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Karnataka High Court · body

2010 DIGILAW 385 (KAR)

D. G. Gurumurthy v. State of Karnataka

2010-03-26

B.V.PINTO

body2010
Judgment :- This appeal is filed by the appellants against the judgment of conviction and sentence passed by the Addl. Sessions Judge, Shimoga in S.C. 170/2006 by order dated 28.6.07, convicting the appellants of the offence under Ss.307, 341 and 323 r/w S.34 IPC and sentencing appellant No.1 to undergo Rigorous imprisonment for five years and to a pay fine of Rs.20,000/-, in default to undergo Simple Imprisonment for 3 years and sentencing appellant No.2 undergo simple imprisonment for 3 years. 2. Heard Sri Dinesh Kumar, learned counsel for the appellants and Smt A R Sharadamba, learned Addl. Govt. Advocate for State. 3. The case of the prosecution is that on the basis of a complaint of one A.N.Prakash, the Shimoga Police registered a case in their Crime No.288/04 for an offence under Ss.323, 324 506-II r/w S.34 IPC and commenced investigation. The allegations in the complaint is that appellant No.1 Gurumurthy on 15.6.04 at about 4-30p.m., near Umblebylu check post, with a common intention to do away with the life of CW-2 Manjunath gave a blow on his neck with a chopper, with an intention of causing his death and further at the same place, date and time, restrained CW-2, thereby they have committed offences under Sec.307,341 r/w 34 IPC. It is the further allegation of the complainant-that on the said place, date and time, the 2nd appellant Sudhakara has also assaulted Manjunath by hand, thereby committed an offence under Sec.323 r/w 34 IPC. 4. In order to prove its case, the prosecution has examined in all 9 witnesses PWs.1 to 9 and got marked Ex.P! to P8 and produced Mos.1 and 2. The defence of the appellants is one of total denial. Both the appellants have totally denied the allegations made in their 313 Cr.P.C. statement recorded from them and have filed written statement of defence, but they have not examined any witnesses on their behalf. 5. PW-1 is one A.N.Prakash who has stated before the court that the injured PW-2 is his brother and that the appellants hail from a nearby village. CW-3 Parameshi is from their village. On 15.6.04, at about 4.30 p.m. near Umbalebylu check post, his brother Manjunath and CW-3 Parameshi went to ask for money for supplying sand. The hotel of CW-4 Hanumanthappa is situated at the check post. CW-3 Parameshi is from their village. On 15.6.04, at about 4.30 p.m. near Umbalebylu check post, his brother Manjunath and CW-3 Parameshi went to ask for money for supplying sand. The hotel of CW-4 Hanumanthappa is situated at the check post. At about 5.20p.m., he heard that his brother has been assaulted by Gurumurthy and Sudhakara and that his brother was shifted to Mc.gann hospital and found his brother Manjunath in the hospital with an injury on his left neck and left lip. He noticed that the injuries were caused by chopper. Manjunath was not in a position to speak. He went to the police station and gave a complaint as per Ex.P-1. PW-1 states that one Harish belongs to their village and appellant No.2 Sudhakar and Harish are related to each other. When Harish got married, his brother Manjunath had mediated. It is the allegation of appellant No.2 since the girl was not proper, Harish’s life has been spoiled and therefore, Appellant No.2 had some ill will towards his brother Manjunath. 6. PW-2 is A.N.Manjunath, the injured in this case. He has stated that he knows Harish and he married with one Padma. Harish and Padma were happily leading a married life before this incident. He was in cordial terms with Harish. It is in his evidence that on 15.6.04 at about 4.30 p.m., he and Parameshi reached the checkpost in order to receive money for supplying sand. He was with CW-4 Hanumanthappa who is running a hotel at the check post and at that time, the appellants were inside the hotel. Both the appellants thereafter took some verbal fight with him and appellant No.1 assaulted him with a chopper on the left side of his neck and on the left lip. He sustained bleeding injuries. His clothes were also got blood stained. The said incident has been witnessed by CW-3 Parameshi, CW-4 Hanumanthappa and CW-5 Suresh. Thereafter, he was removed to Mc.gann hospital and CWs.3 to 5 snatched chopper from the hands of Gurumurthy appellant No.1. He further stated that his brother Prakash came to the hospital and at that time, he ws not