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2020 DIGILAW 1526 (KAR)

Erappa v. State Of Karnataka

2020-07-30

ASHOK G.NIJAGANNAVAR

body2020
JUDGMENT Ashok G Nijagannavar, J. - This criminal appeal is filed by the appellantaccused No.1 against the Judgment and order of conviction dated 20.10.2011 passed in Sessions Case No.77 of 2011 by the Fast Track Court-II, Bellary. 2. The prosecution case in nutshell is that, the relationship between the complainant-victim and the accused No.1 was strained as the accused No.1 had suspected aboutillicit connection between his wife and the complainant. In this regard the accused No.1 was frequently quarreling with the complainant. On 02.07.2010 night at about 9.30 p.m. when the complainant was going on his motorcycle on Kurugodu-Bellary road near Irrigation Department quarters at Kurugodu old bustand, four persons blocked the way as such the complainant stopped his motorcycle. The said persons were accused Nos.1 to 4. Accused No.1- Erappa was holding an axe, when the complainant enquired as to why they have stopped him, they picked up quarrel for the reason that the complainant is having extra marital relationship with the wife of the accused No.1 and then accused No.1 assaulted him with the axe and the remaining accused instigated to assault. 3. On the complaint filed by the injured victim-Venkatesh, the police have registered the case at Crime No.108 of 2010 of Kurugodu Police Station for the offence punishable under Sections 341, 307, 326 and 504 read with section 34 of IPC. After completion of the investigation the police have submitted the charge sheet against the accused persons for the said offences which was registered as Criminal Case No.505 of 2010. 4. After committal of the case and after the appearance of the accused persons, the Sessions Court framed charges. Since the accused denied the charges leveled against them, the trial was held, prosecution has examined in all 14 witnesses as P.Ws.1 to 14, 09 documents were marked as Ex.Ps-1 to 9 and the material objects were marked as M.Os.1 and 2. 5. On appreciation of the oral and documentary evidence placed on record, the trial Court has held that the prosecution has fai led to prove the charges made against the accused Nos.2 to 4 for the of fences punishable under Sections 307, 341, 326, and 504 read with Section 34 of IPC and has acquitted the accused Nos.2 to 4. 5. On appreciation of the oral and documentary evidence placed on record, the trial Court has held that the prosecution has fai led to prove the charges made against the accused Nos.2 to 4 for the of fences punishable under Sections 307, 341, 326, and 504 read with Section 34 of IPC and has acquitted the accused Nos.2 to 4. But the Sessions Court has convicted the accused No.1- Erappa for the of fences punishable under Sections 341, 307, 326 and 504 of IPC and has sentenced the 1st accused to under go R.I . for a period of 05 years and a fine of Rs.10,000/- for the offence punishable under Section 307 of IPC, in default of payment offine, to under go S.I. for 06 months and further sentenced to undergo R.I. for 05 years and to pay fine of Rs.10,000/- for the of fence punishable under Section 326 of IPC, in default of payment offine, to under go S.I. for 06 months. The accused No.1 was also directed to undergo R.I. for 03 months and to pay fine of Rs.500/- for the offence punishable under Section 341 of IPC, in default of payment of fine, to under go S.I. for 01 month and R.I. for 03 months and a fine of Rs.500/- for the offence punishable under Section 504 of IPC, in default of payment of fine amount, to under go S.I. for 01 month. The trial Court has also directed that 50% of the fine amount shall be given to P.W.1 as a compensation as provided under Section 357 of Cr.P.C. 6. Heard the learned counsel for the appellant-accused No.1 and learned HCGP for the State and perused the impugned Judgment and order of conviction passed by the trial Court. 7. The learned counsel for the appellant strenuously contended that the evidence placed on record does not attract the ingredients of Section 307 of I.P.C. Thus, the conviction under Section 307 of I.P.C. is not sustainable in law. The accused No.1-appellant is falsely implicated in this case because of strained relationship and rivalry. There is a variation and contradictions between the evidence of P.Ws.13 and 14 regarding medical treatment taken by the injured-complainant. There is no convincing evidence to prove the charges leveled against the accused No.1. Thus, he is entitled for acquittal. The accused No.1-appellant is falsely implicated in this case because of strained relationship and rivalry. There is a variation and contradictions between the evidence of P.Ws.13 and 14 regarding medical treatment taken by the injured-complainant. There is no convincing evidence to prove the charges leveled against the accused No.1. Thus, he is entitled for acquittal. Alternatively, the learned counsel for the appellant submitted that the accused No.1-appellant and the complainant-victim are distant relatives and they are the residents of same locality. Now they have amicably settled their dispute as per the advice of the elders. Thus, a lenient view may be taken in imposing the sentence in the event of holding that the charges leveled against the accused No.1 are proved. In support of his contention the learned counsel for the appellant has relied on two decisions. 8. In the case of George Pon Paul v. Kanagalet and others, (2009) AIRSCW 6701 the Hon'blel Apex Court has held as under : "4. The only question that remains is, Whether the custodial sentence as was imposed by the trial Court was adequate or not i.e. confinement till rising of the Court. 