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2013 DIGILAW 502 (KAR)

NATARAJ v. STATE BY AJJAMPURA POLICE

2013-04-10

A.S.PACHHAPURE

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JUDGMENT A.S. PACHHAPURE, J.-The appellant has challenged his conviction and sentence for the offence punishable under Section 326 IPC on a trial held by the Fast Track Court at Tarikere. 2. The facts relevant for the purpose of this appeal are as under: PW6-Basappa is the resident of Kanabagatte village situated within the limits of Ajjampura police station. PW8-Rajappa is his son, whereas PW11-Girijamma is the daughter and PW9-Omkaramma is his wife. He is the nephew of PW12-Manja. He was elected as a member of the Mandal Panchayat, Bukambudi and was responsible to install a public tap near the house accused No. 2. To avoid the accumulation of the tap water, a gutter was also provided. On 4.1.2000 at about 10.30 a.m. when he was passing in the colony near the house, the accused including the appellant having formed an unlawful assembly and armed with chopper and clubs came and threatened him stating that he has not removed the public tap despite many requests and have abused him. Accused Nos. 2 and 3 said to have held PW6-Basappa and accused No. 9-Gullamma threw chilly powder in the eyes and the appellant (accused No. 1) assaulted him with the chopper and he sustained injuries. The other accused also surrounded him and assaulted with the clubs. Meanwhile PW12-Manja and others intervened. By that time Ajjampura police came in a car and shifted him to the government hospital at Bukambudi and as no doctor was there, he was shifted to Birur hospital. The Head Constable recorded his complaint Ex.P7 and produced it before PW14-ASI. It was registered in Crime No. 4/2000 and the complaint-Ex.P7, the FIR-Ex.P11 were sent to the Magistrate. PW14-the Investigating Officer went to the scene of occurrence and in presence of PW2-Thippeshappa and others held the spot mahazar Ex.P2 and seized the chopper MO.1 and clubs MOs.2 to 5. He recorded the statements of the witnesses. The clothes (Mos.6 and 7) of the injured produced by PW4 were seized under the mahazar Ex.P6. He sent the seized articles to the opinion of the experts. After collecting the injury certificates and other relevant documents, charge sheet was filed against the appellant and the other accused for the charges under Sections 143, 148, 341, 504, 324 and 307 read with 149 IPC. He sent the seized articles to the opinion of the experts. After collecting the injury certificates and other relevant documents, charge sheet was filed against the appellant and the other accused for the charges under Sections 143, 148, 341, 504, 324 and 307 read with 149 IPC. During the trial, the prosecution examined PWs.1 to 14 and got marked the documents Exs.P1 to P11 and MOs.1 to 7. The statement of the accused were recorded under Section 313 Cr.P.C. No defence evidence was led. Anyhow, they have got marked Exs.D1 and D2 the contradictions in the statement of PW9. The trial Court after hearing the counsel for the parties and on appreciation of the material on record convicted the appellant (accused No. 1) for the charge under Section 326 IPC, acquitting all other accused and ordered the appellant to undergo rigorous imprisonment for a period of three years and to pay fine of Rs. 3,000/-, in default to undergo rigorous imprisonment for six months. Aggrieved by the conviction and sentence, the present appeal has been filed. 3. I have heard Sri K.V. Narasimhan, the learned counsel for the appellant and also the learned High Court Government Pleader. 4. The point that arises for my consideration is: "Whether the appellant has made out any grounds to warrant interference in the conviction and sentence ordered by the trial Court for the offence under Section 326 IPC?" 5. The learned counsel for the appellant would contend that there is abnormal delay in lodging the FIR and as the complainant has changed his version by improving his case to falsely implicate the appellant and the other accused and it is very much clear from the discrepancies in the evidence of the injured. He would also contend that except the relatives of PW6 the injured, no independent witnesses have been examined and the evidence of the interested witness is itself insufficient to award conviction. He submits that the evidence of the doctor-PW10 certifying the injuries to be grievous cannot be accepted as he has not produced the relevant documents. So also he submits that relating to the treatment of PW6-Basappa in other hospitals, the documents have not been produced and PW1 does not speak about the treatment of PW6 and hence he would contend that this inconsistency is sufficient to reject the prosecution version. So also he submits that relating to the treatment of PW6-Basappa in other hospitals, the documents have not been produced and PW1 does not speak about the treatment of PW6 and hence he would contend that this inconsistency is sufficient to reject the prosecution version. Even as regards the weapons there are inconsistent version and the evidence of PW8-Rajappa, PW11-Girijajamma, PW9-Omkaramma and PW12-Manja cannot be accepted in view of all the material discrepancies in their evidence. It is his further submission that, the FSL and serology reports cannot be accepted, as the Investigating Officer has not taken the sample blood of the injured for comparison. On these grounds he would contend that the conviction and sentence ordered by the trial Court are erroneous and illegal and therefore sought for setting aside the same. 6. On the other hand, the learned High Court Government Pleader supporting the judgment and order of the trial Court contends that the evidence of the injured is corroborated by the medical evidence and the trial Court after scanning the material placed on record has rightly removed the grains from the chaff and that the appellant has not made out any grounds to warrant interference in the conviction and sentence. 