Research › Search › Judgment

Karnataka High Court · body

2015 DIGILAW 491 (KAR)

V. T. Murthy v. V. S. Shivappa Gowda

2015-04-28

MOHAN M.SHANTANAGOUDAR, P.D.WAINGANKAR

body2015
JUDGMENT : Mohan M. Shantana Goudar, J. 1. The judgment and order dated 26.07.2010 passed by the Addl. Sessions and Fast Track Court, Hassan, in Sessions Case No. 137/2003 is the subject matter of these two appeals. By the impugned judgment the Trial Court convicted accused Nos. 2, 3 and 4 for the offences punishable under Sections 341, 326 r/w 34 of IPC. The accused were sentenced to undergo imprisonment for one month for the offence punishable under Sections 341r/w 34 of IPC and were sentenced to undergo three years of imprisonment and to pay fine of Rs. 15,000/- for the offence punishable under Section 326 r/w 34 of IPC. Default clause is also imposed by the Trial Court. By the very judgment, the Trial Court acquitted the accused for the offences punishable under Sections 143, 147, 427, 506, 307 r/w 149of IPC. 2. Criminal Appeal No. 918/2012 is filed by the victim (PW.5) praying this Court to convict the accused for the offence punishable under Section 307 of IPC. Criminal Appeal No. 828/2010 is filed by the convicted accused praying for their acquittal. 3. The case of the prosecution in brief is that at about 9.45 p.m. on 16.12.2002, these accused including the appellants in Criminal Appeal No. 828/2010 formed themselves into unlawful assembly with an intention to commit the murder of the victim (V.T. Murthy - PW.5); way laid the Motor Cycle which was being driven by the victim PW.5 - Murthy and assaulted him with lethal weapons like chopper on various parts of the body; it is specifically alleged that accused Nos. 1 to 4 assaulted mercilessly with chopper, whereas accused Nos. 5 and 6 were standing nearby holding the weapons. PW.6 was pillion rider on the Motor Cycle, however he has not sustained any injury. Immediately after the incident, the victim was taken to Chikmangalore Government Hospital by PWs. 4 and 6 wherein the injured victim took treatment to certain extent, thereafter the victim was referred to Manipal Hospital for better treatment. Consequently the victim was admitted to Manipal Hospital and treated by PW.7 in the said hospital. In the meanwhile, first information came to be lodged by PW.6 as per Ex. P3 based on which Criminal case came to be registered against these accused for the offence punishable under Section 307 of IPC and other offences. Consequently the victim was admitted to Manipal Hospital and treated by PW.7 in the said hospital. In the meanwhile, first information came to be lodged by PW.6 as per Ex. P3 based on which Criminal case came to be registered against these accused for the offence punishable under Section 307 of IPC and other offences. PW.16 - the Investigation Officer completed the investigation and laid charge-sheet. 4. In order to prove its case, the prosecution in all examined 16 witnesses and got marked 20 exhibits and 15 material objects. On behalf of defence, no witness is examined, one exhibit is marked. As aforementioned, the Trial Court on evaluation of the material on record concluded the case and convicted accused No. 1 for the offence punishable under Sections 341, 326 r/w 34 of IPC. However, they are acquitted for other offences including the offence punishable under Section 307 with which they were charged. It is also relevant to note that during the subsistence of the trial before the Court below, accused No. 1 has expired. Hence no order is passed against accused No. 1, though the trial Court found that he was also involved in the incident along with accused Nos. 2, 3 and 4. 5. Sri A.H. Bhagavan, learned counsel appearing for respondent Nos. 2, 3 and 4 fairly submits that accused may not have any case on merits, inasmuch as the victim has sustained severe injuries on his legs and the hands; however, he submits that the accused have not committed offence punishable under Section 307 of IPC inasmuch as none of the injuries sustained by the victim are on the vital parts of the body; that there was no intention on the part of the accused to commit the murder of the victim; had it been the intention of the accused, to do away with the life of the victim they would not have left the spot without committing murder, more particularly when the victim was not armed and the accused were armed with deadly weapons. He further submits that the sentence of imprisonment imposed by the Trial Court is on the higher side; the incident took place in the year 2002; now that 13 years have elapsed, no useful purpose will be served