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2020 DIGILAW 1230 (KAR)

Ningappa v. State Of Karnataka

2020-06-25

SHIVASHANKAR AMARANNAVAR

body2020
JUDGMENT Shivashankar Amarannavar, J. - This appeal is filed by the appellant-accused challenging the Judgment of conviction and Order of sentence passed by the Fast Track Court, Sirsi in S.C. No.69/2010 dated 30.08.2011. The appellant-accused has been convicted for the offence punishable under Section 326 of IPC and sentenced to undergo simple imprisonment for a period of one year and shall pay fine of Rs.2,000/-. In default of payment of fine, he shall under go further simple imprisonment for a period of two months. The appellant-accused has been acquitted for the offence punishable under Section 307 of IPC. 2. The State has not preferred any appeal against the acquittal of appellant-accused under Section 307 of IPC. 3. The factual matrix of the case is as follows: The complainant-Naveen Kumar-PW.7 was in love with the daughter of accused by name Padma- PW.6. The complainant and said Padma have got registered the marriage on 29.10.2009 in the office of the Sub Registrar, Haliyal. But the accused had not agreed for this marriage and had developed ill will against the complainant. On 27.05.2010, at about 12.00 p.m., the complainant had met his wife Padma in Bangoor Nagar Degree College at Dandeli, where she had come to attend examination. After talking for about five minutes, said Padma went towards her home and the complainant was going near the college library. At that time, the accused came in a two wheeler and touched to the complainant from front side and thereafter got down from the vehicle and removed a sharp edged weapon from the dicky of the vehicle and slashed aiming at the neck of the complainant. At that time, the complainant in an attempt to escape brought his left hand across and fell on his left palm causing blood injury. Thereafter, he went to the local Government Hospital and from there to Military Hospital, Belgaum and then to Command Hospital Pune where it was diagnosed that the tendon of the left palm was cut and middle phalanx of the left little finger bone was broken. Thus, the accused is alleged to have committed the offences punishable under Section 326 and 307 of IPC. 4. The charge for offence punishable under Sections 326 and 307 of IPC was framed. The prosecution examined 8 witnesses i.e. PW.1 to PW.8 and got marked eight documents as Exs.P-1 to P-8 and six material objects as M.Os.1 to 6. Thus, the accused is alleged to have committed the offences punishable under Section 326 and 307 of IPC. 4. The charge for offence punishable under Sections 326 and 307 of IPC was framed. The prosecution examined 8 witnesses i.e. PW.1 to PW.8 and got marked eight documents as Exs.P-1 to P-8 and six material objects as M.Os.1 to 6. The statement of the accused under Section 313 of Cr.P.C. has been recorded. 5. The Trial Court after hearing the arguments on both sides has framed points for consideration and acquitted the appellant-accused for the offence punishable under Section 307 of IPC and convicted him for the offence punishable under Section 326 of IPC. 6. The appellant-accused has challenged the order of conviction and sentence passed by the Trial Court for the offence punishable under Section 326 of IPC on the following grounds: a) The impugned order passed by the Court below is totally illegal against the evidence adduced by the respondent and arbitrary and contrary to the records. b) The case of the prosecution is only depending on the evidence of complainant and his wife who are none other than the son-in-law and daughter of the accused-appellant. c) The whole case of the prosecution is surrounding on the marriage of complainant and his wife for which the appellant has not consented and they got married before the Sub-Registrar and when the wife of the complainant is still staying with appellant-accused and it is only when she has gone to attend the examination, the alleged incident has happened. The entire allegations in the complaint are not trust worthy and the prosecution has miserably failed to prove the same beyond all reasonable doubts. d) The prosecution has not produced X-ray of the fracture injury sustained by the complainant. The doctor stated that the injury sustained by the complainant is lacerated wounds and the same can be caused in other way also. e) The entire case of the prosecution is depending upon the evidence of interested witnesses and the evidence of them has to be considered more cautiously. f) The incident has taken place at the flur of movement and the Court below has came to the conclusion that there is no motive and inspite of it the trial court has convicted the appellant. 7. f) The incident has taken place at the flur of movement and the Court below has came to the conclusion that there is no motive and inspite of it the trial court has convicted the appellant. 