State of Karnataka vs Umesha

Mohan M. Shantanagoudar, J.—The judgment and order of acquittal dated 30.11.2012 passed by the Principal Sessions Judge, Mandya, in S.C.No.22/2011, is called in question in this appeal by the State.

By the impugned judgment and order, the trial Court has acquitted the accused of the offence punishable under Section 307 of IPC.

The case of the prosecution in brief is that the accused and the injured (P.W.1) namely, Boregowda were known to each other since several years and they had money transaction; the accused was due to the injured a certain sum of money and when the injured started demanding for repayment of money, the accused called him to Holalu Circle on 28.9.2010; accordingly at 1.00 p.m. on 28.9.2010 injured went to Holalu Circle on his motorcycle, wherein he met the accused; the accused pleaded his inability to repay the money and requested for some more time for the payment of money; the injured insisted him for payment of money then and there itself, but the accused told the injured that he would make arrangements for money in Swarnasandra, in as much as, certain people may pay him money at Swamasandra, so saying, accused took the injured on the motorcycle of the injured towards Swamasandra village; the injured was riding the motorcycle and the accused was a pillion rider; when they were so proceeding near the bus shelter of Swarnasandra at about 1.40 p.m.; at that point of time, accused told the injured that injured would insist for money only if he is alive and therefore. he would be finished; so saying, the accused stabbed on the right lateral portion of the chest of the injured; consequent upon which, the injured sustained bleeding injury; the knife which was having 25 cm. length was employed by the accused to stab the victim; out of 25 cm. the handle was measuring about 11 cm. meaning thereby, the sharp edged iron blade of the knife was to the extent of 14 cm; the entire 14 cm. of blade went inside the right side chest of the victim; immediately, the victim fell on the ground; the incident has happened on Bengaluru-Mysuru highway near Swamasandra; number of people including P.W.2 gathered on the scene and shifted the injured to Mandya Government Hospital wherein he was treated by the Doctors.

The statement of the injured Boregowda was recorded in Mandya Government Hospital by the Sub-Inspector of Police (P.W.10), Mandya East Police Station as per Ex.P1 wherein he was taking treatment. Based on the said statement Crime No. 194/2010 was registered by P.W.10 in Mandya East Police Station for the offence under Section 307 of IPC. The very Sub-Inspector completed the investigation and laid the charge-sheet.

In order to prove its case, the prosecution in all examined 12 witnesses, got marked 22 exhibits and 7 material objects. On behalf of the defence one witness is examined. As mentioned supra, the trial Court has acquitted the accused.

Sri. Vijayakumar Majage, learned Addl. SPP taking us through the material on record has submitted that the trial Court has erred in not properly considering the evidence of P.Ws.1 and 2 in proper perspective. The evidence of P.Ws.1 and 2 fully supporls the case of the prosecution. Absolutely, no reason much less valid reason is assigned by the trial Court for coming to the conclusion. He further submits that the evidence of P.Ws.1 and 2 is fully supported by the medical evidence; there is no reason as to why P.W.1 should implicate any other person than actual culprit; the identity of the accused also cannot be in dispute, in as much as, the incident has taken place in the broad day light at about 1.45 p.m; moreover the accused and P.W.1 were knowing each other and were proceeding together in the motorcycle of the injured. On these among other grounds, he prays for conviction of the accused under Section 307 of IPC.

Per-contra, learned advocate for the defence argued in support of the judgment of the Court below. According to him, the presence of P.W.2 is doubtful and there was no reason for him to remember the face of the accused. According to him, identification parade ought to have been held by the investigation officer. The injured has purposely implicated the accused falsely in the crime, in as much as he had animosity with the accused.

Before proceeding further it would be relevant to note the version of each of the witnesses.

P.W.1. is the injured eye-witness. He has lodged the complaint as per Ex.P1. He has deposed about the motive for commission of the offence, about the actual incident and about taking of treatment by him in the hospital. He has identified his blood stained shirt, banian, pant and the knife i.e., M.Os.1 to 4 respectively.