in sending the accused to jail after such length of time, more particularly, when the victim can be compensated adequately in terms of money. During the course of arguments he submitted that each of the accused Nos. 2, 3 and 4 are ready to pay compensation of Rs. 1,00,000/- (Rupees One Lakh only) each to the victim, in case, if the sentence of imprisonment is reduced to one year. The submission is opposed by Sri Gopalaswamy, learned Advocate appearing on behalf of the victim. He submits that it is a clear case wherein the accused needs to be convicted for the offence punishable under Section 307 of IPC; the accused have assaulted the victim mercilessly on all parts of the body; if the victim had not avoided assault on the vital parts of the body, he would have been done to death on the spot by the accused; since the victim avoided the assault by the accused on his neck by resisting with his hands; victim sustained grievous injuries not only on both the hands as well as on legs; since there was profuse bleeding because of the injuries sustained, the accused are liable to be convicted for the offence punishable under Section 307 of IPC. In the alternative, he submits that even if this Court considers that the accused have committed an offence under Section 326 of IPC, the sentence of imprisonment needs to be enhanced to 10 years. 6. PW.1 is the witness for the scene of offence panchanama - Ex. P1 and recovery panchanama -Ex. P2. Chopper is recovered under Ex. P10 at the instance of accused No. 2. PW.2 is another witness to Ex. P1. PW.3 is witness to recovery mahazar - Ex. P.2, chopper is recovered at his instance. PW.4 has taken the injured to the hospital immediately after the incident. PW.5 is the injured eye witness. PW.6 is the eye witness, he was a pillion rider of the Motor Cycle, which was being driven by PW.5/victim. He lodged the first information as per Ex. P.3, at about 1.10 a.m. on 17.12.2002 before the Station House Officer of Belur Police Station. PW.7 is the Doctor attached to Manipal Hospital. He has treated the victim and he was issued the wound certificate as per Ex. P4. PW.8 is the Doctor working in Chickmangalur Government Hospital after treating the injured he has made entries in the Register as per Ex. P6. PW.7 is the Doctor attached to Manipal Hospital. He has treated the victim and he was issued the wound certificate as per Ex. P4. PW.8 is the Doctor working in Chickmangalur Government Hospital after treating the injured he has made entries in the Register as per Ex. P6. PW.9 is the Station House Officer/Head Constable, he registered the Crime based on the first information lodged by PW.6, he has issued first information report to the jurisdictional Magistrate as per Ex. P.7. PW.10 is the Assistant Sub-Inspector of Police who conducted part of the investigation. PW. 11 is the witness who has signed Ex. P10 under which the MO. Nos. 13 and 14 were recovered at the instance of accused Nos. 2, 4 and 6. PW.12 is the witness for recovery of chopper at the instance of accused No. 3 under panchanama Ex. P14. PW.13 is the witness for recovery of chopper - MO. No. 15 at the instance of accused No. 5 in Ex. P.12. PW.14 is another Sub Inspector of Police who arrested accused No. 1 on 15.01.2003. PW.15 is the Police Constable who participated in the investigation. PW.16 is the Investigation Officer who completed the investigation and laid the charge-sheet. 7. We have already made it clear in the aforementioned paragraphs that Sri A.H. Bhagavan, learned Advocate for the accused has fairly submitted that the Trial Court is justified in convicting the accused for the offence punishable under Section 326 of IPC. However, he prayed only for reduction in sentence. Even otherwise, we find from the records that the Trial Court on merits has rightly held that the prosecution has proved its case beyond reasonable doubt for the offence punishable under Section 326 of IPC. 8. First information came to be lodged by PW.6 immediately after the incident. The incident has taken place at about 9.45 p.m. while the victim and PW.6 were proceeding on a Motor Cycle from the house of PW.6 on Singapura Yamasandi Road; at that point of time, accused Nos. 1 to 4 came near Iruvalli Village and way laid the Motor Cycle. All these accused Nos. 1 to 4 were holding choppers in their hands; after seeing the accused, PWs. 1 to 4 came near Iruvalli Village and way laid the Motor Cycle. All these accused Nos. 1 to 4 were holding choppers in their hands; after seeing the accused, PWs. 5 and 6 stopped the vehicle; accused No. 1 damaged the headlight of the motor cycle and