7. The learned counsel for the appellant/accused has argued that PW.6 and PW.7 are having ill-will against the appellant-accused as he did not consented for their marriage and therefore their evidence cannot be believed without corroboration by independent witnesses. He further contented that eye witnesses namely PW.1 and PW.3 have not supported the case of the prosecution and therefore, there is no corroboration to the evidence of PW.6 and PW.7. He further contended that the prosecution has not produced X-ray report to show that PW.7 has sustained grievous injury and Ex.P.4 wound certificate has been issued only on the strength of reports issued by Military Hospital, Belgaum and Commond Hospital, Pune. He further contended that there are material contradictions in the evidence of PW.6 and PW.7 and they go to the root of the prosecution case and therefore, their evidence cannot be believed. 8. Per contra, the learned HCGP has argued that the evidence of PW.6 and PW.7 is sufficient to establish that the appellant-accused has committed offence punishable under Section 326 of IPC and trial Court has rightly appreciated the evidence on record and convicted the appellant-accused for the said offence. He supports the reasons assigned by the trial Court. 9. Heard the arguments of the learned counsel appearing for the appellant-accused and learned HCGP for respondent-State. 10. On perusal of the grounds urged and the arguments advanced, the following point arises for my consideration. a) Whether the trial Court has erred in convicting the appellant-accused for the offences punishable under Section 326 of IPC? 11. My answer to the above point is in the affirmative for the following reasons: PW.7 is the injured Naveen Kumar and he is the complainant. PW.6 is Padma and she is the wife of PW.7 Naveen Kumar. PW.6 and PW.7 were having love affair and they married each other without the consent of parents on the either side and their marriage is registered in Sub-Registrar Office, Haliyal. The appellant-accused is the father of PW.6 Padma and father-in-law of PW.7 Naveen Kumar. PW.6 is Padma and she is the wife of PW.7 Naveen Kumar. PW.6 and PW.7 were having love affair and they married each other without the consent of parents on the either side and their marriage is registered in Sub-Registrar Office, Haliyal. The appellant-accused is the father of PW.6 Padma and father-in-law of PW.7 Naveen Kumar. It is averred in the complaint-Ex.P.6 that appellant10 accused was not happy with the marriage of PW.7 with his daughter PW.6 and he was grudging the illwill against PW.7. 12. Pw.7 is a Military person aged 27 years at the time of incident. PW.4-Maruthi is the father of PW.7 Naveen Kumar. In the cross examination of PW.4, it is elicited that accused is a heart patient and he has under gone heart operation and PW.7 is working in Indian Army and he is physically strong. It is further elicited that there was no ill-will between the family of the accused and the family of the PW.4. 13. Pw.1 and PW.3 who are eye witnesses to the incident have not supported the case of prosecution. What remains is the evidence of injured PW.7 and his wife PW.6. There is no corroboration to the evidence of PW.6 and PW.7. Eye witnesses have not supported the case of prosecution. Therefore, the evidence of PW.6 and PW.7 has to be scrutinized carefully. 14. Pw.7 has deposed that on 27.05.2010 when he went to Bangoor Nagar Degree College to meet his wife and at about 12.00 noon after meeting his wife for about 5 minutes his wife saw her father, the accused-appellant who came near the gate went away from the gate and he went towards library and accused-appellant who came on scooty has dashed from his behind and he fell down and thereafter he proceeded towards gate, at that time appellantaccused took Talvar from dicky of scooty and chased PW.7 from behind and when accused tried to assault PW.7 he raised his left hand and sustained injury on the left hand. 15. He further deposed that again accused came to assault him and he escaped from there. Ex.P.6 is the complaint filed by PW.7. In Ex.P.6, it is stated that accused-appellant who came on two wheeler has dashed PW.7 from his front side.PW.7 in his examination in chief has stated that the accused dashed from his back side. Therefore there is a discrepancy in that regard. Ex.P.6 is the complaint filed by PW.7. In Ex.P.6, it is stated that accused-appellant who came on two wheeler has dashed PW.7 from his front side.PW.7 in his examination in chief has stated that the accused dashed from his back side. Therefore there is a discrepancy in that regard. In Ex.P.6, it is stated that appellant-accused took one sharp edged weapon from the dicky of two wheeler. PW.7 in his examination in chief stated that accused took-Talvar from dicky of the scooty. Therefore, there is a discrepancy with regard to weapon used by the accused-appellant. 