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2016 DIGILAW 477 (KAR)

STATE OF KARNATAKA v. MANJUNATHA @ KARIUGRA

2016-06-22

BUDIHAL R.B., MOHAN M.SHANTANAGOUDAR

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JUDGMENT : Mohan Shantanagoudar, J. The judgment and order of acquittal dated 24.1.2013 passed by the Fast Track Court, Chitradurga in S.C. No. 102/2012 is appealed against by the State. By the impugned judgment the trial Court has acquitted the accused of the offences punishable under Sections 114, 324, 307, 504, 506 r/w Section 34 of IPC. 2. Case of the prosecution in brief is that due to prior rivalry between the complainant (P.W.1) and accused No. 1, quarrels used to take place between them; at about 6.15 p.m. on 5.1.2012, when the complainant was talking with P.Ws.4, 5 and 6 near public water tank situated at Gollarahatti of Madadakere village, Hosadurga taluk, accused No. 1 started quarrelling with the complainant and thereafter, gave a blow with the chopper over the left ear of the complainant: (P.W.1); he also assaulted P.Ws.2 and 3 who intervened in the meanwhile; consequent upon which, P.W.1 sustained grievous injuries and P.Ws.2 and 3 sustained simple injuries; due to assault by accused No. 1 on the left ear of P.W.1, his left earlobe is said to have been slit into two pieces; accused No.2 instigated accused No. 1 to commit the offences. Based on the aforementioned allegations, complaint came to be lodged by P.W.1 as per Ex.P1 before the Assistant Sub-Inspector of Police-P.W.11 who registered Crime No.5/2012 before Hosadurga police station at about 8.50-9.00 p.m. P.W.9, Sub-Inspector of Police completed the investigation and laid the charge sheet against both the accused for the above offences. 3. In order to prove its case, the prosecution in all examined 11 witnesses and got marked 10 exhibits and one material object. On behalf of the defence, no witness is examined. The trial Court, on evaluation of the material on record, acquitted the accused. 4. Sri. Vijayakumar Majage, learned Addl. SPP taking us through the material on record and the judgment of the Court below submits that the trial Court is not justified in acquitting at least accused No. 1, ignoring the evidence of two eyewitnesses P.Ws.2 and 3 and the evidence of P.W.1, who has sustained grievous injury apart from simple injuries. The evidence of P.Ws.1 to 3 is also supported by the evidence of P.Ws.4 and 6 who have supported the case of the prosecution. P.Ws.4 and 6 are the eyewitnesses to the incident. The evidence of P.Ws.1 to 3 is also supported by the evidence of P.Ws.4 and 6 who have supported the case of the prosecution. P.Ws.4 and 6 are the eyewitnesses to the incident. The ocular testimony of P.Ws.1 to 4 and 6 is further supported by the medical evidence tendered by the Doctor P.W. 10 who examined P.Ws.1 to 3 and issued wound certificate as per Ex.PS to P7. Thus, according to him, the trial Court ought to have convicted accused No. 1 for the offence under Section 326 of IPC and ought to have sentenced him with rigorous imprisonment. Per-contra, Sri. O. Dheemanth, learned advocate appearing on behalf of the accused argued in support of the judgment of the Court below. 5. As mentioned supra, injured-P.W.1 has lodged the complaint before the Asst. Sub-Inspector of Police P.W. 11 while he was taking treatment in Hosadurga Government Hospital at about 8.10-8.50 p.m.; the incident has occurred at about 6.15-6.30 p.m.; immediately after admission of P.W.1 to the hospital, the medico legal case intimation was sent by the hospital to the concerned police and P.W. 11, the Assistant Sub-Inspector of Police came to the hospital on receipt of medico legal case intimation and recorded the statement of P.W.1 as per Ex.P1, based on which, crime came to be registered. The complaint-Ex.P1 narrates about the previous enmity between the parties; about the motive for commission of the offence and about the actual incident in question. Accused No. 1 used to call the sister of P.W.1 over phone and tell her that he would marry her and that therefore, she should cohabit with him etc., He had even threatened her with dire consequences in case if she does not agree for his proposition. In that regard, P.W.1 and his family members used to advice accused No. 1 not to intervene in their family matters, despite the same, accused No. 1 continued his illegal activities. The incident in question is as a result of such motive. In that regard, P.W.1 and his family members used to advice accused No. 1 not to intervene in their family matters, despite the same, accused No. 1 continued his illegal activities. The incident in question is as a result of such motive. Further it is stated in the first information that while the injured was talking with P.Ws.4, 5 and 6, accused No. 1 came to the said place and assaulted on the head of P.W.1 with the chopper, consequent upon which, the left earlobe of P.W.1 was cut into two pieces; when P.Ws.2 and 3 who are the parents of P.W.1 tried to intervene, they were also not spared by accused No. 1. Immediately after the incident, P.Ws.1, 2 and 3 were shifted to the hospital in ambulance by the friends of P.W.1. 