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2015 DIGILAW 96 (KAR)

RAMESH v. STATE BY KUNIGAL POLICE

2015-01-19

MOHAN M.SHANTANAGOUDAR, P.S.DINESH KUMAR

body2015
JUDGMENT The judgment and order of acquittal dated 3.11.2010 passed by the Principal Sessions Court, Tumkur, in S.C.No.115/2008 is called in question by the injured in the incident which gave rise to the matter on hand. The sole accused/respondent No.2 was charged for the offences punishable under Sections 326 and 307 of IPC. The trial Court has acquitted the accused. 2. The case of the prosecution in brief is that; there was animosity in between the injured PW2 (Mr.Ramesh appellant) and accused since a long time; their houses are adjoining each other; even the agricultural land is adjoining each other, PW2 was tethering the cattle on the bund of the agricultural land of the accused and injured at about 9.30 a.m. on 3.11.2007; PW2 had tied his cattle with the help of ropes; the accused being annoyed by the said act cut the ropes tied to the cattle; PW2 took exception to it and there was verbal altercation between the two; the accused who was having sickle in his hand assaulted on the face of PW2, consequent upon which PW2 sustained severe bleeding injury on the nose and on the forehead; he was immediately taken to the Government hospital at Kunigal; the doctor PW7 gave first aid treatment to PW2 and referred the patient to Victoria hospital, Bangalore, for higher treatment; thereafter the victim has taken treatment in Victoria hospital and said to have undergone plastic surgery over the nose. 3. In the meanwhile, PW1 Muniraja the friend of PW2 who witnessed the incident, lodged the first information before Kunigal police station, Kunigal, as per Ex.P1 at about 2.30 p.m. on 3.11.2007, which came to be registered by the Head Constable of the police station (PW8) in Crime No.289/2007 for the offence under Section 324 of IPC. The PSI of the police station (PW6) took over investigation and after completion of investigation laid the charge sheet. 4. As aforementioned, the accused was charged with the offences punishable under Sections 326 and 307 of IPC. 5. In order to prove his case, prosecution in all examined 10 witnesses and marked 9 Exhibits and two material objects. On behalf of the defence, no witness is examined. 6. PWs,1, 3, 4 and 10 are the witnesses to the incident in question. PW2 is the injured eyewitness. PW5 is the witness for scene of offence; Panchanama Ex.P2; M.O.1 sickle was seized from the spot. On behalf of the defence, no witness is examined. 6. PWs,1, 3, 4 and 10 are the witnesses to the incident in question. PW2 is the injured eyewitness. PW5 is the witness for scene of offence; Panchanama Ex.P2; M.O.1 sickle was seized from the spot. He has also deposed about the seizure of M.O.1 and the sickle, as well as the blood stain clothes of the injured (MO2). PW6 is the investigating officer who completed the investigation and laid the charge sheet. PW7 is the doctor working at hospital in Kunigal. She has given first aid treatment to the victim and issued the wound certificate as per Ex.P3 on 19.12.2007. PW8 is the Head Constable. He registered the crime based on the complaint lodged by PW1. He has also recorded the further statement of the complainant as per Ex.P6. PW9 is the PSI. He conducted part of the investigation. PW10 as aforementioned is the eyewitness to the incident. However, he has not supported the case of the prosecution. 7. The case of the prosecution mainly rests on the ocular testimony of PW1 and PW2, coupled with the evidence of the doctor PW7. PWs.3, 4 and 10 are stated to be the eyewitnesses. 8. We find from the evidence that the trial Court is not justified in acquitting the accused. PWs.3 and 4 have admitted in their cross-examination that they came to the spot after the incident. Both these witnesses have deposed that when they reached the spot, the injured had already sustained injuries and that a cloth was tied on his face. As aforementioned PW10 has turned hostile to the case of the prosecution inasmuch as he did not support the case of prosecution relating to the incident in question. 9. Thus what remains is, the evidence of PWs.1 and 2. We do not find any ground to agree with the reasons assigned by the Court below to disbelieve PW2. He is an injured eyewitness. The respondent is a sole accused. The version of PW2 during the course of investigation as well as before the Court is consistent to the effect that he was assaulted by the accused with the sickle, consequent upon which, he sustained severe injuries on his nose. The evidence of PW1 fully supports the evidence of PW2 and the case of prosecution. The version of PW2 during the course of investigation as well as before the Court is consistent to the effect that he was assaulted by the accused with the sickle, consequent upon which, he sustained severe injuries on his nose. The evidence of PW1 fully supports the evidence of PW2 and the case of prosecution. The trial Court has disbelieved the version of PWs.1 and 2 on the ground that the prosecution has not come out with their real motive and that there are number of variations in the evidence of these two witnesses. In that regard we have meticulously perused the evidence of PWs.1 and 2. We find that the trial Court is not correct in observing as mentioned supra. Their evidence in respect of the incident in question is consistent, cogent and reliable. Both the witnesses have consistently deposed that the accused had made use of the sickle for commission of the offence. Of course they have deposed that the incident had taken place at about 10.00 a.m. to 10.30 a.m. On the other hand, the complaint discloses that the incident has taken place at 9.30 a.m. Merely because of such small discrepancy in the evidence of these two eyewitnesses, their version cannot be disbelieved in its entirety. Admittedly, PWs.1 and 2 are illiterate