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Karnataka High Court · body

2011 DIGILAW 776 (KAR)

Babu v. State by Basavanahalli Police

2011-08-03

A.S.PACHHAPURE

body2011
Judgment :- 1. The appellant has challenged his conviction and sentence for the offences punishable under Sections 498-A and 307 of IPC on a trial held by the Fast Track Court, Chikmagalur in S.C. NO.90/2003. 2. The facts relevant for the purpose of this appeal are as under: P.W.5 - Manjula, the injured is the wife of the appellant – accused and their marriage was held about 14 years prior to the incident. They have two daughters and a son through the wed lock. There was a fixed deposit in the name of PW.5 Manjula and also a site at Mysore in her name given by her parents. The appellant was ill-treating his wife Manjula for about six months prior to the date of the incident insisting her to transfer the amount in Fixed deposit in his name and also to sell the site to purchase a lorry for him. PW.5 was opposing the same and it is under these circumstances she was subjected to cruelty and harassment and therefore she approached family counseling center at Vijayapura. The proceedings before the counsel center is pending. 3. It is on 17.5.2003 that the members of the family counseling center advised PW.5 Manjula to bring Fixed Deposit receipt and she had brought the xerox copies and at about 12.00 noon when they were in the counseling center, the appellant insisted her to bring the other fixed deposit receipt and he went out at 12.45 p.m. saying that he will bring the xerox copies of the new fixed deposit. He returned to the counseling center armed with a long sword and at once he started assaulting PW.5 with the sword on her head, hand, back and went away with the sword. PW.5 fell down unconscious and she was shifted to Government Hospital, Chikmagalur for treatment. On the same day at about 2.00 p.m., the appellant surrendered before the Basavanahalli police along with the sword and informed about the assault made by him on his wife. He also produced the sword before the police officers. In the meanwhile, PW.4 a counseling member submitted a complaint about this incident to the police and it is thereafter that the said complaint was registered in Crime No.55/2003 for the offence punishable under Section 307 IPC. He also produced the sword before the police officers. In the meanwhile, PW.4 a counseling member submitted a complaint about this incident to the police and it is thereafter that the said complaint was registered in Crime No.55/2003 for the offence punishable under Section 307 IPC. Thereafter PW.10 – the Investigating Officer held investigation and recorded the statement of PW.5 and other witnesses; held spot mahazar as per Ex.P.11 in the presence of PW.9; secured PW.6 – a photographer obtained photographs as per Ex.P4 to P.7 and Ex.P.8 (negative); M.O.1 sword, M.Os.7 and 8 being the cloths of the appellant were seized in the presence of PW.7 under mahazar Ex.P.9, whereas clothes on the body of the injured were seized under the mahazar Ex.P.10 in the presence of PW.8. The injury certificate was collected and on completion of the investigation charge sheet came to be filed against the appellant for the offences punishable under Section 498-A and 307 IPC. 4. During the trial, the prosecution examined PWs.1 to 10, got marked documents Exs.P.1 to P.15 and M.Os.1 to 8. The statement of the accused was recorded under Section 313 Cr.P.C. The accused took the defence of total denial. The trial Court after hearing the parties and on appreciation of the materials on record convicted the accused for the charges under Sections 498-A and 307 IPC and ordered sentence of imprisonment and fine. Aggrieved by the judgment of conviction and order of sentence, the present appeal has been filed by appellant/accused. 5. On the earlier dates of hearing, the counsel for the appellant was absent and thereafter she has also filed memo of retirement. In the circumstances, as there was no assistance, Sri.A.V.Ramakrishna, Advocate was appointed as Amicus Curiae to represent the appellant. 6. I have heard the learned Amicus Curiae appearing for the appellant and also the learned High Court Government Pleader. 7. In the facts and circumstances of the case, the point that arise for my consideration is, “Whether the appellant has made out any grounds to warrant interference in his conviction and sentence ordered by the trial Court for the offences punishable under Sections 498-A and 307 IPC?” 8. 7. In the facts and circumstances of the case, the point that arise for my consideration is, “Whether the appellant has made out any grounds to warrant interference in his conviction and sentence ordered by the trial Court for the offences punishable under Sections 498-A and 307 IPC?” 8. It is the contention of the learned Amicus Curiae that PW.5 – Manjula the injured has turned hostile and the conviction ordered by the trial Court on the basis of the evidence of other witnesses is both erroneous and illegal. It is also his submission that looking to the nature of the injuries suffered by PW.5 at the most the offence would fall under Section 326 IPC and as there is no intention to cause death, the conviction is both illegal and erroneous. Furthermore he submits that the appellant was in custody for about 11 months and the sentence of imprisonment may be confined to the period for which the appellant was in custody. On these grounds the learned Amicus Curiae has sought for setting aside the conviction and the order of sentence. 