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2015 DIGILAW 1091 (KAR)

Narayanaswamy v. Narsimhappa

2015-09-11

MOHAN M.SHANTANAGOUDAR, R.B.BUDHIAL

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JUDGMENT : Mohan M. Shantana Goudar, J. 1. The judgment and order dated 31.01.2011 passed by the Ad hoc Sessions Judge, Fast Track Court-II, Chintamani in S.C. No. 83/2010 is called in question in this appeal by the victim/injured. By the impugned judgment, the Trial Court has acquitted the accused of the offences punishable under Sections 323, 504, 307 read with Section 34 of IPC. 2. Case of the prosecution in brief is that the wall adjoining the house of the victim (P.W.2) had fallen; the house of the victim and the house of the accused are adjoining each other; there used to be frequent quarrel between the women folks in the matter of falling of the wall and cleaning the area; Manjunath (accused No. 3) is the son of Narasimhappa (accused No. 1), Narasappa (accused No. 2) is the relative of other accused; there was dispute between both the families with regard to agricultural land also. On the date of incident i.e., on 23.10.2009 at about 8.00 a.m., Narayanaswami (P.W.2/victim) went to the house of Muniyappa and enquired about the galata between the women folk; at that point of time, accused No. 1 quarreled with P.W.2; other two accused also started quarrelling with P.W.2; accused No. 1 stabbed on the stomach of P.W.2 with small knife being used for tying the cock at the time of recreation (cock fight or hen fight) and caused bleeding injury to him; other two accused namely Narasappa and Manjunath also came to the spot and assaulted injured (P.W.2). Meanwhile, the complainant (P.W.1/brother of the victim), his relative Muniswami S/o T. Muniswami; Munendrappa S/o Chinnappa took the injured P.W.2 to the Government Hospital at Chintamani and thereafter to SNR Hospital, Kolar; subsequently, the victim was shifted to Bowring Hospital, Bengaluru for higher treatment. Complaint came to be lodged by P.W.1, the brother of the injured, as per Ex. P-1 at about 10.45 on 23.10.2009 before Chintamani Rural Police Station, Kolar District, which came to be registered in Crime No. 311/2009 for the offences punishable under Sections 323, 307, 504 read with Section 34 of IPC against three accused. The Police, after investigation laid the charge sheet. The wound certificate issued by Bowring Hospital, Bengaluru is produced at Ex. P-4 before the Court below, which discloses that the victim was examined at 1.45 p.m. on 23.10.2009 with the following injuries : "1. The Police, after investigation laid the charge sheet. The wound certificate issued by Bowring Hospital, Bengaluru is produced at Ex. P-4 before the Court below, which discloses that the victim was examined at 1.45 p.m. on 23.10.2009 with the following injuries : "1. Cut lacerated wound over the left para umbilicial region measuring 6cms with omentum exposed. The opinion was furnished by the doctor attached to Bowring Hospital, subsequently as under: The above mention wound i.e., 6cm wound in left paraumbilical region was oblique in nature entered peritoneum causing perforated injury in proximal jejunum and tear in the serosal layer of transverse colon. Above mentioned injury No. 1 is grievous in nature." 3. In order to prove its case prosecution in all, examined 10 witnesses and got marked 4 documents and 1 material object and on the part of defence two documents got marked, Trial Court on evaluation of the materials on record, acquitted the accused on the ground that variations are found in the evidence of eye-witnesses; doctor, who treated has not been examined before the Court; the weapon is not sent for Forensic Science Laboratory for examination, etc., 4. State had not filed any appeal questioning the judgment and order of acquittal; however, the injured victim (P.W.2) has filed this appeal questioning the order of acquittal. Though the accused were represented by the advocate, the said advocate has not appeared before the Court, hence, we proceeded to appoint Sri M. Prashanth, learned counsel, as Amicus Curiae to assist the Court as well as to appear on behalf of the accused. We have heard the learned counsel for the victim; learned amicus curiae; learned Government advocate for the State and perused the records. We have heard the learned counsel for the victim; learned amicus curiae; learned Government advocate for the State and perused the records. Sri Pulakeshi, learned counsel appearing on behalf of the appellant taking us through the materials on record submits that the Court below is not justified in acquitting the accused; absolutely no valid reasons are assigned for coming to the said conclusion; merely because the doctor has not examined and merely because the materials are not sent for Forensic Science Laboratory for examination, the justice should not be made to suffer, particularly, in the light of consistent evidence of eye-witnesses including the injured eye-witness; there cannot be any dispute that the incident of assault on the injured has taken place; there is no exaggeration on the part of the complainant or on the part of P.W.2 inasmuch as of the eye-witnesses including the injured eye-witness have consistently deposed that it was accused No. 1, who stabbed