P.W.2 was the passerby during the relevant point of time and was a pillion rider on a scooter. He saw the incident in question. He is the eye-witness to the incident. He helped the victim for shifting him to hospital in an ambulance. He is the witness for scene of offence mahazar Ex.P2. He has also identified M.Os.1 to 4.

P.W.3 is the brother of the injured. After hearing the news, he came to the hospital and shifted the injured from Mandya Government Hospital to Apollo Hospital, Mysuru. Since the knife was handed over by the Doctor to him he in turn handed over to the police officer after treatment.

P.W.4 is another brother of injured P.W.1. His evidence is also on par with the evidence of P.W.3. He is also the witness for panchanama Ex.P3 under which the blood stained clothes and knife were seized.

P.W.5 is another witness for panchanama Ex.P3 under which M.Os.1 to 4 were seized.

P.W.6 is the witness for panchanama Ex.P2. He identified the photographs of the scene as per Exs.P4, P5 and P6 as well as M.Os.5 and 6.

P.W.7 is the Assistant Professor working at Government Hospital, Mandya. He has deposed that injured P.W.1 was brought to the hospital at 2.10 p.m. on 28.9.2010 and he removed the knife from the body of the victim. He sent the victim to Mysuru hospital for higher treatment; he has also deposed that the statement of the victim was recorded by the police in his presence as per Ex.P1. The very Doctor has recorded the history as given by P.W.1 before him about the incident on the case-sheet. He has produced the accident register extract as per Ex.P7. Since he has removed M.O.4 from the body of the victim, he identified the knife as M.O.4. He has also deposed about handing over the knife to the concerned person.

P.W.8 is another person who drew the blood sample of the victim on 2.11.2010. He identified the handwriting of Dr.Habibjan in the accident register extract as per Ex.P7.

P.W.9 is the another witness for seizure mahazar Ex.P10 under which blood stained clothes of accused were seized on 28.9.2010. He identified the blood stained clothes of accused as M.O.7.

P.W. 10 is the Sub-Inspector of Police. He visited the hospital and recorded the statement of the victim as per Ex.P.1, based on which, he registered the crime and sent FIR as per Ex.P.11 to jurisdictional magistrate. He conducted the investigation in full and laid the charge-sheet.

P.W. 11 Dr. Habibjan is attached to Mandya Hospital. He has deposed that he examined the injured and removed the knife from the body of the victim. He has spoken about the entries made in the accident register as per Ex.P.7.

P.W. 12 is the doctor attached to Apollo Hospital, Mysuru. According to him, the injured was admitted to the said hospital on 28.9.2010 and discharged from the said hospital on 04.10.2010. The hospital case-sheets marked at Ex.P.21 are produced by him. He has also identified the MLC register extract as per Ex.P22.

From the aforementioned narration it is clear that the case of the prosecution rests on the version of two eyewitnesses P.Ws.1 and 2 and the evidence of the doctors P.Ws.7, 8, 11 and 12. The Forensic Science Laboratory report also supports the case of the prosecution.

The incident has taken place at about 1.45 p.m. on the national highway i.e., Banga-lore-Mysuru road when the injured was riding the motorcycle over which, the accused was a pillion rider; P.W. 1 has deposed that he knew the accused since many years and that there were many transactions between the two; as the accused owed certain sums of money to P.W. 1/injured and as the said money was not repaid by the accused, the injured insisted for repayment of money; the accused took the injured on his motorcycle on the pretext of repaying the money at Swamasandra village; when they reached bus shelter of Swarnasandra village, the accused in order to avoid payment of money to the injured, stabbed him with the knife M.O.4 on his right lateral side of the chest while the injured was riding the motorcycle; obviously, the accused was having the intention to save himself from repayment of the money; P.W. 1 has deposed about the entire incident graphically and meticulously; each and every detail of the crime is spoken to by P.W. 1 before the Court. The knife was totally measuring about 25 cms. and the blade had been completely pierced on the right side chest of the victim. Even when the injured fell to the ground from the motorcycle because of the injury sustained, the knife was pierced into the body and was not taken out. Immediately, after the incident, the ambulance was called for by the public at large including P.W.2 and the injured was shifted to Mandya Government Hospital. Even when the injured was shifted to Mandya Government Hospital, the knife was embedded into the body of the victim. The sharp edged blade was inside the body of the victim and only the handle portion of the knife was peeping outside the body. The knife was removed by the Doctors P.W.7 and P.W. 11 and thereafter, the victim was sent to Mysuru hospital for higher treatment. All these factors are deposed to by P.W.1 meticulously. Though P.W.1 was subjected to lengthy cross-examination nothing worth is elicited by the defence.

