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2015 DIGILAW 381 (KAR)

P. Ravindra v. State of Karnataka

2015-04-06

K.N.PHANEENDRA

body2015
JUDGMENT : K.N. Phaneendra, J. 1. The appellant who is the accused in S.C. No. 30 of 2011 has preferred this appeal challenging the judgment and sentence passed by the Principal Sessions Judge at Raichur, in S.C. No. 30 of 2011, dated 1-10-2012 convicting and sentencing the accused-appellant for the offences punishable under Sections 451, 307, 323 and 506 of Indian Penal Code, 1860. As could be seen from the order of sentence passed by the Trial Court, the accused was sentenced to undergo rigorous imprisonment for two years for the offence punishable under Section 451 of IPC and to undergo rigorous imprisonment for a period of 7 years and to pay fine of Rs. 40,000/- with default clause to undergo rigorous imprisonment for one year for the offence punishable under Section 307 of IPC and also to undergo rigorous imprisonment for three months for the offence punishable under Section 323 of IPC and to undergo two years rigorous imprisonment for the offence punishable under Section 504 of IPC. 2. The judgment of conviction and sentence has been challenged before this Court on various grounds. 3. The learned Counsel for the appellant has strenuously contended that there was no any motive or intention on the part of the accused to cause any such injury and he was not knowing that such an injury would be sufficient to cause death of a person. Actually, there was absolutely no motive or premeditation on the part of the accused-appellant in going to the house of the complainant as alleged and causing such injuries. It is also contended that due to some ill-will and hatred between the owner of SNT Film Theatre and the accused, the said owner of the theatre has made use of the complainant in order to lay a false case against the accused person. In fact, the prosecution has not produced sufficient oral or documentary evidence before the Trial Court in order to bring home the guilt of the accused. The Trial Court has also not properly appreciated the oral and documentary evidence on record and the Court has swayed away by mere alleged overt acts of the accused and came to the conclusion that the accused has committed the aforesaid offences. The Trial Court has also not properly appreciated the oral and documentary evidence on record and the Court has swayed away by mere alleged overt acts of the accused and came to the conclusion that the accused has committed the aforesaid offences. Looking from any angle appreciation of evidence of the complainant which is bereft of corroboration from the other sources, is not sufficient to convict the accused person for the above said offences. The learned Counsel also contended that the sentence passed by the Trial Court is also not commensurate with the offences alleged to have been committed by the accused and it is too harsh to impose imprisonment of 7 years under the given set of facts and circumstances. Therefore, looking from any angle, the judgment of conviction itself is bad in law and the sentence is also exorbitant. The learned Counsel pleaded for setting aside the judgment of the Trial Court and to acquit the accused of the aforesaid offences. In the alternative, the learned Counsel contends that, if for any reason, the Court comes to the conclusion that the judgment of conviction has to be sustained or accused is liable to be convicted for other lesser offences, the sentence passed by the Trial Court may be reduced to the period already undergone by the appellant. 4. Per contra, the learned High Court Government Pleader has strenuously contended that in this particular case, the evidence of the injured eye-witnesses are sufficient to draw an inference that the accused has committed the aforesaid offences entering into the house of the complainant with a knife by the accused itself shows that he had an intention to commit the murder of the complainant and to cause injury to the complainant and his wife. Further, added to that, the nature of the injury sustained by the complainant on the stomach clearly indicate that it is grievous in nature and the accused has also caused an injury on the head of the complainant. The injuries sustained by the complainant itself goes to show that the accused had pre-intention to cause certain injury, which would cause the death of a person. The injuries sustained by the complainant itself goes to show that the accused had pre-intention to cause certain injury, which would cause the death of a person. The recovery of knife and bloodstained cloth from the custody of the accused and the doctor's evidence corroborates the evidence of the complainant and this is sufficient to draw an inference that the accused has committed the aforesaid offences for which he was convicted. The sentence passed by the Trial Court also commensurate with the offences committed by the accused. Therefore, looking from any angle, there is no room for interference with the judgment of conviction passed by the Trial Court. 