evidence.

Per contra, Sri. A.H. Bhagawan, learned advocate appearing on behalf of the accused argued in support of the judgment of the Court below contending that the Trial Court is justified in acquitting the accused in view of the variations in the evidence of the eye witnesses; P.Ws. 2, 3 and 4 are not actually the eye witnesses inasmuch as they have come to the spot subsequent to the incident in question; there is no material to show that sufficient light was available for P.W. 1 to see the face of the assailants. On these grounds, he prays for confirmation of the judgment of the Court below.

P.W. 1 is the injured eye witness. He has also deposed about the motive for commission of the offence. P.Ws. 2 and 3 are the parents of P.W. 1. Their evidence is on par with the evidence of P.W. 1. P.W. 4 is an independent eye witness. He has supported the case of the prosecution in part. P.W. 5 is the witness for scene of offence mahazar. P.W. 6 is the Head Constable who arrested accused No. 6. P.W. 7 is the Station House Officer during relevant point of time. He received the complaint and registered crime against the accused. P.Ws. 8 and 9 investigated into the crime. P.W. 9 laid the charge-sheet after completion of investigation. P.W. 10 is the witness for seizure mahazar. However, he has not supported the case of the prosecution. P.W. 11 is the Doctor attached to District Government Hospital, Chikmagalur. He gave treatment to the injured and issued wound certificate as per Ex. P11. P.W. 12 is the Head Constable. He went to the hospital and recorded the statement of injured (P.W. 1) as per Ex. P1 and produced the same before P.W. 7-SHO of police station. P.Ws. 13 and 14 are the witnesses for seizure mahazar. Both of them have turned hostile. P.W. 15 is another Doctor. He is attached to a private nursing home, Mangalore, wherein injured (P.W. 1) took treatment subsequently.

The case of the prosecution mainly depends upon the evidence of P.Ws. 1 to 3 and the evidence of Doctor who treated the victim. Among them, P.W. 1 is the injured eye witness.

P.W. 1 has deposed that when he was returning to his house situated at Hadedalu village, he was waylaid by accused Nos. 1 to 6 who were armed with weapons; he was assaulted mercilessly all over the body.

In the complaint (Ex. P1) lodged by P.W. 1, P.W. 1 has stated that accused No. 1 suddenly took out a chopper which was lying on the spot and assaulted on the right palm of the injured consequent upon which the injured sustained grievous injuries on the right palm; accused No. 2 was holding the gun and he threatened the victim with dire consequences; he also took out a knife and assaulted on the head of the complainant; accused No. 3 assaulted complainant on his right shoulder with club; all the three accused threatened the victim with dire consequences of taking away his life in case if he continues his litigation against them. The complaint also reveals the presence of P.Ws. 2, 3 and 4 on the scene of offence. Complainant does even pin point towards presence of accused Nos. 4 to 6. The complainant has not alleged any crime against accused Nos. 4 to 6. The complainant has alleged crime against accused Nos. 1 to 3 only in his complaint Ex. P1 which is lodged within about 7 hours from the time of incident.

However, in the evidence, P.W. 1 has improved his version by deposing that accused Nos. 4 to 6 also joined hands with accused Nos. 1 to 3 for assaulting the complainant. Such improved version by P.W. 1 is rightly disbelieved by the Court below. However P.W. 1 has deposed that accused Nos. 1 and 2 assaulted on his right hand consequent upon which he sustained grievous injuries. Though he has deposed against accused Nos. 2 and 3 also stating that they also assaulted on various parts of the body including the head, such evidence of P.W. 1 does not find support from the medical records.

The evidence of P.W. 1 insofar as assault on him is fully supported by the evidence of P.Ws. 2 and 3 who are eye witnesses to the incident in question. P.Ws. 2 and 3 are the parents of the victim. The incident has taken place near the house of the victim. On hearing galata, P.Ws. 2 and 3 came out of the house and found that P.W. 1 was being assaulted by the accused. They have also deposed that all the six accused assaulted victim by surrounding him. They further deposed that victim has sustained grievous injuries all over his body.

Though the evidence of P.Ws. 1, 2 and 3 seems to be consistent with regard to presence of accused Nos. 1 to 6 and their participation in the crime, such version seems to be an improved version before the Court. As aforementioned, the compliant -Ex. P1 lodged by injured witness does not even speak about the presence of accused Nos. 4 to 6 on the spot. Since accused Nos. 4 to 6 were not present on the spot, there is no question of they assaulting P.W. 1. So also, evidence of P.Ws. 1 to 3 insofar as assault by accused Nos. 2 and 3 is concerned does not find support from medical evidence. However, the evidence of P.Ws. 1 to 3 insofar as complicity of accused No. 1 is concerned that he assaulted P.W. 1 on his right palm is consistent and cogent with the case of prosecution and is reliable.

