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2013 DIGILAW 1322 (KAR)

Shivanna v. State of Karnataka by Gandasi Police

2013-11-21

N.ANANDA

body2013
Judgment : 1. The appellants (hereinafter referred to as 'accused 1 to 4') were tried for offences punishable under sections 341, 114, 323, 324 & 307 r/w 34 IPC. Accused 1 to 4 are convicted and sentenced for offences punishable under sections 341, 323, 324 & 326 r/w 34 IPC. Therefore, they are before this court. 2. I have heard Sri Hashmath Pasha, learned counsel for accused and Sri B.T.Venkatesh, learned SPP for State. 3. In brief, the case of prosecution is as follows:- Accused No.1-Shivanna is the father of accused No.2- Nagaraja and accused No.3-Vasanthakumar and elder brother of accused No.4-Ramaiah. The house of PW4- Shivanna and accused No.1-Shivanna are situate opposite to each other in Kenkere Village, within the jurisdiction of Gandasi Police Station, Gandasi Hobli, Arasikere Taluk. The accused and PW4 are adjoining land owners. There was pre- existing enmity between family members of accused and family members of PW4. On 16.09.2004 at about 9.30 p.m., PW4 and his son were sitting in front yard of house of PW4, accused 1 to 4 had let loose their goats to the front yard of house of PW4. PW4 got annoyed and asked accused 1 to 4 as to why they had let loose their goats. At that time, accused 2 & 3 assaulted PW4 with a knife and a chopper and caused grievous injuries to PW4. The eye-witnesses and family members of PW4 intervened and rescued PW4 from hands of accused. At the first instance, PW4 was treated in Primary Health Centre at Gandasi and later he was shifted to S.C.Hospital at Hassan. The first information was lodged by PW4. The Investigating Officer visited the place of incident and recorded statements of witnesses and completed formalities of investigation to submit final report against accused 1 to 4 for offences punishable under sections 341, 114, 323, 324 & 307 r/w 34 IPC. The State has not challenged acquittal of accused 1 to 4 for an offence punishable under section 307 r/w 34 IPC. In my opinion, the learned trial Judge having framed charge for an offence punishable under section 307 r/w 34 IPC, should not have framed charges for offences punishable under sections 341, 323, 324 and 326 r/w 34 IPC as an offence under section 307 IPC is an aggravated form of offences under sections 341, 323, 324 & 326 IPC. In my opinion, the learned trial Judge having framed charge for an offence punishable under section 307 r/w 34 IPC, should not have framed charges for offences punishable under sections 341, 323, 324 and 326 r/w 34 IPC as an offence under section 307 IPC is an aggravated form of offences under sections 341, 323, 324 & 326 IPC. It is not the case of prosecution that accused had assaulted and caused injuries to different victims. 4. In this appeal, following points would arise for determination:- (1) Whether prosecution has proved that accused 1 to 4 with common intention had assaulted PW4 with a knife and a chopper and caused grievous injuries to PW4 and thereby committed an offence punishable under section 326 r/w 34 IPC? (2) Whether trial court has properly appreciated evidence on record? (3) Whether the impugned judgment calls for interference? (4) To what order?" 5. In order to prove the guilt of accused, prosecution has relied on the following:- (i) Motive; (ii) Direct evidence and (iii) Medical evidence. Motive: 6. The fact that family members of accused and family members of PW4 including PW4 were at loggerheads and had frequent quarrels near their lands has not been controverted by accused. The prosecution has relied on direct evidence of PW4 and other witnesses. In the circumstances, presence or absence of motive is not of any consequence. It is true that prosecution has relied on evidence of witnesses, who are inimical to accused. However, that by itself is not a ground to discard their evidence. The court has to scrutinise the evidence of these witnesses. 7. PW4-Shivanna is the injured eye-witness. In the circumstances, presence or absence of motive is not of any consequence. It is true that prosecution has relied on evidence of witnesses, who are inimical to accused. However, that by itself is not a ground to discard their evidence. The court has to scrutinise the evidence of these witnesses. 