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2010 DIGILAW 797 (KAR)

H. Gopala v. State of Karnataka

2010-07-12

A.S.PACHHAPURE

body2010
Judgment :- A.S. Pachhapure, J. 1. The appellant has challenged his conviction and sentence for the offence punishable under Section 326 IPC on a trial held by the Sessions Judge, Tumkur. 2. Sans unnecessary details, the prosecution version unfolded during the trial is as under: PW. 1-Nagaraju is an employer of the accused and had taken the accused for labour work as a night watchman during the performance of a contract work. The wages of the accused were not paid and therefore, there was some quarrel between the complainant and the accused. It is stated that on 27.4.2003 at about 8.15 p.m. in the open site behind Sri Veerashaiva Kalyana Mantapa, Tumkur, the accused picked up a quarrel with the complainant for not giving the wages and with an intention to cause the death stabbed on the abdomen of the complainant resulting into grievous injury and there by said to have committed the offence punishable under Section 307 IPC. After the incident, the injured was taken to the hospital. The investigation Officer recorded the complaint Ex.P.1, held the spot mahazar Ex.P.2 and recorded the statements of the witnesses. He seized the shirt of the injured (MO.1) under the Mahazar Ex.P.3 and also the knife MO.2 under Ex.P.4. After arrest of the accused, he recorded the voluntary statement of the accused, collected the FSL report and on completion of the investigation, filed the charge-sheet. 3. During the trial, the prosecution examined PWs.1 to 6 and in their evidence not marked the documents Exs.P.1 to P.10 and MOs.1 and 2. the Statement of the accused was recorded under Section 313 Cr.P.C. He has taken the defense of total denial and has not led any defense evidence. The Trial Court after hearing the Public Prosecutor and the Counsel for the accused and on appreciation of the material on record convicted the appellant for the charge under Section 326 IPC and ordered him to undergo rigorous imprisonment for three years and to pay fine of Rs.2,000/- and aggrieved by the said order, this appeal has been preferred. 4. I have heard the learned counsel for the appellant and also the Additional State Public Prosecutor for the respondent-State. The point that arise for my consideration is: 5. 4. I have heard the learned counsel for the appellant and also the Additional State Public Prosecutor for the respondent-State. The point that arise for my consideration is: 5. It is the submission of the learned counsel for the appellant that except the interested version of PW.1, there is no material on record and the Doctor who treated the injured is not examined in the Trial Court and therefore, he submits that the conviction ordered by the Trial Court is illegal and reverse. Per Contra, the Additional State Public Prosecutor supports the impugned judgment and order of the Trial Court. 6. As could be seen from the prosecution evidence led, CW.7 is the doctor who treated PW.1 in the hospital and issued the injury certificate Ex.P.9. So far as the proof of this injury certificate is concerned, the prosecution has not taken any pain to examine the Doctor. The Trial Court in para 19 of the judgment has observed that summons were issued to CW.7 on several occasions and as he did not turn up, the wound certificate has been marked through PW.6 the Investigating Officer as Ex.P.9 and the same reveals that the injured had suffered an incised wound about 6 x 4 cms on the left side of the abdomen with momentum protruding 10cms. Lateral to the umbilicus. It is stated that the emergency abdominal utlrasonography was done at Raghu Scanning Centre and emergency operation was done the Doctor has opined that the above injury is grievous in nature and the contents of this injury certificate Ex.P9 were taken into consideration by the Trial Court in holding that the complainant has suffered a grievous injury. 7. It is well-established principle of law that mere marking of a document is not a proof of its contents. The Investigating Officer PW.6 had no personal knowledge of the contents of the certificate and the mere fact that the injury certificate Ex.P9 is marked in his evidence is not sufficient to prove the contents. 8. The question as to whether the injured PW.1 had suffered grievous injury or otherwise is an opinion expressed by the doctor by issuing the injury certificate Ex.P.9. The contents of that certificate will have to be proved only by examining the Doctor who is the author unless there are such circumstances which compel the Court to entertain the secondary evidence. The question as to whether the injured PW.1 had suffered grievous injury or otherwise is an opinion expressed by the doctor by issuing the injury certificate Ex.P.9. The contents of that certificate will have to be proved only by examining the Doctor who is the author unless there are such circumstances which compel the Court to entertain the secondary evidence. The perusal of the judgment reveals that the summons were issued to CW.7. on several occasions and he did not appear. So far as securing the presence of the witness is convened, Chapter VI of Cr.P.C. deals with the process to compel the appearance of the witness. Whenever the summons is issued by the Court and the witness does not appear, the Court is at liberty to issue bailabe or non-bailable warrant and even if by issuing such process, the witnesses do not appear, the Court can issue proclamation and issue warrant for attachment of properties. It is only after exhausting all these provisions that the Court can dispense with the examination of the witness and permit the prosecution to produce secondary evidence. Mere issuance of summons on several occasions without recourse to the further provisions of Chapter VI of Cr.P.C., in my opinion is improper and illegal. When a document has to be produced and when such document is an expression of opinion by the Doctor, it is necessary for the prosecution to examine the author of the document so that the other party will have an opportunity to cross-examine the witness and such evidence could be taken into consideration to assess as to whether PW.1 sustained a grievous injury or otherwise. So in the absence of this evidence it cannot be said that the contents of injury certificate Ex.P.9 can be accepted. 9. It was the duty of the learned Public Prosecutor and the Trial Court to see that the witness CW7 is secured and examined when there is a failure on the part of both the Court and also the Public Prosecutor, I think it is just and proper to remit the matter back to the Trial Court as it is not possible to give a finding as to whether the injured sustained a grievous injury or otherwise. In the view of the matter. In the view of the matter. I answer the point in affirmative and proceed to pass the following: “Whether the judgment and order convicting the appellant for the charge under Section 326, IPC is illegal and perverse?” ORDER The appeal is allowed. The conviction and sentence ordered by the Trial Court against the appellant in SC No.84 of 2006 for the offence under Section 326 IPC is set aside. The matter is remitted back to the Trial Court with a direction to secure the presence of CW-7 after taking steps by the Public Prosecutor and to record the evidence of the Doctor and dispose of the case in accordance with law. Any opinion expressed on the merits of the case in the body of the judgment shall not be taken into consideration by the Court below.