The evidence of P.W. 1 is fully supported by the evidence of P.W.2. It is not in dispute that P.W.2 is an independent eyewitness. He is not related to anybody including the victim. By chance he was going as a pillion rider in another scooter at the time of the incident. He also helped the victim for shifting him to the hospital with the help of public at large. He has also deposed as to the manner in which the incident has taken place. He has identified the accused also.

Even assuming that P.W.2 is a chance witness, we do not find any ground to discard his evidence merely because he is a chance witness. Even otherwise, the evidence of P.W. 1/injured should not have been ignored by the trial Court. His presence on the scene cannot be doubted. Since the accused was known to P.W.1 for a long lime, there is no dispute with regard to identity of the accused also. The motive for commission of the offence is also clearly spoken to by the injured. The victim was shifted to Mandya District Government hospital at 2.10 p.m. i.e., within about 15-20 minutes for treatment. As mentioned supra, the knife was embedded in the body of the victim even when the victim was shifted to the hospital. Curiously and strangely, the trial Court has not at all assigned any valid reason for disbelieving the version of P.Ws.1 and 2 except making certain observations, which are wholly irrelevant. The trial Court has not assigned any reason much less valid reason for disbelieving the versions of P. W''s. 1 and 2, more particularly, the evidence of P.W 1. In our considered opinion, the trial Court has proceeded most casually while appreciating the evidence of the eyewitness.

The evidence of P.W. 1 is fully supported by the evidence of the Doctors. P.W. 7 was the Doctor who was present at the time of admission of the victim in Mandya Government Hospital. Ex.P7 is the case-sheet maintained by the said hospital. ''Hie Doctor has recorded the history as "assault at Swamasandra, Mandya around 1.45 p.m. on 28.9.2010 stabbed by Umesh probably by knife or metal rod due to quarrel". From the history recorded it is amply clear that the Doctor himself was not very much sure as to whether the weapon used was a knife or iron rod, in-as-much as, the weapon was inside the body (except the handle portion). It is also mentioned in the case-sheet that the weapon was taken out from the right lateral side of the chest portion. The handle portion was 4.5 inch it was seen outside the body. Thus, it is clearly recorded in the case-sheet by P.W.7 that the entire blade portion of the knife was inside the body and only the handle portion was seen outside the body. The knife was removed by the Doctor P.W.7 and the victim was requested to be shifted to Mysuru hospital for higher treatment. All these facts are deposed by P.W.7 before the Court. He has further deposed that during the course of treatment, the police officer came to the hospital and recorded the statement of P.W.1, inasmuch as, the victim was in a position to speak.

The evidence of P.W.7 is supported by the evidence of Doctor P.W. 11. P.W. 11 is another Doctor attached to Mandya Government Hospital. He has also deposed that the weapon was embedded in the right lateral side chest portion of the victim while the victim was admitted to the hospital. He has further deposed that the weapon was removed from the body in his presence by P.W.7. Thus, the evidence of P.W.11 fully supports the version of P.W.7. Both these Doctors treated the victim in Government hospital, Mandya and both of them advised him to be shifted to Mysuru hospital for higher treatment. Though these witnesses were subjected to lengthy cross- examination by the defence, nothing worth is elicited to discard their testimony.

On meticulous perusal of the version of the eyewitnesses PWs. 1 and 2 and the versions of the Doctors P.Ws.7 and 11, it is amply clear that the accused and the accused alone has committed the offence and because of stabbing by the accused, the victim has sustained grievous injury.

The injury certificate Ex.P16 is issued by Apollo BGS Hospital, Mysuru. As mentioned supra, after primary treatment at Mandya hospital and after removal of knife from the body of the victim by P.Ws.7 and 11, the victim was sent to Apollo BGS Hospital, Mysuru for higher treatment.

