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2018 DIGILAW 419 (KAR)

Ashwathaiah @ Ashwath v. State of Karnataka

2018-03-21

K.SOMASHEKAR

body2018
JUDGMENT : This appeal is directed against the judgment of conviction and sentence passed by the Presiding Officer, Fast Track Court-IX, Bangalore in S.C.No.1032/2007 dated 22.03.2010 for the offence punishable under Section 307 of IPC sentencing him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.5,000/- and in default, to undergo imprisonment for 2 months. 2. The brief facts of the case of the prosecution are as follows: On 06.01.2007 at 9.40 p.m. CW1 Raju and CW2 Ramesh went to the house of the accused situated at Door No.2, 14th Cross, 2nd Main, Hoysala Nagar to enquire about the galata by him with the boys who were distributing water. About 3 years back, CW1 Raju through a broker sold the site to others which was intended to be purchased by the accused and in that regard there is enmity between accused and CW1 Raju. About 2 months back, accused, while constructing the house, has projected the sejja towards the road side and in that regard a complaint was also received by CMC. CW2 who was an employee of CMC, along with the engineer, visited the house of accused and instructed him to remove the sejja and thereby accused had enmity with CW2 Ramesh. 3. The accused, with an intention to commit murder of CWs. 1 and 2, stabbed CW1 on his abdomen, left armpit and left ear and also caused grievous injury to CW2 by stabbing him on his abdomen, left shoulder and left neck. In pursuance of the act of the accused, a case came to be registered against the accused, subsequently case is taken up for investigation and accused was chargesheeted for the offence punishable under Section 307 of IPC. Subsequently, court below has framed the charges against accused, the same was read over to him, accused pleaded not guilty and claims to be tried. 4. Subsequently, in order to substantiate the case, prosecution in all examined 8 witnesses as PWs. 1 to 8 and got marked 10 documents as per Exs.P1 to P10 and got marked material objects as MOs. 1 to 3. Subsequently, an incriminating statement under Section 313 was recorded wherein accused has denied the truth of the evidence of the prosecution. Accused did not come forward to adduce defence evidence as contemplated. 1 to 8 and got marked 10 documents as per Exs.P1 to P10 and got marked material objects as MOs. 1 to 3. Subsequently, an incriminating statement under Section 313 was recorded wherein accused has denied the truth of the evidence of the prosecution. Accused did not come forward to adduce defence evidence as contemplated. The court below after hearing the arguments advanced by the Public Prosecutor and learned counsel for the accused and on going through the entire evidence on record, convicted the accused for the offence punishable under Section 307 of IPC and sentenced him as stated supra. Being aggrieved by the same, the present appeal is preferred by the accused. 5. Heard Sri C.V.Nagesh, learned Senior Counsel for the appellant and Sri K.Nageshwarappa, learned Government Pleader for the State. 6. Sri C.V.Nagesh, learned Senior Counsel appearing for the appellant has taken me through the evidence of PWs. 6 and 7 who are the injured persons to bring home the guilt of the accused. He contends that for an offence under Section 307 of IPC, the prosecution is required to prove that but for some intervention, had the act had been completed, the same would have resulted in the death of the injured. But in this case, after sustaining the injuries PWs. 6 and 7 namely Raju and Ramesh have subsequently taken treatment at Mallya Hospital. The doctor who has treated the injured persons and issued the wound certificates as per Exs. P8 and P9, eventhough cited as a witness in the chargesheet, has not been examined to speak to the contents of Exs. P8 and P9 and also about the injuries sustained by PW6 and PW7. They have only marked the wound certificates as exhibits. Hence, he contends that there is absolutely no evidence to indicate that PWs. 6 and 7 have sustained any injuries, whether grievous, which in the ordinary course of nature, had not been treated immediately, would have resulted in their death. Hence the finding given by the trial court regarding the injuries and holding that it amounts to offence punishable under Section 307 of IPC is erroneous and unsustainable in the eye of law. 7. He further contended that the injuries alleged to have been sustained by PWs. 6 and 7 as per the wound certificates at Exs. Hence the finding given by the trial court regarding the injuries and holding that it amounts to offence punishable under Section 307 of IPC is erroneous and unsustainable in the eye of law. 7. He further contended that the injuries alleged to have been sustained by PWs. 6 and 7 as per the wound certificates at Exs. P8 and P9 are the one which could be classified as superficial injuries in view of the absence of any death for those injuries. They are only