7. In the complaint Ex.P7 though PW6-Basappa states that a gutter was formed to allow the sewage water to pass, 15 days earlier to the complaint there is improvement in his version and he states that the work of forming the gutter was carried on, on the date when the incident occurred. Further more, though in the compliant he attributed a role to accused No. 9-Gullamma having thrown chilly power in his eyes, he does not say so in his evidence. He does not speak even to the role of accused Nos. 2 and 3 holding him at the time of assault with the chopper by the appellant, though it was stated in the complaintEx.P7. These discrepancies do not go to the route of the prosecution case. They cannot be called material discrepancies. He does not speak even to the role of accused Nos. 2 and 3 holding him at the time of assault with the chopper by the appellant, though it was stated in the complaintEx.P7. These discrepancies do not go to the route of the prosecution case. They cannot be called material discrepancies. As could be revealed from the complaint Ex.P7 and the evidence of PW6-Basappa, it is stated that on 4.1.2000 at about 10.30 a.m. when he was passing near the house, the accused formed an unlawful assembly armed with chopper and clubs, quarreled with him and accused No. 1 (the appellant herein) assaulted him with a chopper and the other accused surrounded him and assaulted with the clubs. This is the base and the foundation that has been laid by the prosecution so far as the assault on him by the accused. 8. PW7-Mahesh is also an injured, but he does not support the case. PW.1-Dr. Rajappa examined PW7-Mahesh on 4.1.2000 before whom the history of assault was given and it is recorded by PW1 that the injuries are due to assault by accused No. 1 (Natraj) and his relatives. PW7 had sustained two injuries. Ex.P1 is the injury certificate. But anyhow PW7-Mahesh having not supported the case of the prosecution states that at 11.00 a.m. when he was proceeding near his house, there was a scuffle at a nearby place and at that time a stone pelted and hit him and he fell unconscious. He did not see PW6-Basappa the injured and also does not know who assaulted him. But to the extent that there was a scuffle nearby the place and that he sustained an injury due to a hit by stone pelting could be accepted to the extent for corroborating the evidence of PW6-Basappa. Further more, though PW7 does not refer to the treatment at the hands of PW1, there is no reason for the doctor PW1 to speak about the injuries and his treatment on the date of the incident and also the history given by the injured as an assault by Natraj accused No. 1 (the appellant herein) and his relatives. 9. Further more, though PW7 does not refer to the treatment at the hands of PW1, there is no reason for the doctor PW1 to speak about the injuries and his treatment on the date of the incident and also the history given by the injured as an assault by Natraj accused No. 1 (the appellant herein) and his relatives. 9. So far as the presence of PW8-Rajappa he states that there was a quarrel for laying down a public tap between his father and the accused and at 11.00 a.m. he went outside to answer the call of nature and when he came near, he saw his father having sustained injuries and in the chief-examination he stats that he did not see the assailant. He speaks to the presence of all the accused in the place of the incident. He was treated hostile by the prosecution and in the cross-examination he speaks to the assault on his father by accused No. 1. But anyhow, in the cross-examination he states, by the time he returned to the place of incident, the scuffle was over and the police had come. The scrutiny of his evidence would reveal that he was not a witness to the incident of assault by accused No. 1 on his father PW6-Basappa. PW9-Omkaramma is the wife of the injured PW6-Basappa. She was cleaning utensils in the house and after hearing the noise she came out and saw the accused No. 1 assaulting her husband with a weapon called a Kandli. She also states that the other accused surrounded him and dealt blows with the clubs. So far as the presence of PW8-Rajappa and PW9-Omkaramma, the complaint is silent. But so far as PW8-Rajappa is concerned, as he had gone to along distance to answer the call of nature, his evidence is clear that he did not witness the assault by accused No. 1 on his father. When he himself states that he was at a long distance, the possibility of witnessing the incident appears to be not acceptable. But the scrutiny of the material placed on record reveals that the house of the injured was just two houses away from the place of incident and the presence of PW9 the wife of the injured cannot be said to be unnatural. But the scrutiny of the material placed on record reveals that the house of the injured was just two houses away from the place of incident and the presence of PW9 the wife of the injured cannot be said to be unnatural. When a quarrel ensues near the house, the inmates of the nearby houses would proceed to know the incident and in this context if the scrutiny of her evidence is looked into, to some extent it corroborates the evidence of the injured. There is discrepancy in the evidence of PW9 to the extent of the accused No. 1 assaulting her husband with Kandli, whereas the rest of the witnesses state the use of a chopper by accused No. 1 to assault the injured. Both the Kandli and a chopper are sharp edged weapons. Kandli is said to be a weapon with a curve and approximately there is no much difference between both the weapons. Hence, the reference of the weapon as Kandli by PW9 appears to be not a material discrepancy. 