on the stomach of the victim; if really the intention of the complainant was to implicate all the accused more seriously, he would not have left without assigning specific role against other two accused. The evidence of eyewitnesses tallies with the wound certificate Ex. P-4; the injured has taken treatment for about 15 days in the hospital and has under-went operations; the intestine had protruded because of the injury sustained by P.W.2. On these among other grounds it is contended on behalf of the victim that the accused needs to be punished for the offence punishable under Section 307 of IPC. Per contra, it is contended by the learned amicus curiae that there is nothing on record to show that the victim had suffered grievous injury; the evidence on record is not sufficient to conclude that the injury sustained by P.W.2 is grievous injury inasmuch as the same does not fall within any of the items found in Section 320 of IPC. Even the injured eye-witnesses has not deposed that as the hurt sustained by him endangers his life and that he has suffered during the span of 20 days any severe body pain and unable to follow his ordinary pursuits. In the absence of these evidence to show that the victim had sustained grievous injury, at the most the accused can be convicted for the offence punishable under Section 324 of IPC. In the absence of these evidence to show that the victim had sustained grievous injury, at the most the accused can be convicted for the offence punishable under Section 324 of IPC. According to him there is no intention on the part of accused No. 1 to commit murder; there was no attempt also to commit the murder of the victim; the incident has taken in a spur of moment because of the quarrel between the women folks; absolutely no intention on the part of the accused can be found for commission of the offence; since the incident has taken place in bit of anger; it can be safely concluded that the accused neither had the intention to commit the murder nor had attempted to commit murder. Thus, according to him the Trial Court is justified in acquitting the accused for the offence punishable under Section 307 of IPC. Learned Government Advocate argued in support of the judgment and order of acquittal passed by the Court below. 5. P.W.1 is the complainant; he has lodged the complaint as per Ex. P-1, he is the brother of the victim, he is the eye-witness to the incident in question. P.W.2 is the injured eye-witness. P.W.3 is the wife of P.W.2, she is also the eye-witness to the incident. P.Ws.4, 5 and 6 are also the eye-witnesses for the incident in question. P.Ws.7 and 8 are the witnesses for the scene of offence panchanama Ex. P-2, both of them have deposed about the seizure of M.O.1 weapon, which is used for commission of offence. P.W.9-ASI, Chintamani Rural Police Station, he registered has the crime based on Ex. P-1, he conducted part of the investigation and handed over the investigation to P.W.10. P.W.10, the Sub-Inspector of Police, who has completed the investigation and laid the charge sheet. 6. Case of the prosecution thus mainly depends upon the evidence of eye-witnesses including the injured eye-witness and the medical evidence on record. 7. Unfortunately, the doctor, who treated the victim is not examined; however, the certificate issued by Bowring Hospital, Bengaluru as per Ex. P-4 is produced and marked before the Court below. Thus the Court does not have the benefit of version of the doctor, who treated the victim to find out as to how much actually the victim has suffered. Ex. Unfortunately, the doctor, who treated the victim is not examined; however, the certificate issued by Bowring Hospital, Bengaluru as per Ex. P-4 is produced and marked before the Court below. Thus the Court does not have the benefit of version of the doctor, who treated the victim to find out as to how much actually the victim has suffered. Ex. P-4 the wound certificate, however, makes it amply clear that the injury sustained by the victim is having the length of 6cm. and it is on the left portion of the stomach; injury certificate Ex. P-4 reveals that the victim suffered perforated injury in proximal jujunum and tear in the serosal layer of transverse colon. Hence, it is clear that the injury sustained by the victim is of some seriousness. Unfortunately, though injured/victim is examined as P.W.2, he has not deposed disclosing anything that the hurt sustained by him has endangered his life or that the hurt has compelled the sufferer to suffer any bodily pain or that injured is unable to follow his ordinary pursuits for twenty days. The evidence on record is not sufficient to conclude that the victim has sustained the hurt which falls within one of the eight (8) kinds of hurts mentioned in Section 320 of IPC. If the hurt is not designated as grievous hurt as contemplated under Section 320 of IPC in law, it is treated as simple hurt. 8. In the matter on hand, in the absence of the evidence of the Doctor and in the absence of any explanation by P.W.2/injured, it cannot be presumed that the victim had sustained grievous hurt. The prosecution has not proved its case beyond reasonable doubt to show that the victim had sustained grievous hurt. In the absence of adequate material to categorise the hurt sustained by the victim as