Wound certificate-Ex. P11 specifies that the victim has sustained injury on the right hand; X-ray showed fracture of 3rd, 4th, 5th metacarpal, fracture of distal phalanx of little finger with bone loss. The Doctor has opined that the said injury is grievous in nature. Except the said injury on the right palm, no other injury is found on any other part of the body of P.W. 1. Thus, it is clear that the victim has sustained an injury on the right palm and the same has resulted in four fractures i.e., the victim has sustained fractures of four bones of right palm. The contents of wound certificate (Ex. P11) are spoken to by the doctor P.W. 15. He has deposed that on 12.03.2006 he examined P.W. 1 who came to the hospital with the history of assault on 08.03.2006 by known persons. On examination, he found one sutured wound on the dorsum of right hand. It is also clarified by P.W. 15 that the victim had taken treatment previously at Mallegowda Hospital, Chikmagalur, wherein he underwent plastic surgery. ''K'' wire was also inserted apart from one recon plate and three miniatures screws. The implants were removed by the Doctor-P.W. 15 under surgery. Another ''K'' wire was fixed. From the aforementioned, it is clear that the victim has sustained grievous injury on the right palm.

Though we have got the evidence of P.W. 11, another doctor attached to Government Hospital, Chikmagalur, such evidence of the doctor is contrary to the evidence of P.W. 15. It is specific version of P.W. 11 that victim has sustained four injuries including on the right hand. However, according to the Doctor-P.W. 15, the victim has sustained only one injury on the right hand.

Be that as it may, the facts remains that P.W. 1 has sustained grievous injury/injuries on the right palm which can be safely attributed to the overt acts of accused No. 1 inasmuch as he was the person who assaulted on the right palm of the victim. Accused Nos. 2 and 3 allegedly assaulted P.W. 1 on other parts of the body. However, there are no corresponding injuries found on the victim''s body supporting the evidence of prosecution witnesses to implicate accused Nos. 2 and 3.

Though it is a case of the prosecution that accused No. 1 assaulted with the chopper on the right hand of the victim, there is no reliable material to show either chopper or any other dangerous weapon was used for the commission of the offence. The Inspector of Police (P.W. 8) visited the scene of offence and prepared mahazar. No weapons were seized by him inasmuch as no weapons were found laying there. He came to know that the accused took away the weapons along with them. However, strangely another Investigation Officer-P.W. 9 seized club and chopper from the spot at the instance of accused No. 4, that too on 24.06.2006 i.e., about 3 months after the incident. So also, he recovered two sickles and knife at the instance of accused No. 6 on 05.07.2006. The incident has taken place on 08.03.2006. Thus, it is clear that the aspect of recovery relied upon by the prosecution is created story. Moreover, the recoveries are not supported from independent source. Absolutely no reasons are forthcoming as to why such a belated recovery was made. It is unthinkable that a club and chopper would He on the spot for about three months after the incident in question. Therefore, use of chopper and sickle or club by accused No. 1 is not proved.

Having regard to the aforementioned material on record, we are of the opinion that the Trial Court is not justified in acquitting accused No. 1. On reappreciation of the material, we find sufficient material to convict accused No. 1 for an offence under Section 325 of IPC. We also find that the Trial Court has not assigned any valid reasons for acquitting accused No. 1. The view taken by the Trial Court is not the possible view under the trial of the case. The Trial Court has casually brushed aside the evidence of prosecution while coming to the conclusion.

Heard the learned advocates on the question of sentence. At this stage, Sri A.H. Bhagawan, learned advocate appearing on behalf of the respondents, on verification of all the records brings to the notice of the Court that Accused No. 1 has already undergone imprisonment for 89 days. Learned Government Pleader does not dispute the same. Hence, such submissions are accepted.

Sri. A.H. Bhagawan, learned advocate appearing for the accused submits that leniency may be shown having regard to the fact that incident has taken place in a spur of moment and due to boundary dispute between the villagers.

Such submissions are opposed by the learned Government Pleader.

Having regard to the totality of facts and circumstances of the case, the following order is made:

ORDER

"a) The judgment and order of acquittal passed by the Trial Court acquitting accused Nos. 2 to 6 stands confirmed.

b) The judgment and order of acquittal acquitting accused No. 1 stands set aside.

c) Accused No. 1 is hereby convicted for an offence punishable under Section 325 of IPC. He is sentenced to undergo imprisonment for a period which he has already undergone. In addition to the same, accused No. 1 is sentenced to pay a fine of Rs. 20,000/-. In default of payment of fine, accused No. 1 shall be imprisoned further for two months."

In case of recovery of fine, entire fine should be paid to the complainant (P.W. 1) namely Arun, S/o Krishnegowda.

The appeal is allowed-in-part accordingly. The judgment and order of the Trial Court is modified to the said extent.