in a; position to speak. Thereafter the police came and seized the blood stained clothes from him and he was shifted to KMC hospital at Manipal for further treatment. He was treated for 15 days in the said hospital. He further stated that his brother Prakash came to the hospital and at that time, he ws not in a; position to speak. Thereafter the police came and seized the blood stained clothes from him and he was shifted to KMC hospital at Manipal for further treatment. He was treated for 15 days in the said hospital. After discharging from the hospital, again he took treatment for one more week and his left hand has been operated. In the cross examination, he states that appellant No.1 is not his friend and there is no connection between himself and appellant No.1. He further says that Padma the wife of Harish is not related to him and that both Padma and Harish belong to same community. He further says that he has not mediated in the marriage of Padma and Harish and he has no connection with the said marriage. 5. PW-3 is Parameshi. It is in his evidence that he had gone to the check post along with Manjunath at about 4.30 p.m., on the date of incident. But as soon as he reached there, it started raining and he went to the hotel of Hanumanthappa and at that time, appellant No1 gave a blow with a chopper on the neck of Manjunath. Thereafter he went inside the hotel. The injured was taken to the hospital and appellant No1 ran away from the scene of offence. 6. PW-4 is Hanumanthappa who is running a hotel near the check post. He has turned hostile to the prosecution case and his evidence is of no use for the prosecution. PW-5 is one Suresh who has also not supported the case of the prosecution and has been treated hostile by the prosecution and cross examined by the Public Prosecutor. PW-6 Aziz Khan who is carrying agricultural work has also been treated hostile for having not supported the case of the prosecution. PW-7 is retired Asst. Sub Inspector who says that at about 8.30 p.m., on 15.6.04 when he was in the police station at Shimoga rural police station, PW-1 Prakash gave a written complaint which has been registered by him in Crime No.188/04 and issued FIR to the court. He has further stated that appellant No.1 came for anticipatory ball, he was arrested and released on bail. 7. PW-8 Dr. He has further stated that appellant No.1 came for anticipatory ball, he was arrested and released on bail. 7. PW-8 Dr. Gangadharappa is the Medical Officer of Mc.gann hospital, Shimoga who says that about 5.15 p.m., one person by name Manjunath was brought to the hospital and he has observed the following injuries on his person: (1) One lacerated wound of 3” x ½” x 1” under the left neck; (2) one lacerated wound over the left lip measuring 11/2 cms.x 1 cm x ½ cm. He has further stated that the injury suffered by PW-1 is of grievous nature and this, he says on the basis of the report of one Dr. Shyamsundar Bhat who is a Medical Officer at KMC hospital, Manipal. The wound certificate is marked at Ex.P-7. The certificate issued by Dr. Shyamsundar Bhat of Manipal hospital is marked at Ex.P-8. In the cross examination, he has stated that the injured was brought to the hospital by one Lokesh and further he has stated that if a person fails on a rough surface, injuries found on the person of PW-2 are possible. 8. PW-11 is the Inspector of Police who has conducted the investigation and filed charge sheet in this case. 9. Sri Dinesh Kumar, learned counsel for the appellants submits that the prosecution has not examined Lokesh whose name is found in Ex.P-7 as the person who has accompanied the injured to the hospital. It is seen from Ex.P-7 that one Lokesh had accompanied the injured. The certificate dies not mention the name of the assailant nor the time at which the injuries have been caused nor the nature of the weapon alleged to have been used for the commission of offence by the assailant. It is only mentioned in Ex.P-7 that the injuries are said to have been caused on 15.6.04 and due to assault. 10. According to the prosecution, the motive for the assault is that appellant No.1 had mediated for the marriage of Padma with Harish and that the relationship between Padma with Harish and that the relationship between Padma and Harish was not cordial and the life of Harish was spoiled, whereas in the evidence of PW-2 Manjunath, it is brought on record that Harish and Padma are living together happily as husband and wife. Therefore, the motive alleged by the prosecution is falsified. 