grievous hurt, it needs to be concluded that the victim had sustained hurt and not the grievous hurt. 9. The evidence of P.Ws.1 to 6 who are the eyewitnesses to the incident, amply discloses that it was accused No. 1, who stabbed on the stomach of the victim with a knife and other two accused also assaulted the victim with hands etc., The evidence of these witnesses in respect of the aforementioned factors is consistent, cogent and reliable. There is no scope for exaggeration of the case by the prosecution. There is no scope for exaggeration of the case by the prosecution. The incident has taken place at about 8.00 a.m. on 23.10.2009 and the complaint as per Ex. P1 came to be lodged by the brother of the victim immediately in the very morning, which came to be registered at 10.45 a.m., which means, the crime is registered within about 2 hours 45 minutes after the incident in question. There was no scope for improvement or embellishment, in as much as, the victim was shifted to the hospital and every family members of the victim might have worried about the health condition of the victim. Even in the complaint, Ex. P1, it is specified that it was accused No. 1 only, who stabbed on the left side of the stomach of the victim. In view of the above, we are of the clear opinion that the order passed by the trial Court acquitting accused Nos. 2 and 3 appears to be just and proper. Except making omnibus allegations against accused Nos. 2 and 3, no other reliable material is found against them. The victim has sustained only one injury and the same is sustained on the stomach; it was accused No. 1 who stabbed on the stomach of the victim with a sharp cutting weapon. Hence, we are of the clear opinion that the trial Court is justified in acquitting accused Nos. 2 and 3. 10. However, ample material is found against accused No. 1 to prove that accused No. 1 has assaulted P.W.2 with a sharp cutting weapon on his stomach. Practically, the wound certificate and the injury mentioned therein support the ocular testimony of P.Ws.1 to 6 including the injured eyewitnesses. It was accused No. 1 who assaulted on the stomach with the sharp cutting weapon, consequent upon which, the injury as mentioned in Ex. P4 must have been sustained by the victim. Except the said injury no other injuries are found. Though, it is the case of the prosecution that accused Nos. 2 and 3 also assaulted the victim with hands or clubs etc., there is no corresponding injury found in the wound certificate to support the said contention. 11. We have already mentioned supra that it is accused No. 1 who committed the crime by assaulting on the abdomen of the victim with a sharp cutting weapon. 2 and 3 also assaulted the victim with hands or clubs etc., there is no corresponding injury found in the wound certificate to support the said contention. 11. We have already mentioned supra that it is accused No. 1 who committed the crime by assaulting on the abdomen of the victim with a sharp cutting weapon. We have also concluded, that there is nothing on record to show that the victim has sustained grievous injury. Since the injury sustained by the victim does not fall within any of the 8 categories found in Section 320 of IPC and as no other injury is sustained by the victim, which can be attributed to the overt acts of other accused, it needs to be concluded that it was accused No. 1 who has to be convicted for the offence under Section 324 of IPC. Other accused are rightly acquitted by the trial Court. 12. Having heard the learned advocates on record, more particularly, the advocate for the victim and looking to the totality of the facts and circumstances; so also keeping in mind that the incident has taken place because of the trivial quarrel between the women folk of two families, leniency may be shown in favour of accused No. 1 by not imposing sentence of imprisonment. However, we hasten to add here itself that hefty fine has to be imposed on accused No. 1, so as to compensate the victim adequately. According the following order is made: "(i) The judgment and order of acquittal passed by the trial Court in S.C. No. 83/2010 dated 31.1.2011, in so far as it relates to accused No. 1 is concerned, stands set aside. (ii) Accused No. 1 is hereby convicted for the offence punishable under Section 324 of IPC. (iii) The judgment and order of acquittal, acquitting accused Nos. 2 and 3, passed by the trial Court in S.C. No. 83/2010 dated 31.1.2011 stands confirmed. (iv) Accused No. 1 is sentenced to pay a fine of Rs. 75,000/-. In default of payment of fine amount within three months from the date of receipt of the copy of this order, accused No. 1 shall undergo imprisonment for a period of one year. (v) In case of recovery of the fine amount, an amount of Rs. 70,000/- shall be paid to the victim/P.W.2 namely, Narayanaswamy S/o Munivenkatappa and the remaining amount of Rs. (v) In case of recovery of the fine amount, an amount of Rs. 70,000/- shall be paid to the victim/P.W.2 namely, Narayanaswamy S/o Munivenkatappa and the remaining amount of Rs. 5,000/- shall vest to the State." Appeal is allowed in part accordingly. We place on record the valuable assistance rendered by Sri. M. Prashanth, learned Amicus Curiae. Hence, the registry is directed to pay Rs. 6,000/- to the learned Amicus Curiae.