9. Per contra, learned High Court Government Pleader supporting the Judgment and order of the court below submits that the injured has suffered as many as 12 injuries at the hands of the appellant, which are grievous in nature. PW.4 is an independent eyewitness being the member of the family counseling center and there is nothing to disbelieve her evidence. On these grounds he has sought for dismissal of the appeal. 10. PW.3 – Dr. Jagannath examined PW.5 Manjula injured on 17.5.2003 at about 1.00 p.m. As could be seen from his evidence, the injured had sustained the following injuries in addition to other injuries: (1) an incised injury on the left cheek measuring 20 cm. x ½ cm. (2) an injury on the shoulder cutting the muscles and the bone. (3) an incised injury on the left shoulder measuring 10cms bone deep. (4) an incised wound on the left arm. (5) incised injuries on the left leg, left wrist, left thumb was cut. (6) 4 incised wounds on the back. (7) incised wound on the back of the head measuring 10 cms x 2 cms. (8) incised wound over the head measuring 20 cm x 1 cm. Ex.P.12 is the injury certificate and the Doctor has opined that the injuries are grievous in nature. (6) 4 incised wounds on the back. (7) incised wound on the back of the head measuring 10 cms x 2 cms. (8) incised wound over the head measuring 20 cm x 1 cm. Ex.P.12 is the injury certificate and the Doctor has opined that the injuries are grievous in nature. So as to be seen from these injuries it may be said that to cause such injuries a sharp edged weapon must have been used in the assault. 11. The further contention of the accused is that the injured Manjula (PW.5) the wife of the appellant has turned hostile to the prosecution, when so many injuries are sustained by her which are referred to supra. The reason for her hostility is not stated. After treating her hostile, she has been cross examined by the Prosecutor in which she states that it is not her husband who has caused the assault and that the persons who caused the assault are her other relatives. If really, some other person other than her husband had caused the assault, there was no difficulty for PW.5 to lodge a complaint to the Police implicating the real persons who actually caused the assault. PW.4 is a member of the family counseling and she consistently states in her evidence that on that day, when PW.5 Manjula came with her husband, the appellant went back to bring the Xerox copies of the F.D. receipts and he was holding sword in his hands and abruptly caused the assault at different parts of the body of Manjula. If some other person other than the appellant had caused the assault, there was no reason for PW.4 to implicate the appellant. She is an independent witness having no interest either with PW.5 or with the accused. So when an independent witness comes forward before the Court to say that it is the appellant who actually caused the assault on the injured and actually went to the Police Station and lodged the complaint against the appellant, no malafides could be attributed against PW.5 for arraying the appellant as the accused. Furthermore, so far as the relationship between PW.5 and the appellant is concerned, PW.1 the elder sister of PW.5, PW.2 the daughter of PW.1 consistently state in their evidence about the cruelty and harassment meted out by PW.5 in the hands of the appellant. Furthermore, so far as the relationship between PW.5 and the appellant is concerned, PW.1 the elder sister of PW.5, PW.2 the daughter of PW.1 consistently state in their evidence about the cruelty and harassment meted out by PW.5 in the hands of the appellant. They also state that prior to the incident, on many occasions, the appellant had caused the assault on his wife and was harassing her to pay the money which was in Fixed Deposit and also to transfer the site in his name and to sell the same for the purpose of purchasing a lorry. PWs.1 and 2 are none else than the close relatives of Manjula PW.5. They do not speak about any strained relation between other persons or other relatives except with the appellant. They also further state having been informed about the assault by the appellant on PW.5. They went to see PW.5 Manjula to the hospital. So this natural circumstance which has been brought on record in the evidence of the prosecution would clearly establish that PW.5 Manjula has withheld the facts pertaining to the assault by her husband the appellant herein and to either save him or save her own skin, has gone to the extent of deposing falsely before the Court and therefore, I am of the opinion that mere treating PW.5 as hostile witness is itself not sufficient to dislodge the other independent evidence brought on record. 