6. The aforementioned deposition of P.W.1 as found in the first information is fully supported by him before the Court during his deposition. He has reiterated about the motive for commission of the offence in detail, as well as about the incident in question. We find that the evidence of P.W.1 is consistent with his version as found in the first information. Except making few suggestions, the defence has not tried to elicit any useful information in their favour. Even in the cross-examination, P.W.1 has reiterated about the incident in question. Despite lengthy cross-examination, the evidence of P.W.1 could not be shaken by the defence. As mentioned supra, the incident has taken place at about 6.15 p.m. and immediately thereafter, the injured was taken to Hosadurga Government hospital and was admitted to hospital at about 7.30 p.m. Police arrived at the hospital at about 8.00 p.m. and recorded the statement of P.W.1 as per Ex.P1. Thus, there was no scope for false implication of accused No. 1 at all. Moreover, the allegations are forthcoming only against accused No. 1. Though it is vaguely stated that accused No.2 instigated accused No. 1, such version does not find support from other material on record. Even otherwise, we find that the role of accused No.2 does not assume importance in the matter on hand, more particularly, in the light of the crime committed by accused No. 1. Motive is directly against accused No.1; he was enraged by the advices given by the family members of P.W.1. Even otherwise, we find that the role of accused No.2 does not assume importance in the matter on hand, more particularly, in the light of the crime committed by accused No. 1. Motive is directly against accused No.1; he was enraged by the advices given by the family members of P.W.1. P.W.1 has identified the chopper used for commission of the offence by accused No. 1. In our considered opinion, the evidence of P.W.1 is consistent to the case of the prosecution and the same is trustworthy, natural and unblemished. 7. The evidence of P.W.1 is fully supported by the evidence of P.Ws.2 and 3, in so far as the assault by accused No. 1 is concerned on the complainant-P.W.1. They have also deposed about the motive for commission of the offence and about the incident of assault by accused No. 1 over the injured, consequent upon which, the injured sustained grievous injury on his left earlobe. We find that the evidence of P.Ws.2 and 3 is consistent with the evidence of P.W.1. They have also deposed that at about 6.30 p.m. while the injured was talking with his friends accused No. 1 came with a chopper and assaulted on his left ear. When they tried to intervene in the matter, they were also not spared by accused No. 1. Though we find that the material brought on record by the prosecution to prove the assault on P.Ws.2 and 3 is not sufficient, their evidence is reliable in so far as the evidence of P.W.1 is concerned. P.W.3 has deposed that P.Ws.2 and 3 were not admitted to any hospital. However, Ex.P6 and P7 are the wound certificates issued by Hosadurga Government hospital in respect of injuries sustained by P.Ws.2 and 3. Even assuming that there is no consistency between the evidence of P.Ws.2 and 3 and the evidence of P.W.10- Doctor with regard to treatment of P.Ws.2 and 3 in the Government hospital at Hosadurga and though the evidence of P.Ws.2 and 3 with regard to assault on themselves is shaky, under the aforementioned circumstances, we do not find any reason to disbelieve their version with regard to injuries sustained by P.W.1, which were caused by accused No. 1. As mentioned supra, the evidence of P.Ws.2 and 3 fully supports the evidence of P.W.1. 8. As mentioned supra, the evidence of P.Ws.2 and 3 fully supports the evidence of P.W.1. 8. The aforementioned evidence on record of P.Ws.1, 2 and 3 is again supported by the evidence of P.Ws.4 and 6 who are the eyewitnesses to the incident in question. They have also deposed about the incident in question consistently and there is no reason as to why their evidence should be disbelieved, more particularly, when they are not related or interested in any person. 9. Despite the voluminous evidence as discussed by us in the aforementioned paragraphs, the trial Court surprisingly has acquitted accused No. 1 on the ground that the Doctor has mentioned in his certificate that the assault was caused by sickle and that the evidence of P.W.3 discloses that P.Ws.2 and 3 have not taken treatment in any hospital. Such reasons assigned by the trial Court are unacceptable. Merely because there is some variation in mentioning the nature of weapon in the wound certificate by the Doctor, the evidence of P.Ws.1 to 4 and 6 cannot be brushed aside on other aspects. 