11. Therefore, the motive alleged by the prosecution is falsified. 11. Learned counsel for the appellants submits that Dr. Shyamsundar Bhat who has issued Ex.P-7 has not been examined. Therefore, the nature of injuries as per Ex.P-8 are not proved. Further there are two injuries mentioned in Ex.P-7 and PW-8. Dr.Gangadharappa speaks only about two injuries on the person of PW-2, whereas Ex.P-8 contains four injuries. There is no explanation as tow why these injuries as mentioned in Ex.P-8 differ from the injuries mentioned in Ex.P-7. He has further stated that since Dr. Shyamsundar Bhat is not examined, the contents of Ex.P8 are not proved by the prosecution. 12. On a careful examination of the material placed on record, it is seen that in Ex.P-1 the complaint, the name of Sudhakar has been over written by putting white ink and nobody has spoken about the discrepancy in so far as that name is concerned. On this ground alone, the participation of appellant No.2 in the crime is suspicious. Therefore, he is entitled to the benefit of doubt. 13. So far as Ex.P-1 the complaint is concerned, it is mentioned that one Parameshi has got admitted the injured in Mc.gann hospital whereas Ex.P-7 mentions the name of Lokesh as the person accompanying the injured. The said Lokesh has not been questioned by the Police nor examined in the court. PW-3 Parameshi further states that Lokesh has not accompanied the injured and the Manjunath himself went to the hospital in the bus. This shows that neither the version of Parameshi is truthful nor the entry in Ex.P-7 is correct. The prosecution has not made any effort to clarify this glaring discrepancy in its case. Hence, discrepancy as mentioned above does not inspire confidence in the mind of the court and I am of the opinion that the prosecution has not come out withy true story. 14. So far as the motive aspect is concerned, Ex.P-1 speaks of some ‘old enmity’ whereas PW-1 in the court states that one Harish and appellant No.1 are relatives and when Harish got married, injured Manjunath was a mediator. Since the said girl is not proper and Harish’s life has been spoiled, appellant No.1 had enmity with Manjunaththe injured. 14. So far as the motive aspect is concerned, Ex.P-1 speaks of some ‘old enmity’ whereas PW-1 in the court states that one Harish and appellant No.1 are relatives and when Harish got married, injured Manjunath was a mediator. Since the said girl is not proper and Harish’s life has been spoiled, appellant No.1 had enmity with Manjunaththe injured. PW-2 Manjunath on the other hand, states in his evidence that Harish and his wife are living happily and that he has not mediated in respect of the marriage of Harish. 15. Hence, it is seen that the two important witnesses PWs.1 and 2 speak differently about the motive for the crime. This conduct of PW-1 and PW-2 who are brothers inter se, does not inspire the mind of the court with confidence to rely on their evidence to base a conviction. 16. PW-4 Hanumanthappa who runs a hotel at the check post is the person near which hotel the alleged assault took place according to PW-3 Parameshi. This PW-4 has totally denied the incident and has not supported the case of the prosecution, PW-5 G Suresh, another eye witness has also not supported the case of the prosecution. 17. PW-6 Aziz Khan from whom the accused are alleged to have secured the weapon MO-2 ‘Machchu’ to assault the injured has also not supported the case of the prosecution. 18. PW-11 the Sub Inspector of Police states that ‘Machchu’ was produced by PW-3 Parameshi whereas PW-3 does not state in his evidence that he had produced Mos.1 and 2 before the Police. 19. From the above discussion, it is seen that the evidence adduced by the prosecution is full of infirmities and surmises and does not inspire confidence in the mind of a prudent person to record an order of conviction. 20. Therefore, on a proper re-appreciation of evidence on record, I hold that the prosecution has miserably failed to prove the guilt of the appellants beyond reasonable doubt. Hence, they are entitled for an order of acquittal. 21. In the result, the appeal is allowed. The order of conviction and sentence is set aside and the appellants/accused are acquitted of the charges leveled against them. The bail bonds, if any, executed by the appellants are cancelled. The fine amount, if any, deposited by the appellants shall be returned to them.