agriculturists. PW1 has even gone to the extent of deposing that he does not know what is written in the complaint, inasmuch he cannot read and write. There is no reason as to why PW2 shall make false allegation against the accused, if accused was really innocent. This Court may take judicial notice of the fact that the injured would not normally leave the real assailant by implicating the innocent person. Even if innocent person is falsely implicated, generally the injured would not forget to implicate the real assailant. It is nobody’s case that PW2 was unconscious. It is also nobody’s case that PW2 is not known the accused. On the other hand, the accused is a neighbour of PW2. The animosity prevailed between the two families because of the boundary dispute. Merely because there is change in the version of the prosecution witnesses relating to motive for commission of the offence, the same would not affect the main matter relating to the assault by the accused on PW2. On the other hand, the accused is a neighbour of PW2. The animosity prevailed between the two families because of the boundary dispute. Merely because there is change in the version of the prosecution witnesses relating to motive for commission of the offence, the same would not affect the main matter relating to the assault by the accused on PW2. In view of the same, the trial Court is not justified in disbelieving the version of PWs.1 and 2, more particularly the version of PW2. 10. In the matter on hand, the investigating officer has not taken pains to produce the medical records pertaining to the treatment of PW2 in Victoria hospital, Bangalore. There is nothing on record to show that the victim was subjected to plastic surgery at Victoria hospital, Banglaore. There is nothing on record to show as to how many days he was an inpatient in Victoria hospital, Bangalore. In the absence of any medical records relating to Victoria hospital, we cannot assume that the victim had undergone plastic surgery to over come the disfigurement on his nose. 11. However, we have the evidence of the doctor PW7 who gave the first aid treatment to the injured PW2 at Kunigal hospital. She admits in her evidence that she is not the orthopedician. It is further admitted by her that she is gynecologist. She has further admitted that she has simply referred the patient to Victoria hospital for treatment. Thus, it is clear from the evidence of PW7 that she is not an expert in the field; that she has not performed plastic surgery on the nose of the injured; that she has not sent the medical intimation to the police immediately after admission of the patient to the hospital; that she has issued the wound certificate ExP3 based on the material supplied to her after the treatment of PW2 in the Victoria hospital. Hence, it is clear that she does not have personal knowledge about the treatment provided to the victim by Victoria hospital. Moreover, as aforementioned, the medical records pertaining to the matter on hand issued by the Victoria hospital are not produced before the Court. Hence, it is clear that she does not have personal knowledge about the treatment provided to the victim by Victoria hospital. Moreover, as aforementioned, the medical records pertaining to the matter on hand issued by the Victoria hospital are not produced before the Court. In the light of the aforementioned material on record, we are of the opinion that the victim has not sustained grievous injury, particularly in the light of the fact that there is nothing on record to show that the injuries sustained by the victim falls within any one of the items found under Section 320 of IPC. We cannot assume in favour of the prosecution that the victim has sustained grievous injuries, in the absence of the medical records relating to Victoria hospital pertaining to the matter on hand. 12. Having regard to the aforementioned facts and circumstances, we are of the opinion that the accused has committed the offence punishable under Section 324 of IPC and not under Sections 326 and 307 of IPC. The materials on record are not sufficient to conclude that the Victim has sustained grievous injury or that the accused had intention to commit the murder of the victim. If really the accused had any intention of doing away with the life of the victim, he would not have left without causing major injures to the victim, particularly when the victim was unarmed and that the accused was armed with sickle. Thus, the offence may not fall under Section 307 of IPC. 13. We have heard learned Amicus Curiae as well as the other advocate on record on the question of sentence. 14. Since we find that the victim has sustained simple injuries on the nose and that the incident had occurred because of boundary dispute between the neighbours, (both are agriculturists), we are of the opinion that interest of justice will be met if the accused is imposed with fine of Rs.7,500/. No useful purpose will be served by imposing the sentence of imprisonment on the accused under the facts and circumstances of the case. Accordingly, following order is made. (a) The appeal is allowed. The impugned judgment is set aside. (b) The accused is convicted for the offence punishable under Section 324 IPC. He is sentence to pay a fine of Rs.7,500/-, in default of payment of fine, he shall undergo simple imprisonment for one year. Accordingly, following order is made. (a) The appeal is allowed. The impugned judgment is set aside. (b) The accused is convicted for the offence punishable under Section 324 IPC. He is sentence to pay a fine of Rs.7,500/-, in default of payment of fine, he shall undergo simple imprisonment for one year. (c) In case of recovery of fine, entire fine amount shall be paid to the appellant/injured (PW2namely Ramesh) as compensation. (d) We place on record the valuable service rendered by Sri Amicus Curiae. In token whereof, he shall be paid Rs.5,000/- by the Registry as honorarium.