10. There cannot be any dispute that chopper is also a sharp cutting curved weapon almost similar to sickle. May be there are some material differences between the two weapons, but both are sharp cutting weapons and used generally by agriculturists. There cannot be any dispute that the ocular testimony of the injured witness prevails over the expert's opinion. Moreover the Doctor is not eyewitness to the incident. He has merely recorded as to what was stated before him by the person who has admitted the patient to the hospital. Added to it, the scene of offence panchanama Ex.P4 reveals the chopper M.O.1 is seized from the spot. The Doctor P.W. 10 has admitted that the injuries sustained by P.W.1 can be caused by M.O.1 chopper. In view of the same, in our considered opinion, the trial Court is not justified in acquitting the accused only on the sole basis that the nature of weapon used for commission of the offence is wrongly mentioned in the history recorded by the Doctor. Over whelming evidence of the injured eyewitness along with ocular testimony of all other eyewitnesses clearly reveal and unerringly point out to the fact that the accused No. 1 has used chopper for commission of the offence. Over whelming evidence of the injured eyewitness along with ocular testimony of all other eyewitnesses clearly reveal and unerringly point out to the fact that the accused No. 1 has used chopper for commission of the offence. So also, merely because one stray sentence found in the evidence of P.W.3 that himself and his wife (P.W.2) were not admitted to any hospital after the incident would not render the evidence of P.Ws.2 and 3 completely futile or false, in as much as, the evidence of P.Ws.2 and 3 with regard to assault by accused No.1 on P W.1 is consistent with the case of the prosecution. Moreover, it is the duty of the Court to remove the grain from the chaff. The principle of false in uno falsus in omnibus cannot be made applicable to the Indian conditions. There is every tendency of witnesses exaggerating to certain extent in some circumstances. Moreover, the Court cannot lose sight of the fact that the witnesses who have deposed before the trial Court are all uneducated and village rustics. Having regard to the totality of the facts and circumstances, we conclude that the prosecution has proved its case beyond reasonable doubt that accused No.1 assaulted on the left ear of P.W.1 with chopper M.O.1, consequent upon which, left earlobe of P.W.1 was slit into two pieces, which has to be sutured and consequently, there is disfiguration of face of P.W.1. The injury sustained by P.W.1 falls under Sixth category of Section 320 of Indian Penal Code. Hence, accused No. 1 is liable to be convicted for the offence under Section 326 of IPC. We hasten to add here itself that the prosecution has not proved its case as against accused No.2 and hence, the order of acquittal passed by the trial Court in her favour is just and proper. 11. Sri. O. Dheemanth, learned advocate for the accused submits that accused No. 1 is poor and agriculturist by profession; he has undergone more than two months of imprisonment in the crime in question. Thus, according to him, the period already undergone by him is sufficient punishment, which can be imposed, more particularly, when the parties might have forgotten their differences. However, the said submissions are opposed by learned Addl. SPP. Thus, according to him, the period already undergone by him is sufficient punishment, which can be imposed, more particularly, when the parties might have forgotten their differences. However, the said submissions are opposed by learned Addl. SPP. Having regard to the totality of the facts and circumstances and after hearing the advocates on the point of sentence, the following order is made:- (a) The judgment and order of acquittal dated 24.1.2013 passed by the Fast Track Court, Chitradurga acquitting accused No. 1 stands set aside. (b) Accused No. 1 is convicted for the offence under Section 326 and 324 of IPC. (c) He is sentenced to undergo imprisonment for the period which he has already undergone during the pendency of the matter before the Court below. In addition, he is sentenced to pay a fine of Rs. 40,000/-. In default, to undergo imprisonment for three months. (d) In case of recovery of fine amount, the entire fine amount shall be disbursed in favour of P.W.1, namely, Manjunatha as compensation under Section 357 of Cr.P.C. (e) The judgment and order of acquittal, acquitting accused No.2, passed by the trial Court, stands confirmed. 12. Appeal is allowed in part accordingly.