Karnataka High Court
Yankoba, S/O.Sunagar Nagappa vs The State Of Karnataka on 25 August, 2014
Author: L.Narayana Swamy
Bench: L.Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 25 T H DAY OF AUGUST, 2014
BEFORE
THE HON'BLE MR. JUSTICE L.NARAYANA SWAMY
CRIMINAL APEAL No.2769/2009
BETWEEN:
1. YANKOBA S/O SUNAGAR NAGAPPA,
AGE ABOUT 61 YEARS,
R/O 20 T H WARD, SIRGUPPA,
DIST: BELLARY.
2. S.MALLAIAH S/O YANKOBA,
AGE ABOUT 25 YEARS, Occ:: HAMALI,
R/O 20 T H WARD, SIRGUPPA,
DIST: BELLARY.
3. S.SANNEPPA @ SANNI S/O YANKOBA,
AGE ABOUT 22 YEARS, Occ:: HAMALI,
R/O 20 T H WARD, SIRGUPPA,
DIST: BELLARY.
... APPELLANTS
(BY SRI.AMRE GODA, ADV.)
AND:
THE STATE OF KARNATAKA,
BY PSI, SIRUGUPPA POLICE STATION,
DIST BELLARY,
REPRESENTED BY THE STATE
PUBLIC PROSECUTOR,
DHARWAD - 560001.
...RESPONDENT
(BY SRI.VIJAYAKUMAR MAJAGE, HCGP)
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THIS APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C. BY THE ADVOCATE FOR THE APPELLANTS
SEEKING TO 1) CALL FOR THE ENTIRE RECORDS, 2)
ALLOW THIS CRIMINAL APPEAL BY SETTING ASIDE
THE JUDGMENT AND ORDER OF CONVICTION AND
SENTENCE DATED 23.09.2009 IN S.C.NO.108/08
PASSED BY THE LEARNED PRL. SESSIONS JUDGE AT
BELLARY 3) GRANT SUCH OTHER RELIEF OR
RELIEF'S AS THIS HON'BLE COURT DEEMS FI T IN
THE FACTS AND CIRCUMSTANCES OF THE CASE.
THIS APPEAL COMING ON FOR DICTATING
JUDGMENT, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is filed by the appellants challenging the order passed by the Principal Sessions Judge at Bellary in S.C.No.108/2008 dated 23.09.2009 in which appellants have been convicted for the offences punishable under Sections 323, 326 and 504 r/w Section 34 of Indian Penal Code.
2. The prosecution has examined P.Ws.1 to 10 and marked documents as per Exs.P1 to P6 apart from M.O's 1 to 4. On 12.07.2007, when C.W.1- 3 Holagund Mareppa came to the house of accused No.1 to enquire about the earlier quarrel between accused No.3 and the son of first accused, at that time, accused Nos.1 to 3 and the juvenile offender Lokesh, with a common intention to commit the murder of C.W.1-Mareppa, picked up quarrel with him, abused him in filthy language and assaulted him with hands, kicked him with legs on the chest and also with the common intention to commit murder of C.W.1-Mareppa the juvenile offender who was also present at the spot took out club and assaulted on the head of C.W.1/complainant causing grievous injuries. A case has been registered in Cr.No.113/2007 by the Police. The injured complainant was referred to the General Hospital, Siruguppa for treatment and thereafter he was shifted to VIMS Hospital, Bellary for further treatment. After investigation, Police filed charge sheet against the accused for the said 4 offence and produced before the jurisdictional Magistrate. The trial Court has granted bail to the accused and now the accused persons are on bail. Accused Nos.1 to 3 have not pleaded guilty and they chose to face trial. Ex.P1 is the wound certificate and it is opinion of the Doctor that injuries are grievous in nature and committed by the blunt object. Injured has been referred to the NIMHANS, Bangalore for further treatment. It was found that there was frontal intradural Haematoma, Right frontal linear fracture and base linear fracture. Mahazer has been drawn as per Ex.P2 and the statement of the victim has been recorded. Ex.P4 is the complaint. Accused Nos.1 to 3 have committed offence by using the club and by hand. P.W.3-Yerri Swamy has deposed that, juvenile offender has assaulted on the head of the injured by using club.
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3. P.W.1-doctor has been examined. In support of Ex.P1-wound certificate, he has deposed that, on examination, he found that there was bleeding from nose and mouth and there was a lacerated wound of 10x1/2x1/2 Cms on the right frontal region and right eye. He referred the patient to VIMS Hospital, Bellary. On 10.11.2007 he received the case sheet from VIMS Hospital, Bellary, which showed that injured has suffered head injury due to assault and referred to NIMHANS, Bangalore. It was his opinion that, injuries are grievous in nature and caused by blunt object and the age of the injury is within 12 hours. In his cross-examination, he has deposed that, injury No.1 can be caused if a person falls on the hard surface.