5. It appears from record that the fine amount has been deposited and the amount which was directed to be paid to PW-2 has already been paid. 6. Considering this fact and the long passage of time, it would appropriate to restrict the period of sentence to the period already undergone. The appeals stand disposed of." 9. And Another decision, in the case of Surendra Nath Mohanty and another V/s State of Orissa, (1999) SCC(Cri) 998 the Hon'ble Apex Court has held as under : "8. We reiterate that the course adopted in Ram Pujan v. State of U.P. and Mahesh Chand v. State of Rajasthan was not in accordance with law. However, considering the fact that the parties have settled their dispute outside the court and the fact that 10 years have elapsed from the date of the incident and the further fact that the appellants have already undergone 3 months' imprisonment as per the sentence imposed on them, we think that the ends of justice would be met if the sentence of imprisonment is reduced to the period already undergone besides imposing a fine of Rs.5000 on each of the accused under Section 326 read with Section 34 IPC. We reduce the sentence as indicated above and direct that in default of payment of fine, the appellants concerned shall undergo simple imprisonment for a further period of three months. We also refrain from imposing any separate sentence on the other counts of offences. Out of the fine amount, if realized, a sum of Rs.9000 also be paid to the injured as compensation." 10. The leaned HCGP would contend that the evidence of P.W.-1/injured-complainant and other witnesses conf irm that the accused have picked up quarrel with the victim-P.W-1 and have assaulted with an intention to kill him. The evidence of the P.W.-1 goes to show that the accused had motive to commit the alleged of fence. Medical evidence confirms that the accused No.1 has assaulted the complainant with an intention to kill him. The victim had sustained injuries on the vital parts of the body. There are no doubtful circumstances to disbelieve the prosecution case. 11. Having heard the learned counsel for the appellant-accused No.1 and learned HCGP for the respondent-State and on perusal of the impugned Judgment, the point that would arise for consideration is, "Whether the impugned judgment and order of conviction is justi fied?" 12. The first contention of the learned counsel for the appellant is regarding motive. It is submitted that because of the strained relationship and ill-will a false complaint has been lodged against the accused persons. There are circumstances indicate that the victim himself has sustained injuries in the motor vehicle accident and has falsely implicated the accused persons. 13. The first contention of the learned counsel for the appellant is regarding motive. It is submitted that because of the strained relationship and ill-will a false complaint has been lodged against the accused persons. There are circumstances indicate that the victim himself has sustained injuries in the motor vehicle accident and has falsely implicated the accused persons. 13. In a decision reported in the case of Palani V/s State of Tamilnadu, 2019 1 AICLR 432 (S.C.) it is observed as under:- "C. Evidence Act, 1872 - Motive - Eye witness - Where the case of the prosecution is based on the evidence of eye witnesses, the existence or non-existence of motive, sufficiency or insufficiency of motive will not play such a major role as in the case which is based on circumstantial evidence - If the prosecution is able to prove its case or motive, it will be a corroborative piece of evidence; but if the prosecution had not been able to prove its case or motive or the motive suggested is too slender, that will not be a ground to doubt the prosecution case - When other evidence against the accused is clear and cogent as in the present case, absence of motive or insufficiency of motive is of no importance." 14. The present case is based on the evidence of injured victim, under these circumstances, the existence or non existence of motive or sufficiency or insufficient of motive or rivalry between them will not play prominent role as in the case which based on circumstantial evidence. Reliability of Evidence 15. It is the duty of the Court to consider trustworthiness of the evidence on record as the witnesses are the eyes and ears of justice. Thus, it is necessary to ascertain whether the evidence of prosecution is filled with any contradiction, improbabilities and variations to come to the conclusion that these witnesses cannot be relied on to convict the accused, thus, a cursory glance is given to the evidence of the prosecution witnesses. 16. On perusal of the submission made by the learned counsel for the appellant, this Court has gone through the impugned Judgment and order of conviction and prosecution records. It is pertinent to note that the injured-complainant (PW-1) has stated in his complaint about strained relationship between him and accused No.1 as the complainant was frequently talking with his wife. 16. On perusal of the submission made by the learned counsel for the appellant, this Court has gone through the impugned Judgment and order of conviction and prosecution records. It is pertinent to note that the injured-complainant (PW-1) has stated in his complaint about strained relationship between him and accused No.1 as the complainant was frequently talking with his wife. Therefore, by suspecting the conduct of his wife accused No.1 used to quarrel with the complainant. In this regard, the elders and other relatives had also advised and warned him, but the complainant had not stopped speaking with the wife of the accused. According to the prosecution, this is the motive for commission of the of fence. Another ground urged by the prosecution is that, the wife of the accused No.1 had filed an complaint against the complainant- P.W.1 alleging that he has committed rape when she had gone to attend the nature's call and for this reason the accused persons assaulted