5. Having heard the arguments of the learned Counsel appearing on both sides, this Court has to ascertain whether the Trial Court has committed any serious error in convicting the accused for the above said offences and also committed any serious error in sentencing the accused, as noted above. 6. Before adverting to the grounds urged before this Court, it is just and necessary to have a brief factual matrix of the prosecution case. 7. The facts of the case as exposed in the charge-sheet and before the Court are that, the accused-Ravindra and the injured P.W. 1-Gokul Chawla (complainant) were known to each other much earlier to the incident. It is the case of the prosecution that the accused person was working under the owner of SNT Talkies in Raichur. The complainant was having some relationship with the owner of the theater and he used to supply the films to the owner of the theatre. Therefore, the complainant used to visit the theatre oftenly and the accused, who was also working in the said theatre and well-known to the complainant, was often demanding the complainant to provide some hand loan and in that connection, earlier, there was some quarrel between the complainant and the accused. In this background, it is alleged by the prosecution that on 11-1-2010 at about 2.10 p.m. the accused went to the house of the complainant situated at Satyanath Colony, Raichur, wherein the complainant-Gokul Chawla (P.W. 1) and his wife Vandana (P.W. 2) were residing. The accused entered the house which was open and demanded for money, but the complainant refused to fulfill the said request. The accused entered the house which was open and demanded for money, but the complainant refused to fulfill the said request. Suddenly, it is alleged that accused took out a knife and assaulted on the head and stabbed on the stomach of the complainant. Due to the said assault, the complainant sustained some injuries, when his wife (P.W. 2) rushed to rescue the complainant, she was also threatened with dire consequences of killing her and the accused also caused some simple hurt to her with the same knife. Due to stab injury to the stomach of P.W. 1, intestine was protruded from the stomach and he was admitted to the hospital for treatment. The doctor who treated P.W. 1 has also opined that P.W. 1 has sustained grievous injuries. On these allegations, after completion of investigation, the Investigating Officer has filed the charge-sheet. 8. The accused pleaded not guilty and he claimed to be tried. The Trial Court framed the charges against the accused for the above said offences. The prosecution in order to prove the guilt of the accused, examined as many as 12 witnesses namely, P.Ws. 1 to 12 and got marked Exs. P. 1 to P. 12 and M.Os. 1 to 7. 9. P.W. 1-Gokul Chawla and P.W. 2-Vandana are injured eye-witnesses. P.W. 3-Mareppa and P.W. 9-Mahiboob Ali are the panch witnesses for recovery of knife and muffler at the instance of the accused. P.W. 4-Dr. K. Ramappa is the Doctor, who referred the injured persons to higher hospital. P.W. 5-Narasimhamurthy, who is the neighbour of the complainant has turned hostile to the case of the prosecution. P.W. 6-Prakash is the panch witness to spot mahazar-Exs. P. 2 and P. 7 for the recovery of bloodstained cloths of the complainant. P.W. 7-Sundarabai, who is another neighbour of the complainant has also turned hostile to the case of the prosecution. P.W. 8-Sandeep is the owner of the SNT Theatre, under whom the accused was working. P.W. 10-Vijayakumar is the Police Constable who carried the articles to the FSL. P.W. 11-Dr. Fakeerappa is the doctor who examined P.Ws. 1 and 2 and issued certificates as per Exs. P. 11 and P. 12. P.W. 12-L. Vijayakumar is the Investigating Officer, who submitted the charge-sheet. 10. The main crux of the case of the prosecution revolves around the evidence of P.Ws. 1 and 2. P.Ws. P.W. 11-Dr. Fakeerappa is the doctor who examined P.Ws. 1 and 2 and issued certificates as per Exs. P. 11 and P. 12. P.W. 12-L. Vijayakumar is the Investigating Officer, who submitted the charge-sheet. 10. The main crux of the case of the prosecution revolves around the evidence of P.Ws. 1 and 2. P.Ws. 1 and 2 have categorically stated in their evidence that on 10-1-2010 at about 2.00 p.m., when they were inside their house and the main door of their house was open, the accused entered into their house by covering his face with a muffler and demanded for money. Since P.W. 1 told him that he has no money with him, the accused assaulted P.W. 1 on his head and when P.W. 1 removed the covered muffler from the face of the accused, the accused stabbed P.W. 1 with a knife brought by him and caused grievous injury. At that time, P.W. 2 came to the rescue of P.W. 1, then the accused also threatened her with dire consequences of killing her and also caused simple hurt to her with the same knife. Later, it appears P.W. 1 was shifted to OPEC Hospital and there his statement was recorded as per Ex. P. 1 and on the basis of the same, the police have registered a case against the accused. P.W. 2 also reiterated the same factual aspects in her examination-in-chief, which fully corroborates the evidence of P.W. 1. P.W. 1 has also identified the knife