10. PW11-Girijamma is the daughter of injured PW6 Basappa and she was present in the house. She had delivered a child few days earlier to the incident and she states that she was in front of the house and she saw accused No. 1 assaulting her father with the chopper on the left cheek. Though her presence at the time of the incident is not referred to in the complaint Ex.P7, as she was in the village at the time of the incident, her presence at the place of incident is natural. 11. PW12-Manja is also a close relative of the injured and he speaks about his presence at the time of the incident and assault by accused No. 1 with the chopper on his nephew PW6-Basappa. But there is a material discrepancy in his evidence and in the cross-examination he stats that all the accused were holding clubs. He does not speak about the chopper having been with the first accused. Except that he is a relative of the injured PW6-Bsappa, there appears to be no other discrepancies in his evidence. 12. But there is a material discrepancy in his evidence and in the cross-examination he stats that all the accused were holding clubs. He does not speak about the chopper having been with the first accused. Except that he is a relative of the injured PW6-Bsappa, there appears to be no other discrepancies in his evidence. 12. The scrutiny of the material placed on record would reveal that only the injured and the close relatives have been examined by the prosecution and though the incident took place in a public street and though there were many other persons who were present nearby the place of incident, the prosecution has not taken any steps to examine independent eyewitnesses. Anyhow, the perusal of the evidence of the Investigating Officer reveals that he has recorded the statements of many other witnesses, but at the time of the trial the others were not examined. In this context it is necessary to look into the material placed on record and to know as to whether the evidence of the witnesses could be accepted though there is no independent corroboration.13. PW10 is the doctor who examined PW6-Basappa the injured and the scrutiny of her evidence reveals that she examined the injured at 2.30 p.m. on the date of the incident and had issued the injury certificate Ex.P10 which shows that PW6-Basappa has sustained the following injuries: (i) Abrasion of 2? below left ear. (ii) Abrasion of left ear from middle to lobules. (iii) Lacerated wound on the left mandible area (angle of jaw lacerated wound exposing angle of mandible. (iv) There was a fracture of mandible as well. 14. The doctor has certified that the injury Nos. 1 and 2 are simple and injury No. 3 is grievous. Though PW10 the doctor states that there was a fracture of mandible, X-ray is not produced. No reasons are assigned for non-production. Therefore, as contended by the counsel for the appellant, the evidence of PW10 and the injury certificate Ex.P10 cannot be sufficient to hold that PW6 had suffered a grievous injury. There is no reason to discard the evidence of the doctor so far as sustaining simple injuries by PW6. 15. Generally an injured does not implicate an innocent and does not leave a person who really caused the harm. The evidence of an injured stands on a higher footing. Such evidence cannot be lightly rejected. There is no reason to discard the evidence of the doctor so far as sustaining simple injuries by PW6. 15. Generally an injured does not implicate an innocent and does not leave a person who really caused the harm. The evidence of an injured stands on a higher footing. Such evidence cannot be lightly rejected. That apart when the Court considers the evidence of an injured witness, if his evidence is supported by medical evidence, there is no difficulty or any bar to base conviction though the injured is an interested witness. 16. Scrutiny of the material place on record reveals that except for the purpose of laying the public tap there was no other enmity. It cannot be said that solely for such reasons an injured goes to the extent of creating a false case getting injured himself and lodging a complaint. As the injury suffered by PW6 could be caused by weapon like a chopper, the evidence of the doctor and the contents of Ex.P10 sufficiently corroborate the version of the injured PW6-Basappa. This evidence appears to be trustworthy and acceptable and appropriate to prove the incident of assault. 