the complainant. In the instant case, P.W.1-victim has stated in his evidence that the accused No.1 alone has assaulted him with the axe. The blood stained cloths of complainant-victim recovered through Ex.P.2-panchanama and the same has been supported by the P.W.3. Even the spot mahazar and seizure mahazar of the axe is also supported by the P.W.5-Siddappa. P.W.6 has seen the P.W.1 injured with his blood stained shirt at his residence. P.W.7 the brother of P.W.1, P.W.8 the brother-in-law of P.W.1, P.W.9 the independent witness and neighbour are all hearsay witnesses. P.W.10 the mother of P.W.1, she has admitted regarding the advise given to the complainant to stop relationship with the wife of the accused No.1. She had advised P.W.1 not to interact with the wife of accused No.1. P.W.11 is the wife of P.W.1, P.W.12 is the P.S.I . who conducted the investigation and submitted the charge sheet. P.W.13 is the Medical Officer, who has examined the injured-victim in VIMS Hospital and had issued certificate. P.W.14 is the Medical Officer of P.H.C. Kurugodu, who has examined the injuredvictim immediately after the incident and has issued certificate. 17. The learned counsel for the appellant has brought to the notice of the Court regarding the variations in the evidence of P.Ws.13 and 14. It is submitted that after the first-aid-treatment in the P.H.C. Kurugodu, the victim was taken to the VIMS Hospital, Bellary for further treatment. 17. The learned counsel for the appellant has brought to the notice of the Court regarding the variations in the evidence of P.Ws.13 and 14. It is submitted that after the first-aid-treatment in the P.H.C. Kurugodu, the victim was taken to the VIMS Hospital, Bellary for further treatment. Whereas P.W.13 has stated in cross-examination that the injured P.W.1 appeared directly to the Hospital . Thus, there are glaring discrepancies in the evidence between P.Ws.13 and 14. 18. During the course of cross-examination of P.W.1 and other witnesses, the learned defence counsel has made suggestions that because of strained relationship the accused No.1 has been falsely implicated in this case, the said suggestions have been denied. The defense put forth by the learned counsel for the appellant before the trial Court has been disbelieved and it is held that the accused No.1 has committed the of fence under Sections 341, 307, 326 and 504 of I.P.C. 19. On re-appreciation of entire evidence of injured-victim (PW-1) and other witnesses, this Court is of the view that, there is no convincing or clinching evidence to hold that the accused No.1 had definite intention to kill the complainant. As could be seen from the evidence placed on record, on the date of incident the accused No.1 along with his family members namely his father, mother and brother have stopped the complainant who was proceeding on motor cycle on Kurugodu-Bellary road near Irrigation Department quarters and picked up quarrel. Thus, it is evident that, at that point of time, the accused No.1 and his family members had no premeditation and there was no preparation. It is only when the complainant was found on the road they stopped him, then they have picked up quarrel with him. It is not the case of the prosecution that, the accused had preplanned or made conspiracy to go to the house of the complainant with an intention to end his life. But there is ample evidence to show that the 1st accused has assaulted the complainant with dangerous weapon such as axe and has caused grievous injuries thereby he has committed the of fence punishable under Section 326, 341 and 504 of I.P.C. It is submitted that the P.W.1-victim has only lost tip of middle finger and no disability is caused because of the said injury. The P.W.1 is quite healthy and carrying out his stone cutting work. 20. The P.W.1 is quite healthy and carrying out his stone cutting work. 20. On re-appreciation of entire evidence on record, this court is of the view that, on account of strained relationship and there was clash between the 1st accused and the complainant and there was no intention to commit murder or causing grievous injuries to kill him. Accordingly, I pass the following : ORDER The criminal appeal filed by the appellantaccused No.1 is allowed in part. The Judgment and order of conviction passed by the Fast Track Court-II, Bellary against the accused No.1 in Sessions Case No.77 of 2011 in respect of under Section 307 of I.P.C. is set aside and the conviction order and sentence imposed against accused No.1 is modified only in respect of under Sections 326, 341 and 504 of I.P.C. as under: The accused No.1 is sentenced to undergo S.I . for a period of one month for the of fence punishable under Section 326 of I.P.C. and to pay a fine amount of Rs.20,000/-, in default of payment of fine amount he shall undergo S.I. for a period of two months. Further, the accused No.1 is sentenced to undergo S.I. for a period of one month and to pay a fine of Rs.3,000/-for the offence punishable under Section 341 of IPC, in default of payment offine amount he shall undergo S.I. for a period of one month. Further, the accused No.1 is sentenced to undergo S.I . for a period of one month and to pay fine amount of Rs.2,000/- for the offence punishable under Section 504 of I.P.C., in default of payment offine amount he shall undergo S.I. for a period of one month. All these sentences imposed against the accused No.1 shall run concurrently. The period undergone in the Judicial Custody by the appellant-accused No.1 shall be given setoff. It appears from the record that, 50% of the fine amount imposed by the trial Court has been deposited. Thus, accused No.1-appellant shall deposit the balance fine amount within a period of four weeks from the date of this order. Thereafter, 80% of the fine amount shall be released to the injured-complainant (PW-1) on proper identification.