told PW.5 that he would not leave PW.5 without committing his murder, so saying he started assaulting PW.5; accused Nos. 2, 3 and 4 also started assaulting PW.5 mercilessly; when PW.6 tried to intervene he was threatened with dire consequences by accused Nos. 1 to 4; accused Nos. 5 and 6 came to the spot later on and were standing near the scene of offence. PW.6 raised hue and cry loudly consequent upon which one Mr. Lokesh and others from Iruvalli Village came on Motor Cycle and after seeing Lokesh, Mahesh and others, the accused fled away from the scene. Immediately thereafter the Car of PW4 (who is from Gandehalli Village) was secured and PW.5 was shifted to Chickmangalur Hospital. Thereafter PW.6 went to Belur Police Station and lodged the first information (Ex. P3) at 1.30 a.m. on 17.12.2002. Based on such first information, crime came to be registered by PW.9-Head Constable of Beluru Police Station. The version as found in Ex. P3/first information lodged by PW.6 is fully supported by the versions of PWs. 5 and 6 before the Court. PW.5 is none other than the victim and PW.6 is the eye witness who was accompanying the victim on the motorcycle as a pillion rider. 9. PW.5 has in detail narrated the incident in question. He has also deposed about the motive for commission of the offence. The motive as deposed by PW.5 was that the villagers of Vaginakere village had raised contribution from public for construction of Someshwara Temple in the village and such contribution amount was permitted to be retained by the injured-PW.5 in his safe custody; accused Nos. 1, 4 and 6 were aggrieved of such action, and hence they quarreled with the villagers on the ground that the contribution amount should not be allowed to be retained by PW.5; however, the villagers permitted PW.5 to retain the contribution amount in his safe custody; accused Nos. 1, 4 and 6 had requested the villagers that the temple should be constructed with tiles roof, whereas PW.5 and villagers started constructing the temple with RCC building. 1, 4 and 6 had requested the villagers that the temple should be constructed with tiles roof, whereas PW.5 and villagers started constructing the temple with RCC building. In that regard also accused were grinding their axe against PW.5. So also, another motive as deposed by PW.5 is that there was dispute with regard to the land situated in front of school belonging to legal representatives of one Javaraiah; PW.5 wanted that land to be retained for the purpose of village children to be used as playing area and hence he and villagers purchased that land by raising contribution for the purpose of village activities; however, accused Nos. 4 and 6 who wanted to purchase that land for their benefit had grievance about the same and hence they had animosity for PW.5. In respect of incident in question, PW.5 has narrated that while he was proceeding on motorcycle with PW.6 as pillion rider, accused Nos. 1 to 4 came and waylaid the motorcycle; accused No. 1 thereafter damaged the headlight of the motorcycle and started assaulting PW.5; accused Nos. 2, 3 and 4 also joined hands with accused No. 1 and started assaulting PW.5 with choppers mercilessly. The overt acts of each of accused Nos. 1 to 4 are narrated by PW.5. However, vaguely he has deposed that accused Nos. 5 and 6 were also standing with the weapons at a distance. There is no allegations of even instigation or conspiracy against accused Nos. 5 and 6. Despite searching cross-examination of PW.5, nothing is brought out in support of case of prosecution. PW.5 has withstood in his cross-examination and has reiterated about the individual overt acts of accused Nos. 1 to 4. 10. The evidence of PW.5 is supported by the evidence of PW.6 who lodged complaint. The evidence of PW.6 is consistent with the case of the prosecution as found in the first information lodged by him. It fully supports the evidence of PW.5. 11. We find the evidence of PWs. 5 and 6, consistent, cogent and their presence on the spot cannot be disputed. PW.5 has sustained very many grievous injuries. Their evidence fully supports the case of prosecution in all material aspects. Therefore, the Trial Court is justified in relying upon the evidence of PWs. 5 and 6 while coming to the conclusion. 12. The wound certificate Ex. 5 and 6, consistent, cogent and their presence on the spot cannot be disputed. PW.5 has sustained very many grievous injuries. Their evidence fully supports the case of prosecution in all material aspects. Therefore, the Trial Court is justified in relying upon the evidence of PWs. 5 and 6 while coming to the conclusion. 