4. P.W.2 is the injured. In his cross- examination and examination-in-chief he has 6 deposed that accused No.1 assaulted on his nose, accused No.2 on his back and accused No.3 on his right ribs and he identified the blood stained cloth. P.W.3 is an eye-witness and he supports the case of the prosecution. He further deposed that, accused No.1 by using the club assaulted on the head of the injured and he suffered bleeding injury. He denied the suggestion that accused Nos.2 and 3 have not committed any offence. He further deposed in his cross-examination that he came to the spot and seen the offence committed by accused Nos.1 to 3. P.W.4 is the wife of the complainant supports the case of the prosecution. P.W.6 is the son of the injured also supports the case of the prosecution. P.W.7 is the Panch witness. P.W.8 is the Head Constable who recorded the statement of the injured from the Hospital. P.Ws.9 and 10 are the Investigating Officers. After completion of the evidence, 7 statement of the accused persons under Section 313 of Cr.P.C. has been recorded. All the accused persons have denied the offences charged against them. The Court by its order dated 23.09.2009 convicted the accused for the said offences.
5. The learned counsel for the appellants submits that as per the complainant himself and also from his evidence, which would clear that juvenile offender has assaulted on his head and accused Nos.1 to 3 have assaulted by using hand and leg and as per the wound certificate and also the evidence of the doctor, it is the offence committed by the juvenile offender resulting in grievous injuries. Hence, accused Nos.1 to 3 have not committed the offences referred to above. In respect of offence committed under Section 34 of IPC, the learned counsel submitted that there is no common intention in committing the offence. 8 In respect of the evidence of the doctor and the wound certificate, the learned counsel submits that, as per the evidence of the victim, he came to the hospital at 10.30 p.m. in the night, whereas the doctor in wound certificate has stated that the age of the injury is within 12 hours. This contradiction is lost sight by the trial Court. In fact the incident stated to have taken place in the morning at 9.30 a.m. The evidence of P.W.1 goes against the prosecution to the extent that injuries were aged 12 hours. Further, by referring the evidence of P.W.6, who is the son of the complainant, at paragraph 4, he deposed that, when the victim was taken to the hospital at 12.00 in the night, there were no doctors and thereafter the injured was shifted to Government Hospital, Bellary. In the next day morning both himself and his mother came back to Siruguppa. The evidence of son of the victim further contradicts the case of 9 the prosecution to the effect that accused have committed the offence at 9.30 p.m. and when the doctor himself is not there, the evidence of the doctor that he treated the injured at 10.30 p.m. is contrary to the evidence of P.W.6. By referring Section 34 of IPC, he submitted that there is no common intention of the accused Nos.1 to 3 to commit the offence. Under these circumstances, the charge has been foisted against the appellants. P.W.6 in his cross-examination has denied the offences stated to have been committed by the accused persons. By referring the evidence of P.W.8, who deposed that there was rift with regard to the monetary transactions between P.W.6 and accused No.2, but no complaint has been made by P.W.6. When such being the case, the offence alleged to have been committed by the appellants as per Section 34 of IPC does not arise for consideration. P.W.8 who is the Head 10 Constable has deposed in his cross-examination that he had not obtained the signatures of the panchas on M.O.No.1. M.O.No.1-club it is available in the village and he collected the signatures from the people around there, denying the suggestion made by the defence that not having drawn the Mahazar in front of the witnesses. P.W.10 who is the PSI and Investigating Officer in his cross-examination, he deposed that he has not forwarded blood stained cloth for the purpose of identification to FSL and he has not obtained signatures on the panchanama.
6. The learned counsel for the respondent- State supports the order passed by the trial Court. In support of his submission, he referred the statement of the accused and also the complainant. As per the complaint, it is the 11 accused Nos.1 to 4 have committed offence with common intention and if it is the offence committed and all the persons who have involved are liable for punishment. The victim went to the house of accused No.1 to enquiry about the quarrel between accused No.3 and his son P.W.6, at that time, accused Nos.1 to 4 committed the said offences causing grievous injuries, which resulted fracture to frontal bone, for which the offence under Section 307 has been put against accused Nos.1 to 3. In support of the injury, the wound certificate has been produced and it is marked as Ex.P1. In support of the same, P.W.1- doctor has been examined. The evidence of P.W.1 corroborates the Ex.P1-wound certificate. Under these circumstances, the minor lapses in the evidence cannot be highlighted for the purpose of interference in the order. P.W.2 is the complainant. P.Ws.3 and 4 supports the case of 12 the prosecution. P.W.5 is the pancha of the spot mahazar for seizure of M.O.1. P.W.6 is the son of the injured and minor discrepancies in his evidence cannot be taken into account for interference.