marked at M.O. 1, which was used in the commission of the above offence, and also bloodstained clothe (lungi) marked at M.O. 2, and also identified M.O. 3 (bed sheet), M.O. 4-nighty of P.W. 2. In the course of cross-examination, it is elicited that prior to the incident there was no money transaction with the accused as well as P.W. 1. It is suggested that, when the accused came inside the house, P.W. 1 was not knowing as to who came inside the house. It is also suggested that, the accused was not assaulted him and has not caused any injury to him. Except this, nothing more has been elicited during the cross-examination in order to disbelieve the evidence of P.Ws. 1 and 2. On the other hand, the nature of cross-examination shows that the accused has actually entered into the house. It is also suggested that, the accused was not assaulted him and has not caused any injury to him. Except this, nothing more has been elicited during the cross-examination in order to disbelieve the evidence of P.Ws. 1 and 2. On the other hand, the nature of cross-examination shows that the accused has actually entered into the house. But it is suggested that he has not caused any injury to P.W. 1 or P.W. 2. Looking to the evidence of P.Ws. 1 and 2, nothing is forthcoming in order to totally discard the evidence of P.Ws. 1 and 2 or to disbelieve their version. But so far as examination-in-chief and cross-examination of these two witnesses are concerned, there is an indication of motive of committing some offence, because both of them have stated that the accused was often demanding for loan from P.W. 1 and P.W. 1 was refusing to give any loan to him. In this regard, perhaps, on that particular day, the accused might have entered the house of P.W. 1 in order to seek loan from him and when P.W. 1 refused to fulfill his demand, at the particular point of time, being enraged the accused might have committed the offence of stabbing him with a knife. The evidence of P.W. 1 is also fully supported by the evidence of the Doctors, who were examined before the Court as P.W. 4 and P.W. 11. P.W. 4 has stated that on 11-1-2011 at about 2.30 p.m. he examined P.W. 1 and on noticing injury to his umbilicus, he referred the witness to OPEC Hospital. P.W. 11, who actually treated P.W. 1 has deposed before the Court that, on 11-1-2010, at about 3.30 p.m., when he examined the injured, he found two important injuries, viz.: (i) Stab injury below the umbilicus, vertically measuring about 4 c.m. in length x 1 c.m. width and through which omentum and intestinal coils are peeping; (ii) Sharp wound over the left forehead 4 to 5 c.ms. x 1/2 c.m. muscle deep present. Another over temporal parietal area present 5 c.m. x 1/2 c.m. into deep. X-ray of the chest indicates old fracture of middle third of left clavicle. 11. x 1/2 c.m. muscle deep present. Another over temporal parietal area present 5 c.m. x 1/2 c.m. into deep. X-ray of the chest indicates old fracture of middle third of left clavicle. 11. The doctor has also examined P.W. 2 on the same day at about 7.00 p.m. and found the following injuries: (i) Tenderness over left hand present; (ii) Linear sharp abrasion over right palm 1 c.m. in length; (iii) Linear abrasion anterior aspect of thigh. 12. The doctor has given a certificate-Ex. P. 11, wherein he has categorically stated that the stab wound to the umbilicus i.e., injury 1 sustained by P.W. 1 was grievous in nature and the 2nd injury was simple in nature and all the three injuries sustained by P.W. 2 were simple in nature. 13. The evidence of P.Ws. 1 and 2 is also corroborated by the evidence of the Doctor (P.W. 11). Of course, the learned Counsel has strenuously commented on the evidence of the Doctor. The prosecution has failed to elicit that the injuries suffered by P.W. 1 was sufficient in the ordinary course to cause the death of a person in order to attract Section307 of IPC. Nevertheless, in the cross-examination, the contents of Ex. P. 11 are not denied, that means, it is stated that, P.W. 1 has suffered one grievous injury and one simple injury and P.W. 2 has suffered three simple injuries. In the course of cross-examination it is suggested that the Blade of M.O. 1 was measuring 10 c.ms. and if a man is stabbed with M.O. 1, injury 1 could not be caused. But the said suggestion was denied and it was also explained by the Doctor that if an assault is made by M.O. 1 on the abdomen, larger wound can be caused. Therefore, it indicates that the blow was not so strong enough in order to cause a severe injury on the injured person. In this context, the Doctor has not stated the depth of the injury and whether with what force the accused has stabbed the injured and where actually omentum is situated in the body and how much depth it required to be penetrated in order drive out omentum and cause such injury. Such important informations have not been elicited in the course of examination-in-chief or in the cross-examination of the witnesses. Such important informations have not been elicited in the course of examination-in-chief or in the cross-examination of the witnesses. Therefore, looking to the above said circumstances, the