17. There is delay in lodging the FIR and as could be seen from the material placed on record, PW5 went to Birur hospital and while PW6-Basappa was under treatment, he recorded his complaint Ex.P7 in between 2.30 to 2.45 p.m. and brought it back to the police station and it was registered at 3.45 p.m. Anyhow, the FIR has reached the Magistrate on the next day at 10.30 a.m. Though it appears that there is delay in lodging the first information, but it is well established principle of law that, mere delay itself is not a ground to reject the version of the prosecution, unless the delay has been taken to disadvantage by the prosecution to concoct a false case to implicate an accused. So far as registration of the complaint Ex.P7 on the date of the incident itself at 3.45 p.m., there is no delay. The delay is only for dispatching and receipt of the FIR by the Magistrate. In this context it is relevant to know that PW1 the doctor who treated PW7 states the name of the first accused and his relatives having assaulted the injured and this history was given by the injured and it was recorded by PW1. The delay is only for dispatching and receipt of the FIR by the Magistrate. In this context it is relevant to know that PW1 the doctor who treated PW7 states the name of the first accused and his relatives having assaulted the injured and this history was given by the injured and it was recorded by PW1. PW1 was working as a Medical Officer in the Primary Health Centre at Mukambudi a place which is nearer to the village where the incident took place. At the earliest, the name of accused No. 1 and others was recorded by PW1 and this fact substantiate the case of the prosecution and would make it clear that there was no concoction of false case at the instance of the complainant, as the name of the first accused was in the records of the government hospital much earlier to the registration of the crime, the subsequent delay in the receipt of the FIR by the Magistrate has no consequence over the case of the prosecution. 18. The prosecution has examined PW2 who is an attesting witness to the spot mahazar Ex.P2 under which MOs.1 to 5 were seized. He has supported the case of the prosecution. Though it is suggesting that he is a relative of PW6, he has denied it. There is no reason to discard his evidence and that of the Investigating Officer so far as the seizure of MOs.1 to 5 under mahazar Ex.P2. That apart the prosecution also examined PW6-Basappa who had produced the clothes of the injured MOs.6 and 7 and they were seized by the Investigating Officer in the presence of PW13 and others. All the seized articles were sent to the opinion of forensic experts and Exs.P3 and 4 are the FSL reports, whereas, Ex.P5 is the serology report. Perusal of these reports would reveal the presence of human blood 'O' group. So, the blood stains on the clothes and the blood stains over the weapon were of the same group. This lends further strength to the case of the prosecution. Though it is contended that the sample blood of the injured is not taken, I do not think that there was any necessity to get the sample of blood for examination as the blood stains on the clothes were sufficient to determine the blood group of the injured. 19. This lends further strength to the case of the prosecution. Though it is contended that the sample blood of the injured is not taken, I do not think that there was any necessity to get the sample of blood for examination as the blood stains on the clothes were sufficient to determine the blood group of the injured. 19. Though a claim is made that PW1 has not spoken to treatment of PW6 in his hospital, it may be a mistake on the part of the prosecution, as no serious consequence so as to discard the version of the prosecution as a whole. It is no doubt true that there are discrepancies which are stated above in the case of the prosecution, but the fact that the incident took place on 4.1.2000 and the evidence of the witnesses was recorded after five and half years cannot be forgotten. When there is a long gap between the dates, the discrepancies are natural. The trial Court having considered the material discrepancies, has made its exercise in discarding the evidence by granting acquittal to the other accused. 20. So far as the assault by the appellant is concerned, there is consistent version and that there are some improvements as contended by the learned counsel. They would not affect the case of the prosecution and except that there is no evidence about the grievous injuries. PW6-having sustained simple injuries at the hands of the appellant by an assault with the chopper has been proved beyond reasonable doubt. Hence, his conviction for the offence under Section 326 IPC and the sentence thereon has to be set aside. He is guilty for the offence under Section 324 IPC. 21. So far as the sentence is concerned, as the incident took place on day time, considering the manner of assault, a reasonable sentence has to be awarded. 22. In the result, the appeal is allowed in part. The conviction of the appellant for the offence under Section 326 IPC and the sentence thereon are set aside. The appellant is acquitted of the said charge. He is convicted for the offence under Section 324 IPC. He is ordered to undergo rigorous imprisonment for six months and to pay fine of Rs. 2,000/-, in default to undergo simple imprisonment for 15 days. The appellant is acquitted of the said charge. He is convicted for the offence under Section 324 IPC. He is ordered to undergo rigorous imprisonment for six months and to pay fine of Rs. 2,000/-, in default to undergo simple imprisonment for 15 days. He is entitled to set off under Section 428 Cr.P.C. The trial Court is directed to secure the presence of the appellant to undergo the sentence.