P.W. 12 is the Doctor of the said hospital. He has deposed based on the records maintained in the said hospital. The version of P.W. 12 clearly reveals that the victim was brought to Apollo BGS Hospital at 3.45 p.m. on 28.9.2010 with the history that he was stabbed with the help of knife by one Mr. Umesh (accused). When the victim was admitted to BGS Apollo Hospital, the injury was sutured and the sutured portion was about 4 cms. in length. The said Doctor has opined that certain amount of blood was removed from the situs of the injury on the body of the victim and failure to remove the blood would have resulted in death of the victim. Though P.W. 12 was not the Doctor who treated the victim, his evidence cannot be brushed aside fully, inasmuch as, he has deposed based on the records maintained by the BGS hospital. Even otherwise, ignoring the evidence of P.W. 12, it is amply clear from other records that the victim had sustained grievous injury because of stabbing of the accused.

The Doctor P.W.11 has also deposed that in case if the knife and certain amount of blood collected were not removed, the injured would have lost his life. It is also clarified by P.W. 11 that since the entire weapon was in side the body except the handle portion, he was confused at the first instance i.e., at the time of admission of the patient as to whether the weapon used was an iron rod or a knife.

From the aforementioned facts and circumstances, it is amply dear that the victim has suffered grievous injury and accused was responsible for the same, inasmuch as, he stabbed the victim with the help of M.O.4 while he was riding the motorcycle.

We find the evidence of P.Ws.1, 2, 7 and 11 consistent, cogent and reliable. Then evidence fully supports the case of the prosecution. Their evidence is not impeached in the cross-examination by the defence.

The Doctor P.W.8 has collected the blood sample from the body of the victim. The blood stained clothes of the victim as well as blood stained shirt of the accused were seized during the course of investigation. The blood stained mud was also collected under the panchanama. All the articles so seized were sent to Forensic Science Laboratory for examination. Ex.P18 is the Forensic Science Laboratory report which clarifies that all the articles sent for examination including the clothes of the victim as well as shirt of the accused were stained with human blood and all of them were having ''A'' group of blood. Even the sample blood collected from the body of the victim was ''A'' group as is clear from Ex. P19. If really, the accused is innocent, there was no reason as to why his shirt should contain ''A'' group of human blood which matches with the blood group of the injured. Even otherwise, the ocular testimony of P.W.1 prevails over any expert''s opinion. In the matter on hand, fortunately for the prosecution, even the expert''s opinion fully supports the ocular testimony of P.Ws.1 and 2, more particularly, the evidence of P.W.1.

As mentioned supra, we find that the trial Court has not at all assigned valid reasons for coming to the conclusion. The Presiding Officer of the trial Court has proceeded casually while acquitting the accused. The trial Court ought to have considered the evidence on record in proper perspective while coming to the conclusion. On reconsidering the entire material on record and for the reasons mentioned supra, we wholly disagree with the reasons assigned and the conclusions arrived at by the trial Court.

Be that as it may, having regard to the totality of the facts and circumstances and as the accused did not attempt to repeatedly stab the victim and as he did not take undue advantage of the helpless condition of the victim during the relevant point of time, we feel the offence may not fall under Section 307 of IPC, but the same falls under Section 326 of IPC. Having heard the learned advocates on the question of sentence and having found that the accused has already undergone 2� months imprisonment, we pass the following order:

(i) The judgment and order of acquittal dated 30.11.2012 acquitting the accused for the offence under Section 307 of IPC stands modified.

(ii) The accused is convicted for the offence under Section 326 of IPC.

(iii) He is sentenced to undergo imprisonment for one year and to pay fine of Rs.2,00,000/-. In case of default of payment of fine, the accused shall undergo further imprisonment for two years.

(iv) In case of recovery of fine, the entire fine amount shall he paid to the injured P.W.1 namely, S.K. Boregowda, as compensation under Section 357 of Cr.P.C.

(v) The accused is entitled to set-off for the period which he has already undergone imprisonment.

Appeal is allowed in part, accordingly.