12. The wound certificate Ex. P4 issued by Kasturaba Hospital, Manipal, wherein the victim took higher treatment for a longer time, discloses the following injuries:-- "1) 10 cm long sutured wound over right wrist with extension tendon injury. 2) 5 cm long sutured wound over shaft of left metacarpals dorsally. 3) 4 cm long sutured wound over dorsum of left wrist. 4) 3 x 1 cm laceration over anterior aspect of left forearm. 5) 3 cm long sutured wound over posterior aspect of left forearm. 6) 3 cm long sutured wound over posterolateral aspect of left arm. 7) 5 cm long sutured wound over superolateral aspect of right patellar. 8) Multiple lacerations of various sizes on right leg. 9) Multiple lacerations of various sizes left leg, left ankle and left foot. 10) Laceration of right quadriceps muscle both Tendo and chilles. 11) Open fracture of left 2, 3, 4, 5th metatarsals open fracture of left distal fibula, open fracture of left Talus and calcaneum, fracture of lower end of left tibia, fracture of left distal radius fracture of right distal fibula." Injury No. 11 as mentioned supra discloses that the victim has sustained number of fractures. The doctor has opined that the injuries sustained by the victim are grievous in nature. PW.7 is the doctor who treated the victim in Kasturba Hospital, Manipal. During the course of deposition, the said doctor has deposed that the victim had sustained the following injuries:-- "1) A sutured wound of 10 cm over the dorsum of (R) wrist extending transversely radial to ulnar border with inability to dorsiflex the wrist. 2) A sutured wound 4 cm transversely over the dorsum of (L) hand at the level shafts of metacarpals. 3) A sutured wound 4 cm over dorsum of (L) wrist. 4) A incised wound 3 x 1 cm on anterolateral aspect of (L) fore arm 5 cm above the wrist. 5) 3 cm sutured lacerations on the posterior aspect of (L) forearm 8 cm below the elbow joint. 3) A sutured wound 4 cm over dorsum of (L) wrist. 4) A incised wound 3 x 1 cm on anterolateral aspect of (L) fore arm 5 cm above the wrist. 5) 3 cm sutured lacerations on the posterior aspect of (L) forearm 8 cm below the elbow joint. 6) A sutured wound of 3 cm on posterolateral aspect of (L) arm 8 cm above the elbow joint. 7) A sutured wound of 5 cm over superolateral aspect of (R) patella. 8) A sutured wound of 3 cm over the anterior tibia 10 cm below the (R) knee. 9) A sutured wound of 5 cm over lateral aspect of (R) thigh 3 cm above the knee joint. 10) Two linear incised wounds of size 5x1 cm over the anterolateral aspect of (R) leg 10 cm below the knee joint. 11) Small multiple abrasions over the anterior and lateral aspect of (R) knee. 12) A sutured wound of size 10 cm over posterior aspect of (R) leg at the level of ankle joint. 13) An incised wound of 15x1 cm over mid sole of the left foot. 14) An incised wound of 4x1 cm over (L) sole 5 cm proximal to base of the toes. 15) 1x1 cm abrasion over the medial malleolus of (L) leg. 16) A sutured wound of 6 cm over dorsum on (L) foot extending from base of 3rd to 5th toes. 17) A sutured wound of 8 cm on dorsum of (L) foot extending from base of 2nd tow to lateral border of foot. 18) A sutured wound of 6 cm over dorsum of (L) foot 5 cm below the ankle joint. 19) Small multiple abrasion over the (L) knee joint. 20) 6x1 cm abrasion on the lateral aspect of (L) thigh just above the knee joint. 21) 8x1 cm abrasion over the lateral aspect of (L) thigh 6 cm above the knee jont. 22) 6x1 cm abrasion over the lateral aspect of (L) thigh 15 cm above (L) knee. 23) Bilateral extensor tendon in jury of both writs. 24) Bilateral tendonachilles injury. 25) Displaced oblique fracture of shaft of 2nd, 3rd 4th and 5th metatarsals of (L) foot. 26) Displaced fracture body of (L) talus. 27) Fracture lower end of (L) tibia and fibula 28) Fracture lower 1/3rd of the (R) fibula 29) Intraarticular fracture of (R) radial styloid process. 24) Bilateral tendonachilles injury. 25) Displaced oblique fracture of shaft of 2nd, 3rd 4th and 5th metatarsals of (L) foot. 26) Displaced fracture body of (L) talus. 27) Fracture lower end of (L) tibia and fibula 28) Fracture lower 1/3rd of the (R) fibula 29) Intraarticular fracture of (R) radial styloid process. 30) Intraarticular fracture of lateral condyle of (R) tibia. 