12. PW.1 is a Police Officer and it is the case of the prosecution that after the assault by the appellant, he went with the sword to the Police Station and his clothes were blood stained. So also, the weapon MO.1 and he stated before the Police having caused the assault on his wife. If, as stated by PW.5, her other relatives had caused the assault, there was no necessity for the police officers to implicate the appellant as the accused. The evidence of PW.10 is very much clear about the arrival of the appellant to the Police Station with blood stained clothes, the sword and they were seized under the mahazar Ex.P.9. Though the attesting witness PW.7 has turned hostile to the prosecution, there is nothing to disbelieve the evidence of the Investigating Officer who seized the weapons from the hands of the accused and also the blood stained clothes. Though the attesting witness PW.7 has turned hostile to the prosecution, there is nothing to disbelieve the evidence of the Investigating Officer who seized the weapons from the hands of the accused and also the blood stained clothes. Another aspect that is to be considered is that the blood stained clothes of the injured PW.5 which are at MOs.2 and 3, the clothes of the appellant MOs.7 and 8 the weapon Mo.1 were sent for the report of the FSL. After examination of these articles, it has been submitted that ‘A’ group blood was found on all these five articles. So, it is the appellant who came with the sword before the Police Officer and ‘A’ group blood stains were found on the edge of the said weapon. So also, the clothes of the appellant were blood stained with ‘A’ group blood. Likewise, the clothes of PW.5 the injured. These circumstances brought on record connects the appellant with the crime. So taking into consideration these all circumstances, I am of the opinion that the prosecution has proved the incident by the evidence of PWs.4, 1, 2 and other circumstances stated above. 13. The appellant wanted the money in the Fixed Deposit and to sell the site in the name of his wife to purchase a lorry. It is in these circumstances that as PW.5 had refused either to pay the money in Fixed Deposit or to sell the sites, that an assault has been caused by the appellant on different portions of the body. He was holding a sword and in case, if he had an intention to cause the death, he could have caused the assault on vital organ, so that the deceased could have lost her life. Instead, he caused the assault on hands, legs, back, shoulder and some injuries on the face and these injuries on different parts of the body does not indicate the intention of the appellant to cause the death. So, in the circumstances, the conviction of the appellant for the offence punishable under Section 307 IPC has to be set aside, altering his conviction to Section 326 IPC. 14. So, in the circumstances, the conviction of the appellant for the offence punishable under Section 307 IPC has to be set aside, altering his conviction to Section 326 IPC. 14. So far as the offence under Section 498-A IPC is concerned, there is consistent version of PWs.1, 2 and other circumstances stated above, they would go to establish that the appellant was causing harassment to his wife for payment of the fixed deposit money and also for sale of the site to purchase the lorry and therefore, there is ample material even for the offence under Section 498-A IPC. 15. So, in the context of the circumstances stated above, the conviction for the offence under Section 307 IPC and the sentence of imprisonment has to be altered to Section 326 IPC and the sentence of imprisonment has to be reasonably imposed. The learned Amicus Curiae has relied upon the decision of this Court reported in 1998 (4) Crimes 409 (State of Karnataka by Saidapur Police, Gulbarga District v. Ramanna) wherein, the accused was punished for the offence under Section 304 (II) IPC and he was in custody for about six months and the case was pending for 8 ½ years. In the circumstances, the sentence was confined to his custodial period. Placing reliance on this decision, he sought for reduction in the sentence for the offence under Section 326 IPC. Taking into consideration, the number of injuries that were sustained by the injured in the hands of the appellant on different parts of the body, which are reflected even in the photographs produced and also looking to the conduct of the appellant all along in causing harassment, threat to his innocent wife PW.5, I do not think that the sentence could be reduced to the extent of the confinement in custody during the investigation. In that view of the matter, I answer the point partly in affirmative and partly in negative and proceed to pass the following: ORDER The appeal is allowed in part. The conviction of the appellant for the offence under Section 307 IPC is set aside. He is acquitted of the said charge. In that view of the matter, I answer the point partly in affirmative and partly in negative and proceed to pass the following: ORDER The appeal is allowed in part. The conviction of the appellant for the offence under Section 307 IPC is set aside. He is acquitted of the said charge. He is convicted for the offence punishable under Section 326 IPC and is ordered to undergo R.I. for three years and to pay fine of Rs.15,000/-, in default, to undergo S.I for one year and so far as the sentence for the offence punishable under Section 498-A IPC is concerned, it is maintained and confirmed. The bail bonds of the appellant stands cancelled. The bail bonds of the appellant stands cancelled. The Trial Court is directed to secure the presence of the accused to undergo the sentence. The fees of the Amicus Curiae is fixed at Rs.5,000/- and the State shall pay the same.