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2011 DIGILAW 600 (KAR)

Shivakumar N. v. State of Karnataka

2011-06-14

B.V.PINTO

body2011
JUDGMENT B.V. PINTO, J.—This appeal is filed challenging the judgment dated 29.6.2004 passed by the Fast Track Court-I at Mandya in S.C. No. 47/1998 convicting the appellant for the offence under Section 307 of I.P.C. and sentencing him to undergo R.I. for a period of three years and to pay a fine of Rs. 30,000/-, in default to undergo S.I. for a period of six months. 2. It is the case of the prosecution that on 25.6.1996 at about 8.30 p.m. near a circle at 9th Cross of Shankara Nagar, Mandya Town, the accused stabbed the complainant on his abdomen and chest with knife and caused him bleeding injury and if the same had caused the death of the injured Chandrashekar he would have been guilty of the offence of murder and thereby the accused is alleged to have committed the offence under Section 307 of I.P.C. 3. The prosecution in order to prove the case has examined in all 8 witnesses and got marked Exs. P1 to P8 and produced MOs 1 and 2. The defence of the accused was one of total denial. However, the learned Sessions Judge has found him guilty of the offence and convicted and sentenced him as aforesaid. The convicted accused has filed this appeal. 4. Heard Sri. H.C. Hanumaiah, learned Counsel for the appellant and Sri. Vijaya Kumar Majage, learned HCGP for the State. 5. Leaned Counsel for the appellant submits that the incident is alleged to have been taken place due to the accused teasing the daughter of aunt of P.W. 5 and when P.W. 5 questioned the accused as to why he is teasing the girl, he has alleged that the accused has stabbed the injured on his chest and stomach. The prosecution has neither cited the girl nor her mother as witness and has also not examined the said girl to show that such an incident of teasing a girl has occurred. The prosecution has neither cited the girl nor her mother as witness and has also not examined the said girl to show that such an incident of teasing a girl has occurred. He further submits that for the first time on the next day P.W. 5 the injured comes out with the name of the accused and he has not disclosed the name to the Doctor when he was produced on the same day night before P.W. 7, He submits that due to some old enmity, the complainant has filed this case and it is further not shown that at the time of incident there was light at the vicinity to identify both the accused and the weapon. Under the circumstances, he submits that the order of conviction suffers from illegality and impropriety insofar as the involvement of the accused in the commission of the offence. Hence, he submits that the order of conviction may be set aside. 6. The learned HCGP on the other hand submits that the evident of P.W. 5 itself is cogent and clear. His evidence before the Court is corroborated by the complaint and also the evidence of witness P.W. 7-Dr. Ashwathanarayana who has testified that the injured has suffered three grievous injuries on his person. Therefore, he submits that the order of conviction does not call for interference. He submits that seat of injury is chest which is a vital part of the body. The injury caused on P.W. 5 itself indicates that there was an intention to commit murder of the injured. He submits that if the treatment was not given immediately to P.W. 5 in the Mysore Hospital the injured would have succumbed to the stab injury caused by the accused and, therefore, even the head of conviction does not call for interference and, therefore, he submits that the appeal is devoid of merits and the same may be dismissed. 7. The prosecution in this case commenced with recording of the statement of the injured Chandrashekar by the Police as per Ex. P4 on 26.6.1996 at about 11.00 a.m. In the said complaint it has been stated by the complainant-injured Chandrashekar that he is residing in Kuvempu Nagar, Mandya and on 25.6.1996 at about 8.30 p.m. he had gone for collection of Auto charge to 9th Cross of Shankara Nagar and was waiting there for the Driver. P4 on 26.6.1996 at about 11.00 a.m. In the said complaint it has been stated by the complainant-injured Chandrashekar that he is residing in Kuvempu Nagar, Mandya and on 25.6.1996 at about 8.30 p.m. he had gone for collection of Auto charge to 9th Cross of Shankara Nagar and was waiting there for the Driver. At that time the accused, the 3rd son of Police Ningaiah by name Shivakumar came there and the complainant asked the accused as to why he is teasing his aunt’s daughter and at that time the accused assaulted him. He also assaulted the accused and at that time one Mahadeva and Raju came there and they had separated them. Thereafter, the accused had gone to his house and brought a knife and suddenly assaulted him on his chest and also assaulted on his stomach and caused bleeding injuries. The accused told him that he will not leave him and was saying that he will kill him. The witness by name Raju and Mahadeva later on took the injured in an Auto to the Hospital. By that time he informed his brother about the incident and all of them came to Government Hospital, Mandya. The Doctor at the Hospital advised them to shift the injured to K.R. Hospital, Mysore and accordingly, he was taken to Mysore K.R. Hospital. He was admitted as an inpatient in the said Hospital. He has stated that the knife used for assaulting him has been taken by E. Raja and he has kept the same in his house and he has prayed for action. 