lacerated wounds measuring 2 to 5 cms. X 1 to 2 cms. It is stated that the injuries are caused through a knife MO2. If the accused had any intention to kill the victims then the wound could not be a lacerated wound but would be an incised wound. The description of MO2 as found in the seizure panchanama does not go well with the wounds described by the doctor at Exs. P8 and P9. Without considering this vital aspect, the court below has erroneously held that MO2 is the one made use of by the accused to assault PWs. 6 and 7. As could be seen from MO2 knife, it is a double edged sharp weapon and the tip of the blade is curved. If that is the case, the injuries said to have been found on the person of PWs. 6 and 7 as described in Exs.P8 and P9 would not have been possible at all. The court below, without adverting to Exs. P7, P8 and P9 and also MO2, has blindly and mechanically accepted the testimony of the investigator to come to the conclusion that the accused has assaulted PWs. 6 and 7 with MO2 and caused grievous injuries, which injuries otherwise caused the death of PWs. 6 and 7. The erroneous approach made by the court below has resulted in serious miscarriage of justice. 8. It is further contended that apart from examining PWs. 6 and 7, who are the injured persons, the prosecution has examined PW5 Rajesh who is the friend of the injured, as a witness, who has witnessed the incident of assault on the person of PWs. 6 and 7. The say of PWs. 5, 6 and 7 are selfcontradictory. 8. It is further contended that apart from examining PWs. 6 and 7, who are the injured persons, the prosecution has examined PW5 Rajesh who is the friend of the injured, as a witness, who has witnessed the incident of assault on the person of PWs. 6 and 7. The say of PWs. 5, 6 and 7 are selfcontradictory. Ex.P3 complaint which is said to have been recorded by PW8 Manjunath, Inspector of Police, Kamakshipalya Police Station has come into existence in the presence of a person by name Shashidhar. Although Shashidhar has been cited as a chargesheet witness, he has not been examined by the prosecution. Ex.P3 is a false and concocted document. There is inordinate delay in sending Ex.P3 to the jurisdictional court which delay has not been property explained. Hence, he submits that the judgment of conviction and sentence passed by the court below is unsustainable in law. 9. It is further contended that there is a total improper appreciation of the evidence brought on record, both oral and documentary and there is a total procedural lapse on the part of the court below from the stage of framing of the charge against the appellant till the time of the pronouncement of the judgment. Noncompliance of the mandatory requirement of law has resulted in serious prejudice to the appellant and resulted in miscarriage of justice. The prosecution has not established the main ingredient constituting a commission of an offence under Section 307 of IPC. Considering the nature of injuries alleged to have been sustained by the victim and in the absence of evidence indicating that appellant had any motive to do away with the life of the injured, the sentence imposed is excessive and proportionate to the nature of offence committed by the appellant. 10. In support of his arguments, he relied on the decision of the Hon’ble Supreme Court in the case of SHYAM SHARMA vs. STATE OF MADHYA PRADESH AND ANOTHER reported in (2017) 9 SCC 362 wherein, in para 4 it is held that PW3 a doctor who had examined the injured opines that the injury caused is without any premeditation to kill the injured. In the case on hand, the prosecution has failed to prove that the accused intended to cause the death of injured. Even the doctor who has treated the injured and issued wound certificates was not examined. In the case on hand, the prosecution has failed to prove that the accused intended to cause the death of injured. Even the doctor who has treated the injured and issued wound certificates was not examined. Hence, the said decision squarely applies to the case on hand. 11. Nextly, he relied on the decision of the Hon’ble Supreme Court in the case of VED PAL vs. STATE OF U.P. reported in 1987 (Supp). SCC 596 wherein it is held that the injuries caused were of superficial nature but the evidence of the doctor does not suggest that the injuries were of such a nature as were likely to cause death and modified the judgment convicting the accused for the offence punishable under Section 324 of IPC instead of Section 307 of IPC. Hence, submits that this case also squarely applicable to the case on hand. 12. Nextly, he relied on the decision of the Hon’ble Supreme Court in the case of LIFE INSURANCE CORPORATION OF INDIA & ANOTHER vs. RAM PAL SINGH BISEN reported in (2010) 4 SCC 491 relating to Indian Evidence Act wherein it is held that mere admission of a document in evidence does not amount to its proof. It is not known under what circumstances respondent had admitted those documents. In para 25 of the said judgment it is held that documentary