other evidence in my opinion, is not so significant. The prosecution also proved recovery of knife and also conducting spot mahazar, etc. 14. Looking to the above said circumstances, I am of the considered opinion that the Trial Court has not committed any serious error in convicting the accused for the aforesaid offences. However, the nature of injuries sustained by P.Ws. 1 and 2 and also the circumstances clearly show that the accused might not have intended to do away with the life of P.W. 1. However, the conduct of the accused clearly indicates that he went to the house of P.Ws. 1 and 2 with a knife. This shows that he had a plan and intention to threaten or cause some injury to P.W. 1 if he denies fulfilling his demand of hand loan, as such, it cannot be said that he was intended to do away with the life of P.W. 1. As rightly contended by the learned Counsel, the accused gave a stab wound to the stomach of P.W. 1 not with a sole intention to kill him. Though the Doctor has stated that it is grievous in nature, but he has not described in his evidence that as to how that injury is grievous in nature and he has not stated whether that injury was sufficient to cause to death of a person if immediately treatment is not provided. In the absence of such elucidation and in the absence of description regarding depth of the injury, in my opinion, it may not be proper to conclude that the offence falls under Section 307 of IPC. Nevertheless, the evidence of the Doctor has not been challenged in detail with regard to the nature of injuries sustained by P.W. 1. The type of weapon used for commission of the said offences such as, a sharp edged cutting weapon and by the said weapon the injuries are caused on the stomach of P.W. 1 and after examination of the injuries that Doctor has stated that the said injuries are grievous in nature, are all not challenged in the cross-examination of the witnesses, but it is suggested that if such a weapon was used, it would cause more severe injury on a person. That clearly goes to show that the injury sustained by P.W. 1, as stated by the Doctor that it is grievous in nature, is not much in dispute. Therefore, I am of the opinion that the Trial Court has committed error in coming to the conclusion that the accused has intended to kill P.W. 1 and with such intention, he stabbed on the stomach of P.W. 1. As I have stated, in the absence of description of depth of the injury and also only one blow was given without much sufficient force and he has not ventured upon to give some more blows and he has not selected the vital part of the body of P.W. 1 to cause injury, it cannot be said that the accused had any intention to do away with the life of the accused. All these circumstances show that the accused was only intended to cause some injury to P.W. 1, in order to accomplish his vengeance and it may be to create fear, but may not be to do away with the life of P.W. 1. 15. Now coming to the part of the evidence of P.Ws. 1 and 2, they never stated that even after the stab, P.W. 1 fell down or lost his consciousness, etc., which show that the accused was intended to cause some injuries to him. In case, if after receiving the blow from the accused, P.W. 1 had fell down and thinking that he died, the accused went away from the spot, the Court would have inferred that he had an intention to kill P.W. 1. But, such is not the circumstance here. Even after sustaining injuries, P.W. 1 was in a standing position and his wife went to rescue him. These circumstances would indicate that the accused had entered into the house of P.W. 1 and caused some offence. These circumstances are not sufficient to come to a definite conclusion that he has intended to do away with the life of P.W. 1. Of course, the nature of injuries and the type of weapon used and also the previous conduct between the accused and P.W. 1 go to show that the accused wanted to extract some money from P.W. 1 as loan and as P.W. 1 did not give money by way of loan, being enraged, he might have committed the said offences. Of course, the nature of injuries and the type of weapon used and also the previous conduct between the accused and P.W. 1 go to show that the accused wanted to extract some money from P.W. 1 as loan and as P.W. 1 did not give money by way of loan, being enraged, he might have committed the said offences. Under these circumstances, in my opinion, the said offences may not attract the ingredients of Section 307 of IPC, however, it falls under Section 326 of IPC. Even Section 326 of IPC is punishable with imprisonment for life or may extend to ten years with fine. 16. Coming to the part of sentence awarded by the Trial Court, the Trial Court has convicted the accused and awarded sentence of imprisonment for a period of two years for the offence punishable under Section 451 of IPC. In my opinion, it requires no modification and the same has to be confirmed. So far as the judgment of conviction and order of sentence in respect of Section 307 of IPC, in my opinion, the same shall be altered to Section 326 of IPC. The Trial Court has also convicted the accused for the offence punishable under Section 323 of IPC and sentenced him to undergo imprisonment for a period of three months, which requires no modification and in respect of the offence punishable under Section 506 of IPC, the accused was sentenced to undergo imprisonment for a period of two years, which also requires no modification. 