8. The Police on receipt of the said complaint registered the case in Crime No. 122/1996 for the offence under Section 307 of I.P.C. and commenced the investigation. On completion of investigation charge-sheet came to be filed. During the trial, P.W. 1-E. Raju, P.W. 2-Satish and P.W. 3-Lakshmana have turned hostile to the case of prosecution and have not supported the complainant’s version. P.W. 4 K. Chikka Hutchaiah, ASI had gone to the K.R. Hospital, Mysore and recorded the statement of the injured-Chandrashekar and registered the case in Crime No. 122/1996. Thereafter, he has issued FIR and transmitted the FIR to the Court. He has seized the knife from possession of E. Raju as per Ex. P1 and further investigation is handed over to the PSI P.W. 8-P. Nagesh Kumar. 9. P.W. 5 is the injured. Thereafter, he has issued FIR and transmitted the FIR to the Court. He has seized the knife from possession of E. Raju as per Ex. P1 and further investigation is handed over to the PSI P.W. 8-P. Nagesh Kumar. 9. P.W. 5 is the injured. He has stated in the same manner as is found in the complaint. He has specifically identified MO-1-knife used for the commission of the offence. In the cross-examination it is suggested to him that the accused is not the person who has assaulted and some one else has assaulted him while going for collection of auto fare. It is also suggested to him that he is deposing falsely regarding teasing of the daughter of his aunt. It is further suggested that MO-1 is not the weapon used for commission of the offence. 10. P.W. 6-Rajashekar is the brother of P.W. 5. He arrived at the spot immediately after the incident and thereafter he has removed the injured to the Hospital. He has produced the shirt of his brother as per MO-2 to the Police and has signed Ex. P1-Mahazar. 11. P.W. 7-Dr. Ashwathanarayana Swamy, the Senior Specialist in Mandya General Hospital has stated that P.W. 5 was brought on 25.6.1996 at about 8.45 p.m. with the history of assault. He has found three injuries on the person of P.W. 5 and the patient was further referred to K.R. Hospital, Mysore. He has stated that as per the discharge slip from K.R. Hospital the injured was an inpatient and taken treatment at K.R. Hospital and according to the wound certificate the injuries 1 to 3 are grievous in nature. He has further stated that if P.W. 5-injured was not treated immediately, it would have resulted in his death and the injuries were caused by MO-1. 12. P.W. 8-Nagesh Kumar, Inspector of Police has filed the charge-sheet after the receipt of FSL report and other documents. It is from the evidence of the witnesses that the learned Sessions Judge has found guilty and has convicted the accused and sentenced him as aforesaid. 13. On a careful consideration of the entire materials on record, it is seen that at the outset the prosecution has suppressed the real reason for the commission of the offence namely, teasing of the daughter of aunt of the injured-P.W. 5 which is the root cause for the incident. 13. On a careful consideration of the entire materials on record, it is seen that at the outset the prosecution has suppressed the real reason for the commission of the offence namely, teasing of the daughter of aunt of the injured-P.W. 5 which is the root cause for the incident. The prosecution has not even cited the said girl or her mother to show that the said girl was teased on the date of incident which has resulted in the altercation between the accused and P.W. 5. Secondly, nowhere in the Mahazar-Ex. P2, it is stated that there was light when the incident took place and, therefore, the possibility of P.W. 5 identifying the accused and the weapon is remote. Further, it is the case of P.W. 5 that the knife was taken by E. Raju-P.W. 1 and it is the case of the prosecution that MO-1-knife was seized from the possession of E. Raju. However, E. Raju is examined as P.W. 1 who has totally turned hostile to the case of prosecution both regarding the incident and regarding the recovery of knife from his possession. The FSL report which is marked as Ex. P8 also does not state as to the group of blood in which the shirt MO-1 and knife-MO2 were stained. 14. Under the circumstances, the very happening of the incident at the place and time as alleged by the prosecution becomes doubtful in view of treating the witnesses P.Ws. 1 to 3 as hostile. Under the circumstances, I am of the opinion that the prosecution has not proved the case against the accused beyond reasonable doubt and accordingly the accused is entitled for an order of acquittal. 15. In the result, the appeal is allowed. The order of conviction passed against the accused is hereby set aside and the accused is acquitted of the offence levelled against him. Bail bond executed by the accused is discharged and the fine amount deposited shall be refunded to the accused.