evidence was also required to be proved by the appellants in accordance with the provisions of the Evidence Act, which they have failed to do. In the case on hand, the doctor who gave the wound certificate has not been examined. Hence, contends that the said decision is squarely applicable to the facts of this case. 13. Nextly, he relied on the decision of this Court in the case of RAMESH vs. STATE BY KUNIGAL POLICE AND ANOTHER reported in 2015 (2) Kar.L.J.584 wherein it is held that the accused has committed an offence punishable under Section 324 and not under Section 326 or 307 as the materials on record are not sufficient to conclude that the victim has sustained grievous injury or that accused had intention to commit murder. In the case on hand also there are no sufficient materials to hold that the injured sustained grievous injuries to hold that the accused is guilty of the charges punishable under Section 307 of IPC. In the case on hand also there are no sufficient materials to hold that the injured sustained grievous injuries to hold that the accused is guilty of the charges punishable under Section 307 of IPC. Hence, the said case squarely applicable to the case on hand. 14. Under these circumstances, it is prayed that by considering the above submissions, the appeal may be allowed and the appellant/accused be acquitted of the offences alleged against him. 15. On the other hand, Sri K.Nageshwarappa, learned Government Pleader for the State supports the judgment of the trial court and submits that the trial court, on proper appreciation of the evidence on record, that too of the evidence of PWs.6 and 7 who are the injured persons and also the evidence of PW.5 who is an eyewitness to the incident which is corroborated with the evidence of PWs.6 and 7 and the wound certificate at Exs.P8 and P9 substantially prove the case against the accused beyond reasonable doubt that the accused used MO.2 knife for causing injuries on the person of the injured and hence prays for dismissal of this appeal confirming the order passed by the court below. 16. Keeping in view the submissions made by the learned Senior Counsel for the appellant and learned Government Pleader for the respondent/State, the point that arises for consideration in this appeal is, Whether the court below was justified in convicting the accused for the offences punishable under Section 307 of IPC? 17. On hearing the contentions advanced by the learned counsel for the parties and on an evaluation of the material on record, it is to be seen that PW1 Ramu is the panch witness for the spot mahazar at Ex.P1. He has not stated anything about the incident. Even in the course of his cross-examination also he states that he does not know about the case. PW2 Ramachandra is the relative of PW6 Raju who is one of the injured. In his evidence he states that he received a phone call that Raju suffered injuries due to stabbing by accused by means of a knife. He has taken the injured PW6 to the hospital. But he is not an eyewitness to the incident. PW3 Raju is one of the panch witness for seizure mahazar at Ex.P2. In his evidence he states that he received a phone call that Raju suffered injuries due to stabbing by accused by means of a knife. He has taken the injured PW6 to the hospital. But he is not an eyewitness to the incident. PW3 Raju is one of the panch witness for seizure mahazar at Ex.P2. In the course of his cross-examination he deposes that he has seen the knife and signed for the seizure mahazar at Ex.P2. PW4 Rangaswamy who is an auto driver is also one of the panch witness for the seizure mahazar at Ex.P2. In his evidence he stated that he went to the house of the accused along with the police and seized a knife from that place. PW5 Rajesh is an eyewitness to the incident. He states in his evidence that on 06.01.2007 when he was coming back from his work, he heard some noise near the house of the accused. There was a quarrel between Raju and Ramesh with the accused. The accused went inside his house and brought a knife and stabbed Raju PW6 on his abdomen, left ear and left armpit and when Ramesh PW7 went to rescue PW6, accused stabbed him on his abdomen, chest, left shoulder and neck. Then PWs. 6 and 7 ran away from that place. Then, he along with Renuka shifted PW7 Ramesh to the hospital. In the course of his crossexamination, he denied the suggestions that he is the relative of the accused and there was a quarrel between the families of PW5 and the accused and PWs. 6 and 7 fell from the motor cycle. 