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2013 DIGILAW 649 (KAR)

ASHOK RAMA KOKITKAR v. STATE OF KARNATAKA

2013-06-07

A.S.PACHHAPURE

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JUDGMENT A.S. PACHHAPURE, J.-The appellants have challenged their conviction and sentence for the offence punishable under Section 307 read with Section 34 of IPC, on a trial held by the learned Sessions Judge at Belgaum. 2. The fact reveals that there was a dispute between PW1-Bhaganna and his brother Hanamanta on one side and the 1st accused on the other in respect of the share in the house property. On 17.06.2005 at 7:30 p.m. when PW1-Bhaganna was in front of his house, Rama-accused No. 1 and his sons, the appellants came together and asked for the signature of the Hanamanta to avail the loan and thereby a quarrel arose between the parties and the appellants are said to have held PW2-Hanamanta, whereas the accused No. 1 is said to have assaulted him with a sickle. Thereafter, a complaint came to be filed by PW1-Bhaganna and on investigation, a charge sheet came to be laid against the appellants and accused No. 1 for the offence punishable under Section 307 read with Section 34 of IPC. 3. In the course of trial, the prosecution has examined PWs. 1 to 18 and the documents at Exs.P1 to P17 were marked. The statement of the accused were recorded under Section 313 of Cr.P.C. During the pendency of the trial, the accused No. 1 died. The trial Court after hearing the learned counsel for the parties and on appreciation of the material on record, convicted the appellants for the charges under Section 307 read with Section 34 of IPC and ordered them to undergo R.I. for seven years and to pay fine of Rs. 10,000/- each. Being aggrieved by the order of conviction and sentence, the present appeal has been filed. 4. I have heard Sri. J. Basavaraj, the learned counsel for the appellants and Sri. K.S. Patil, learned High Court Government Pleader. 5. It is submitted by the learned counsel for the appellants that there is change of weapon and though in the complaint, it is stated that the 1st accused has assaulted PW2-Hanmanta with the sickle. Further, it is his submission that the material placed on record is insufficient to award conviction. That apart, he submits that the allegations do not fall within the purview of Section 307 of IPC and conviction of the appellant for the said offence is improper and illegal. 6. Further, it is his submission that the material placed on record is insufficient to award conviction. That apart, he submits that the allegations do not fall within the purview of Section 307 of IPC and conviction of the appellant for the said offence is improper and illegal. 6. On the other hand, the learned High Court Government Pleader has supported the charge and the order of the trial Court. 7. A perusal of the material placed on record reveals that PWs.1 to 3 are the injured and PWs.4 to 7 and 9 are the other witnesses, who have turned hostile. PW8 is Dr. Arun, who examined the injured on17.06.2005 at 9:00 p.m. and found that there was incised wound over the umbilical region 3 cm × 2 cm × intersecting the abdominal cavity and there was perforation of the intes fine. The Doctor has certified that the injury is grievous as it is fatal to the life of the injured. He was brought to the Hospital with the history of assault on 07.06.200 at 8:30 p.m. So from this evidence of the Doctor and that of the injured-PW2, it could be gathered that PW2 is an injured witness. It is well-established principle that the injured generally does not implicate the innocent and does not leave a person, who has really caused the harm. The evidence of the injured stands at a higher footing. It is the consistent version of PW2, the injured that the 1st accused assaulted him with the sickle and the appellants held his hands. Though in the evidence, it is stated that the 1st accused had used the sickle in causing assault. It may be for the reason that, it was night and PW2 or other witnesses were not able to accurately identify the weapons and that may be the reason for giving such evidence before the Court. That apart in the course of the trial, the Sickle was recovered in the instance of the accused No. 1 and it was seized. The evidence of the Investigating Officer could be accepted for the purpose of this recovery at the instance of the 1st accused. 8. The said weapon was sent for the opinion of an expert. No human blood was found, though, the mere fact that the bloodstain was not found on the sickle, it is not the ground to reject the evidence of an injured. 8. The said weapon was sent for the opinion of an expert. No human blood was found, though, the mere fact that the bloodstain was not found on the sickle, it is not the ground to reject the evidence of an injured. That apart PWs. 1 and 3 though they are the close relatives of the injured-PW2, their evidence corroborates the version of PW2-injured. The evidence of the injured does not require any corroboration, in case if his evidence is acceptable. The mere fact that the independent witnesses have supported the case of the prosecution has no bearing over the evidence of an injured. Therefore, the fact that PWs.4 to 7 and 9 have turned hostile is itself insufficient to discard the evidence of PWs.1 to 3. 9. PW10 was examined to prove the spot mahazar-Ex.P10. No incriminating material was found at the place of the incident. PW12 is the attesting witness for the seizure of MO1 under Ex.P11. The prosecution has examined the Police Constable as PW13, who carried the FIR, whereas PW14 is the Official, who accompanied the injured to the hospital. PW14 is the Police Constable, who carried the seized articles to the FSL and PW16 is the Official of KPTCL, who has issued the certificate-Ex.P30, to prove that there was electric light at the time of incident. PW17 and PW18 are the Investigating Officers. 10. It is relevant to note that immediately after the incident a crime was registered and FIR was sent to the Magistrate. Therefore, from the material placed on record, I am of the opinion that the incident has been proved satisfactorily from the evidence and the prosecution. 11. So far as the offence under Section 307 of IPC is concerned, it is relevant to note that the appellants were the persons, who held the injured at the time when the accused No. 1 assaulted the injured on the abdomen with the sickle. It cannot be said that the appellants had also the same intention to cause the death of the injured. It may be that the accused No. 1 had the intention to cause the death, that itself is not sufficient to hold that the appellants also shared the common intention. Therefore, in my opinion, the appellants are responsible for the offence under Section 326 of IPC as the accused No. 1 used the dangerous weapon to cause the grievous injury. 12. Therefore, in my opinion, the appellants are responsible for the offence under Section 326 of IPC as the accused No. 1 used the dangerous weapon to cause the grievous injury. 12. The appellants were aged about 35 and 24 years respectively, they are married persons, they have children, the incident occurred in the year 2005 and eight years have elapsed since then. Taking into consideration, the nature of the offence, the role of the appellants in holding the hands at the time of causing the assault, I think, the sentence has to be reduced reasonably. 13. In that view of the matter, the appeal is allowed in part. The conviction of the appellants for the charge under Section 307 read with Section 34 of IPC is set aside. They are convicted for the offence under Section 326 of IPC. They are ordered to be undergo S.I. for one year and to pay fine of Rs. 5,000/- each, in default to undergo S.I. for three months. They are entitled to set-of under Section 428 of Cr.P.C. The trial Court is directed to secure the presence of the appellants to undergo the sentences. The excess fine if deposited, shall be refunded.