7. PW4-Shivanna is the injured eye-witness. PW4 has deposed; there was pre-existing enmity between accused and PW4; at the time of incident, accused had let loose their goats to the front yard of house of PW4; when PW4 questioned accused No.4; accused No.4 came and held him and fisted on his left eye; accused No.1 fisted on face and head of PW4; accused No.4 instigated other accused to finish PW4; at that time, accused No.2 was armed with a knife; accused No.3 was armed with a chopper; accused No.2 assaulted on left side of chest of PW4 with a knife; accused No.3 assaulted on left wrist of PW4 with a chopper and caused injuries; clothes of PW4 were stained with blood; witnesses namely PW5-Eshwarappa, PW6-Lakshmi, PW7- Ningamma, PW10-Kumaraswamy and PW11-Dharmendra came and saved PW4 from the hands of accused. During cross-examination, PW4 has admitted there was pre-existing enmity between PW4 and accused. PW4 has admitted that house of accused is situate at a distance of 40 feet from the house of accused and they are opposite to each other. PW4 has admitted that there was brief quarrel before he was assaulted by accused. PW4 has deposed; his wife and daughter-in-law came out of house when he was being assaulted by accused. PW4 was the injured witness. PW4 would be least disposed to implicate accused 1 to 4, leaving aside real assailants. PW4 has denied suggestion that he had suffered injuries in a motor cycle accident. 8. PW5-Eshwarappa is the neighbour of PW4. PW5 has deposed; on the date of incident, accused and PW4 were quarreling and abusing each other; PW5 separated quarrel; PW4 had suffered injuries to his hand; PW5 snatched weapons from hands of accused; they could witness the incident in light shed by streetlamp post. During cross-examination, PW5 has admitted that PW4 was shifted to hospital on a motorcycle. PW4 was able to speak. 9. PW5 has half-heartedly supported the case of prosecution. During cross-examination, PW5 has admitted that PW4 was shifted to hospital on a motorcycle. PW4 was able to speak. 9. PW5 has half-heartedly supported the case of prosecution. Yet, evidence of PW5 would support the case of prosecution that there was an incident of assault near the house of PW4 at the time and on the date put forth by prosecution. 10. PW6-Lakshmi is the daughter-in-law of PW4. PW6 has deposed; on the date of incident, accused had let loose their goats to front yard of house of PW4; when PW4 questioned accused, they assaulted PW4; accused 1 & 4 were holding PW4; accused No.3-Vasanthkumar assaulted on shoulder of PW4 with a chopper and accused No.2-Nagaraja, with a knife, stabbed on left side of chest of PW4; PW6 and her mother-in-law (PW7) tried to rescue PW4 from hands of accused; PW6 and PW7 were pushed away by accused. During cross-examination, PW6 has reiterated that when she was in their house, she heard noise of quarrel; PW6 saw that accused were assaulting PW4. PW6 has deposed; 10-15 persons had gathered near place of incident even before PW6 reached place of incident; police recorded statement of PW6 during morning of the following day. Apart from this, nothing has been elicited to discredit the evidence of PW6. 11. PW7-Ningamma is the wife of PW4. The evidence of PW7 is more or less similar to evidence of PW6. During cross-examination, PW7 has reiterated version given in her examination-in-chief. 12. PW10-Kumaraswamy is the son of PW4. PW10 has deposed; accused No.4 was holding PW4; accused No.2- Nagaraja stabbed PW4 with a knife; accused No.3- Vasanthakumar assaulted on left wrist of PW4 with a chopper; accused 1 & 4 were holding PW4. During cross-examination, PW10 has reiterated version given in examination-in-chief. PW10 has admitted that there was previous enmity between family members of accused and family members of PW4. PW10 has deposed about injuries suffered by PW4 on left side of chest and left wrist. PW10 has denied suggestion that PW4 had suffered injuries while travelling on a motorcycle with PW10. 