18. PW6 Raju is the injured witness. He states in his evidence that on 06.01.2007 at 9.30 p.m. in connection with some bhajana he and PW7 on the way to their houses, went to the house of accused and requested the accused not to make galata and abuse the water boys. Then accused picked up a quarrel and went inside the house and brought a knife and stabbed on his abdomen, ear and armpit, causing bleeding injury. PW6 then went to pipeline road and called his sister’s husband and went with him to the hospital. Then accused picked up a quarrel and went inside the house and brought a knife and stabbed on his abdomen, ear and armpit, causing bleeding injury. PW6 then went to pipeline road and called his sister’s husband and went with him to the hospital. In the course of crossexamination he denied the suggestion that he and PW7 in a drunken state fell from the motor cycle and also the fact that he has taken treatment in Mallya Hospital for 10 days. 19. PW7 Ramesh is also one of the injured witnesses. In his evidence he has stated that he was working as a masistry in CMC office, Neelaiah was the waterman of Hoysala Nagar. Accused was making galata with the waterman about distribution of water. Neelaiah complained the same to PW7. On 06.01.2007, at about 9.30 p.m. after bhajana, this witness, along with PW6 went to the house of accused and informed that he was going on behalf of Neelaiah, accused went inside and brought a knife and stabbed on the abdomen, ear and armpit of PW6 and caused bleeding injury. When this witness went to rescue PW6, accused stabbed on his abdomen, armpit and neck. Then Rajesh PW5 and one Renuka took him to the hospital. In the course of his crossexamination, he denied the suggestion that he and PW6, in a drunken state, fell from the motor cycle and sustained injuries. 20. PW8 G.C.Manjunath, Police Inspector of Chandra Layout police station, in his evidence states that from August 2006 to August 2008 he was the Inspector of Kamakshipalya Police station and on 06.01.2007 he received a memo from the Mallya hospital and recorded the statement of injured Raju, who was conscious. On the basis of the statement, he registered a case in Cr.No.12/2007 for the offence punishable under Section 307 of IPC against the accused and submitted the FIR to the Court. On 09.01.2007, he recorded the further statement of Raju PW6. On 22.01.2007, he recorded the statement of PW7 Ramesh and posted his staff to trace the accused. On 26.4.2007, accused appeared before him along with anticipatory bail. He also recorded the voluntary statement of the accused and accused lead him to his house and produced one knife and the same was seized vide seizure mahazar at Ex.P2. He also received the wound certificates of PWs. On 26.4.2007, accused appeared before him along with anticipatory bail. He also recorded the voluntary statement of the accused and accused lead him to his house and produced one knife and the same was seized vide seizure mahazar at Ex.P2. He also received the wound certificates of PWs. 6 and 7 from the hospital and on completion of investigation, submitted the chargesheet against the accused. 21. It is seen that the evidence of PWs. 1 to 4 does not come to the rescue of the prosecution and nothing has been elicited from their evidence to prove the injuries. It is also seen that the author of the wound certificates at Exs.P8 and P9, the doctor has not been examined in the case. Eventhough wound certificates are produced the doctor ought to have been examined to assess the gravity of the injuries suffered by the injured. But that has not been done by the court below. 22. On reappreciation of the entire evidence on record particularly taking into consideration the fact that the doctor who has given the wound certificates has not been examined and also the fact that except the injured persons and PW5 there are no eyewitnesses to the incident and that the injury caused on the person of the injured are not grievous as to cause their death attracting Section 307 of IPC, the same is required to be appreciated in this appeal in proper perspective. The court below has erroneously come to the conclusion that the prosecution has proved the guilt against the accused. It has accepted the theory projected by the prosecution. The judgments relied upon by the learned Senior Counsel for the appellant squarely applies to the case on hand. Hence, I am of the opinion that the judgment passed by the trial court needs to be intervened and the judgment is required to be set aside. 23. Keeping in view the peculiar circumstances of the case, so also the injuries inflicted on the person of the injured and taking into consideration the judgments rendered by the Hon’ble Supreme Court and of this Curt which are referred to by the learned Senior Counsel for the appellant, the sentence passed by the trial court needs to be set aside, in terms of the aforesaid reasons. 24. For the foregoing reasons, the point framed by this court is answered in the negative and the appeal is allowed. 24. For the foregoing reasons, the point framed by this court is answered in the negative and the appeal is allowed. The judgment of conviction and order of sentence dated 22.03.2010 passed by the Presiding Officer, Fast Track Court-IX, Bangalore in S.C.No.1032/2007, convicting the accused-appellant herein for the offence punishable under Section 307 of IPC is hereby setaside. The accused-appellant is acquitted of the offence punishable under Section 307 of IPC. The bail bond shall stand cancelled.