17. Now, coming to the sentence passed under Section 307 of IPC, the Trial Court has awarded the sentence of imprisonment for a period of seven years and a fine of Rs. 40,000/- and in default of payment of fine, to undergo rigorous imprisonment for one year. Of course, the offence under Section 326 of IPC is not so serious compared to Section 307 of IPC. Section 326 of IPC refers to voluntarily causing grievous injuries by dangerous weapon. According to Section 326 of IPC, intention play no dominant role. Irrespective of that, Section 326 is applicable, if a person voluntarily causes grievous hurt to other person. The importance of this provision is the discretion, which is given to the Court that the Court may sentence the accused with imprisonment for life with or imprisonment, which may extend to 10 years and fine. Irrespective of that, Section 326 is applicable, if a person voluntarily causes grievous hurt to other person. The importance of this provision is the discretion, which is given to the Court that the Court may sentence the accused with imprisonment for life with or imprisonment, which may extend to 10 years and fine. Therefore, the maximum punishment prescribed under this provision is imprisonment for life or imprisonment for 10 years and also fine depending upon the gravity of the offence committed. The wordings used 'which may extend to 10 years' gives further discretion to the Court. Depending upon the facts and circumstances of the case, the Court can properly award the sentence. 18. In this particular case, the learned Counsel is right in contending that, the accused has no premeditation to make an attempt to commit murder of P.W. 1 and he has no knowledge that such an injury would cause the death of P.W. 1. As could be seen from the evidence of the Doctor, there is no elucidation of facts by him that the said injury was sufficient either to cause instantaneous death or death of a person in an ordinary course, if immediately he was not provided with treatment. In the absence of such evidence, the Court cannot come to the conclusion that the accused had knowledge that such an injury would cause death of a person in the ordinary course. Secondly, the accused is aged about 42 years and he has got family to be looked after and if he was sentenced to seven years, virtually his entire family will be thrown on to the street. Further added to that he has no bad antecedents and he is not an anti-social element and he is a poor fellow eking his livelihood by doing a paltry work in a theatre. This incident is a bad incident in his life, which made him to go behind the bars. 19. Looking to the said mitigating circumstances narrated by the learned Counsel, I am of the opinion that imposition of sentence of imprisonment for a period of seven years may be too harsh. However, sentence must commensurate wit the act or offence committed by the accused. 19. Looking to the said mitigating circumstances narrated by the learned Counsel, I am of the opinion that imposition of sentence of imprisonment for a period of seven years may be too harsh. However, sentence must commensurate wit the act or offence committed by the accused. Therefore, in the facts and circumstances of the case, the judgment of conviction and the order of sentence passed by the Trial Court for the offence punishable under Section 307 of IPC only deserves to be modified. In the alternate, the accused is liable to be punishable under Section 326 of IPC, as the offence attracts the ingredients of the said provision, and remaining part of the judgment of conviction and order of sentence deserves to be left undisturbed. In the result, I pass the following order: ORDER The appeal is allowed in part. The judgment of conviction and the order of sentence dated 1-10-2012 passed by the Principal Sessions Judge at Raichur, in S.C. No. 30 of 2011 for the offence punishable under Section 307 of IPC is modified. In the alternate, the accused is convicted for the offence punishable under Section326 of IPC and he is sentenced to undergo rigorous imprisonment for a period of 3 1/2 (three and half) years and to pay fine of Rs. 60,000/- instead of Rs. 40,000/-. In case, if there is any default in payment of fine of Rs. 60,000/-, the accused shall undergo further sentence of rigorous imprisonment for a period of 1 year 6 months (1 1/2 years). The judgment of conviction and order of sentence insofar as the offences punishable under Sections 451, 323 and 506 of IPC are concerned, does not call for interference and it is kept intact. However, the substantive sentence of imprisonment passed by the Trial Court and this Court shall run concurrently. However, the sentence of fine shall run independently. Appellant-accused is entitled for set-off under Section 428 of Criminal Procedure Code, 1973 for the period he already undergone.