13. PW11-Dharmendra is the son of PW4. PW10 has admitted that there was previous enmity between family members of accused and family members of PW4. PW10 has deposed about injuries suffered by PW4 on left side of chest and left wrist. PW10 has denied suggestion that PW4 had suffered injuries while travelling on a motorcycle with PW10. 13. PW11-Dharmendra is the son of PW4. PW11 has deposed; at the time of incident, accused had let loose their goats to the front yard of house of PW4; when his father (PW4) questioned accused; accused No.2 assaulted PW4 on left side of chest with a knife and accused No.3 assaulted on left wrist of PW4 with a chopper; thereafter, accused No.4 came there and instigated accused 2 & 3. PW11, his brother (PW10) and other persons saved PW4 from accused and PW4 was shifted to hospital. During cross-examination, PW11 has deposed; incident of assault took place at about 8.45 p.m. or 9 p.m.; before PW11 could reach place of incident, about 10-15 persons had gathered near place of incident. 14. Thus, on overall appreciation of evidence, we find though there are minor discrepancies, evidence of injured (PW4) and eye-witnesses does not suffer from discrepancies as it relates to assault on PW4 by accused 2 & 3. The injured and other witnesses have deposed; accused 1 & 4 were holding PW4 and accused No.2 assaulted on left side of chest of PW4 with a knife and accused No.3 assaulted on left wrist of PW4 with a chopper. If accused 1 & 4 had held PW4 either from front side or back side of PW4, it could not have been possible for accused 2 & 3 to assault PW4 with a knife and a chopper. Above all, PW11 has admitted that accused 1 & 4 reached place of incident after PW4 was assaulted by accused 2 & 3. 15. The aforestated witnesses viz PW5-Eshwarappa, PW6- Lakshmi, PW7-Ningamma, PW10-Kumaraswamy and PW11- Dharmendra have deposed that incident of assault on PW4 was preceded by a brief quarrel; accused had let loose their goats near house of PW4. Therefore, PW4 questioned accused. 16. The presence of accused 1 to 4 near place of incident, which is nearer to their house is natural. The evidence of injured and eye-witnesses that accused 2 & 3 assaulted PW4 with a chopper and a knife near place of incident does not suffer from any material discrepancies. Therefore, PW4 questioned accused. 16. The presence of accused 1 to 4 near place of incident, which is nearer to their house is natural. The evidence of injured and eye-witnesses that accused 2 & 3 assaulted PW4 with a chopper and a knife near place of incident does not suffer from any material discrepancies. The assault was not pre-meditated. The assault was due to a sudden quarrel. The evidence of injured and eye- witnesses is not sufficient to hold that accused 1 to 4 had shared a common intention to assault PW4. In the circumstances, the learned trial Judge was not justified in invoking section 34 IPC. 17. The medical evidence of PW1-Dr.C.S.Dinesh would reveal that he had examined PW4 at about 9.30 pm., on 16.09.2004 in Primary Health Centre at Gandasi and found following injuries:- I. A cut injury on left side of chest with emphysema. II. A lacerated injury measuring 2 inches x ¼ inch on left wrist III. Swelling below left eye measuring 1 inch x 1 inch. PW1 had referred PW4 to S.C.Hospital at Hassan. After receipt of report from S.C.Hospital at Hassan, PW1 has opined that PW4 had suffered fracture of VII rib of left side. During cross-examination, PW1 has admitted that police had not sent M.O.1 & M.O.2 (a chopper and a knife) for his opinion whether injuries suffered by PW4 could be caused by M.O.1 & M.O.2. 