31) Displaced fracture of body of (R) talus." In the examination in chief, the doctor has clarified that in Ex. P4 Dr. Shreeharsha, who had issued wound certificate had not mentioned abrasion injuries and he had merely mentioned certain lacerated injuries. The doctor (PW-7) has opined that injuries Nos. 23 to 31 are grievous in nature. The evidence of the doctor is not shaken in the cross-examination. However, he has not deposed that the injuries so sustained by the victim would have resulted in the death of the victim if emergency treatment is not given. It is specifically deposed by the doctor (PW.7) that the injuries sustained by the victim were not on the vital organs of the body. Though it is the version of PW.5 that he has taken treatment in Kasturaba Hospital, Manipal for about 6 months, there is no record to that effect. The doctor PW.7 has also not specified the period of treatment undergone by the victim. Be that as it may, the fact remains that the victim has sustained grievous injuries. He has sustained as many as seven fractures. 13. We may add here itself that the injured personally came before this Court at the time of hearing these appeals. We saw him limping to certain extent though he appears to be healthy in other respects. 14. Since the injuries are not on the vital parts of the body and as injuries could not have led to the death of the victim if emergency treatment was not to be given to him, we are of the opinion that the offence may fall under Section 326 of IPC and not under Section307 of IPC. While observing so, we have kept in mind the fact that the victim as well as PW.6 were unarmed at the time of incident, whereas accused Nos. 1 to 4 were armed with deadly weapons. Even after the victim falling on ground, accused Nos. While observing so, we have kept in mind the fact that the victim as well as PW.6 were unarmed at the time of incident, whereas accused Nos. 1 to 4 were armed with deadly weapons. Even after the victim falling on ground, accused Nos. 1 to 4 have chosen to assault him on his arms and not on vital parts of the body. Not even a single injury is found on the vital part of the body. In view of the same, we are of the opinion that accused Nos. 1 to 4 did not have intention to commit murder of the victim. Therefore, the Trial Court has rightly convicted accused for the offence under Section 326of IPC and not under Section 307 of IPC. 15. Sri. Bhagavan, learned counsel appearing on behalf of accused Nos. 2 to 4 as aforementioned, prays that leniency may be shown in favour of accused inasmuch as there was no motive on the part of any of accused Nos. 2 to 4 to commit offence; the incident has taken place at the instance of accused Nos. 1 and 6; Accused No. 1 has expired and Accused No. 6 is acquitted; already 13 years have lapsed from the date of the incident and therefore he submits that the victim may be compensated in terms of money by imposing higher sentence of fine and by reducing the sentence of imprisonment. 16. We do not agree with the said submission made by the defence counsel. Having regard to the number of severe injuries sustained by the victim and as the victim was assaulted mercilessly when he was going to his house on a motorcycle after completion of the work that too when he was unarmed; since there was absolutely no provocation on the part of the victim during the relevant point of time and that the accused had come to the spot fully prepared inasmuch as they were armed with weapons, in our of considered opinion, the sentence of imprisonment of three years as imposed by the Trial Court itself is a lenient view under the facts and circumstances of the case. Unfortunately, in the matter on hand, the State has not filed the appeal. Therefore, we are unable to enhance the sentence. The appeal is filed only by the injured-victim. In law (proviso to Section 372 of Cr.P.C.), he cannot seek for enhancement of sentence. Unfortunately, in the matter on hand, the State has not filed the appeal. Therefore, we are unable to enhance the sentence. The appeal is filed only by the injured-victim. In law (proviso to Section 372 of Cr.P.C.), he cannot seek for enhancement of sentence. In the matter on hand, unfortunately the victim though has filed the appeal has not sought for compensation or for enhancement of compensation. He has merely sought for the conviction of the accused for the offence under Section 307 of IPC. 17. Looking to the totality of facts and circumstances, in our considered opinion, the judgment and order of conviction and sentence passed by the Trial Court appears to be just and proper. Hence, no interference is called for. The appeals fail and the same stand dismissed. We place on record the valuable services rendered by Sri. Rahul Reddy, learned Amicus Curiae for accused Nos. 5 and 6 in assisting the Court. Registry is directed to pay a sum of Rs. 5,000/- (Rupees Five Thousand Only) as honorarium to the learned Amicus Curiae.