16. Ex.P.8 is the opinion of the doctor with regard to weapon. On looking to the drawing of the said weapon in Ex.P.8, it appears to be knife. The said weapon is stated to be a Chaku i.e. knife. In the cross examination of PW.7, it is elicited that accusedappellant earlier had given a life threat over telephone and at that time PW.7 was on duty in Leha and he has not filed any complaint to his superiors. The very aspect goes to show that there is a ill-will between PW.7 and the accused and PW.7 was not happy with the attitude of accused-appellant as he has not given consent for his marriage with PW.6. 17. It is elicited in the cross examination of PW.7 that about 15 to 20 persons have witness the incident. The prosecution apart from PW.1 and PW.3 has not chosen to examine other eye witnesses to the incident. 18. Pw.7 in his examination in chief and cross examination has stated that the accused second time came to assault him and he escaped, the same has not been stated in Ex.P.6-complaint. Therefore, there is a discrepancy in that regard. It is also elicited in the cross examination of PW.7 that the accused has not objected for the marriage of PW.7 with PW.6. 19. Therefore, there is a discrepancy in that regard. It is also elicited in the cross examination of PW.7 that the accused has not objected for the marriage of PW.7 with PW.6. 19. Pw.6 has deposed that on 27.05.2010 she had gone to Bangoor Nagar Degree College at Dandeli to write second year BA examination and at about 12.00 noon when she came out after examination, her husband Naveen Kumar came to meet her and they talked for about 5 minutes and her husband went towards library and she went towards gate at that time appellant-accused parked his scooty near gate and thereafter he went on the scooty towards library and touched the scooty to PW.7-Naveen Kumar and took one knife from the dicky and tried to assault PW.7 Naveen Kumar and at that time Naveen Kumar ran out of the gate. PW.6 has not stated that the accused assaulted PW.7 Naveen Kumar with knife but she has only stated that he attempted to assault PW.7. In the cross examination of PW.6, she has stated that Police have not enquired her and she has witness the incident at the distance of 30 mtrs and it is not possible for a person to witness the incident from a distance of 30 mtrs. PW.6 who is the wife of PW.7 and who have married each other without the consent of their parents. Therefore, PW.6 and PW.7 were having grudge against their parents as they have not consented for marriage. Therefore, PW.6 and PW.7 were having grudge against appellant/accused who is the father of PW.6 and father-in-law of PW.7. Therefore, as there are material contradictions and discrepancies in the evidence of PW.6 and PW.7, their evidence cannot be believed without corroboration. PW.1 and PW.3 who are eye witnesses to the incident have not supported the case of the prosecution. 20. The learned counsel for the appellant/accused has argued that the injury certificate is at Ex.P.4 and it has been issued by PW.2 wherein, it is mentioned that injury No.1 is grievous and injury No.2 is simple in nature and it has been issued on the strength of report of Command Hospital, Pune dated 02.08.2010 and the said report and X-ray report of the same has not been produced. PW.2-doctor who examined PW.7 has stated that the injury No.1 stated by him is grievous and injury No.2 is simple in nature and accordingly issued Ex.P-4. PW.2-doctor who examined PW.7 has stated that the injury No.1 stated by him is grievous and injury No.2 is simple in nature and accordingly issued Ex.P-4. The same has not been denied in the cross examination of PW.2. Only it is asked with regard to he examining the X-ray and he has stated that he has not seen the X-ray or X-ray report and he has issued Ex.P-4 on the strength of the opinion given by the Military Hospital, Belgaum and Commond Hospital, Pune. As there is no denial of the statement of PW.2 that injury No.1 is grievous injury but now it cannot be urged that it is not a grievous injury and X-ray report has not been produced. 21. Pw.6 and PW.7 are interested witnesses and there is ill-will between them and the accused has not consented for their marriage. There are discrepancies and contradiction in the evidence of PW.6 and PW.7 and therefore, without any corroboration their evidence cannot be believed. PW.1 and PW.3 were eye witnesses have not supported the case of the prosecution. Therefore, a doubt arises with regard to accused assaulting PW.7 with knife and causing injuries. Benefit of doubt has to be extended to the accused. The trial Court has not appreciated the evidence on record properly. The trial Court has erred in convicting the appellant-accused for the offence punishable under Section 326 of IPC. Therefore, the appeal requires to be allowed. Accordingly, I pass the following: ORDER The appeal is allowed. The judgment of conviction and order of sentence passed by the Fast Track Court, Sirsi in SC No.69/2010 dated 30.08.2011 is set aside. The appellant-accused is acquitted for the offence punishable under Section 326 of IPC. The bail bonds and surety bonds executed by appellant-accused stands cancelled. Refund fine amount if any, paid by the accused-appellant.