18. Thus, we find evidence of injured witness (PW4) and other witnesses finds substantial corroboration from medical evidence. In the discussion made supra, I have held that there is no evidence on record to invoke section 34 IPC. The evidence of prosecution witnesses is not sufficient to hold that accused 1 to 4 had shared a common intention to assault PW4. In the circumstances, the learned trial Judge was not justified in invoking section 34 IPC. The accused could be convicted for the individual acts committed by them. The prosecution in order to prove that PW4 had suffered fracture of VII rib of left side, has not produced x- rays and x-rays report. The prosecution has not examined doctor, who had treated PW4 in S.C.Hospital at Hassan. Therefore, it can safely be inferred that injuries suffered by PW4 were simple in nature and injuries were caused by a knife and a chopper. The prosecution has not examined doctor, who had treated PW4 in S.C.Hospital at Hassan. Therefore, it can safely be inferred that injuries suffered by PW4 were simple in nature and injuries were caused by a knife and a chopper. There is inconsistent evidence of eye- witnesses that accused No.2 had assaulted on left side of chest of PW4 with a knife and accused No.3 had assaulted on left wrist of PW4 with a chopper. The evidence of injured witness and medical evidence are sufficient to prove that accused 2 & 3 had assaulted PW4 with dangerous weapons and caused simple injuries to PW4. Therefore, I hold accused 2 & 3 guilty of an offence punishable under section 324 IPC. 19. The learned trial Judge without proper appreciation of evidence and facts and circumstances and genesis of occurrence has invoked section 34 IPC to fasten vicarious liability on accused 1 to 4. The learned trial Judge has failed to notice whenever there is use of criminal force, there is an element of wrongful restraint. Therefore, conviction of accused 1 & 4 for offences punishable under sections 341, 323, 324 & 326 r/w 34 IPC cannot be sustained. 20. As already stated, evidence on record would reveal that accused 2 & 3 assaulted PW4 with dangerous weapons such as a knife and a chopper and committed an offence punishable under section 324 IPC. 21. Sri Hashmath Pasha, learned counsel for accused would submit that incident of assault was not pre-meditated. Accused 2 & 3 do not bear criminal antecedents. Accused and PW4 are neighbours. In the circumstances, accused 2 & 3 are entitled to benefit of section 4 of Probation of Offenders Act, 1958 (for short, 'P.O.Act'). 22. The learned State Public Prosecutor would submit that from evidence on record, it is proved that accused 2 & 3 had wielded dangerous weapons like a knife and a chopper on PW4. Above all, incident of assault was as a result of quarrel. Accused 2 & 3 had carried dangerous weapons like a knife and a chopper. This court has altered an offence punishable under section 326 IPC to section 324 IPC for lack of medical evidence. Therefore, accused 2 & 3 are not entitled to benefit of P.O. Act. 23. Above all, incident of assault was as a result of quarrel. Accused 2 & 3 had carried dangerous weapons like a knife and a chopper. This court has altered an offence punishable under section 326 IPC to section 324 IPC for lack of medical evidence. Therefore, accused 2 & 3 are not entitled to benefit of P.O. Act. 23. On hearing learned counsel for parties and bearing in mind the background of incident and also nature of weapons wielded by accused 2 & 3, I hold they are not entitled to benefit of section 4 of P.O. Act. Having regard to extenuating and mitigating circumstances, I deem it proper to sentence accused 2 & 3 to undergo simple imprisonment for a period of three months and pay fine of Rs.5,000/- each, in default to undergo simple imprisonment for a period of one month for an offence punishable under section 324 IPC. 24. In the result, I pass the following:- ORDER The appeal is accepted in part. The impugned judgment is modified. Accused 1 & 4 are acquitted of offences punishable under sections 341, 323, 324 & 326 r/w 34 IPC. Accused 2 & 3 are acquitted of offences punishable under sections 341, 323, 326 r/w 34 IPC. Accused 2 & 3 are convicted for an offence punishable under section 324 IPC. Accused 2 & 3 are sentenced to undergo simple imprisonment for a period of three months and pay fine of Rs.5,000/- each, in default to undergo simple imprisonment for a period of one month for an offence punishable under section 324 IPC. The bail bonds executed by accused 1 & 4 shall stand cancelled. The period of detention undergone by accused 2 & 3 during trial is given set off as provided under section 428 Cr.P.C. The rest of the impugned judgment is confirmed. Office is directed to send back records along with a copy of this judgment to trial court.