7. The learned counsel also referred the evidence of P.W.8 who is the Head Constable and who recorded the statement of the injured in the hospital. This evidence definitely goes against the accused persons. The injuries sustained on the victim and the evidence of the doctor which is the material evidence for prosecution and evidence of P.W.8-Head Constable who in his chief- examination himself has deposed that he went to the hospital and recorded the statement of the injured. This evidence which supports the case of the prosecution and it is submitted that the prosecution has proved the case and accordingly, 13 the Court below has sentenced the accused for the said offences.
8. The learned counsel made submission in respect of Section 34 of Indian Penal Code that, as long as the common intention is proved accused cannot escape punishment.
9. I have heard both the counsel and gone through the materials placed before me.
10. As per the complaint and the evidence of P.W.1-doctor and P.W.2-injured, it goes concurrently and supports the case of the prosecution. The injured has suffered fracture of frontal bone which is grievous in nature. The injured was shifted to VIMS, Bellary for treatment and for further treatment he was referred to NIMHANS Hospital, Bangalore. P.W.1 in his chief- examination has deposed that at the time of treatment, injured was semi conscious. These 14 materials, more particularly, the evidence of P.Ws.1 to 3 and Ex.P1-wound certificate and the evidence of P.W.8-Head Constable supports the case of the prosecution. When the injured himself has deposed that he has suffered injuries by virtue of the criminal act on the part of accused, nothing is there to disprove the same. Though P.W.6 the son of the injured has deposed in paragraph 4 that there were no doctors at the Government Hospital cannot be taken into account in the light of the wound certificate and also the evidence of P.W.1.
11. As per the evidence P.W.6 there was financial transaction between the accused with P.W.6 and he was also assaulted by the accused persons. He is literate and he had not made complaint against the appellants. It further establishes on the basis of the evidence of P.W.6 15 that financial transaction between two persons and accused persons having committed the offence. When such being the case, the ingredients of Section 34 that when the criminal act is done by several persons in furtherance of the common intention does not arise in this matter. As per the evidence of P.W.2 and Ex.P4 complaint, it is the juvenile offender who assaulted on the head of the injured by using the club. Except this evidence, nothing is available for the prosecution to the extent that accused Nos.1 to 3 have used the club or any weapon for committing the offence on the victim on his head. Under these circumstances, the common intention as required under Section 34 of Indian Penal Code has not been established by the prosecution. If any person has to be punished for the grievous injuries, it attracts offence under Section 326 and it doe s not attract offence under Section 307 of IPC. For the purpose 16 of Section 326, it is only the juvenile offender who has committed the offence and it is supported by the evidence of P.W.1-doctor and P.W.2 the injured during. Under these circumstances, I hold that the trial Court has not examined the case of the prosecution for the purpose of offence under Section 326 of Indian Penal Code. Hence, the evidence and the materials available goes to prove that accused No.1 to 3 and the injuries suffered by virtue of their act, it may fall under Section 323 of Indian Penal Code and the offence committed by the juvenile offender falls under Section 326 of Indian Penal Code. Under these circumstances, I pass the following:
ORDER Accused Nos.1 to 3 have been acquitted for the offence punishable under Sections 326 r/w Section 34 of Indian Penal Code and convicted for 17 the offences punishable under Section 323 and also 504 of Indian Penal Code.
The injured has suffered grievous injuries by the juvenile offender and the entire incident has taken place at the instance of accused No.1 the father of the juvenile offender and he has been supported by accused Nos.2 to 4. The injured has suffered grievous injuries as per the evidence of the doctor. Initially he was treated at the Government Hospital, Siruguppa and thereafter he was shifted to VIMS, Bellary and for further treatment, he was referred to NIMHANS Hospital, Bangalore and this has to be compensated properly in the ends of justice. In order to render justice, Section 357 of Cr.P.C. which enables the Court to pass an order for payment of compensation.18
Therefore, the accused persons are directed to pay the compensation of Rs.50,000/- to the victim. The appellants are directed to deposit the compensation amount in the High Court Registry and furnish the acknowledgement for having deposited the same. The learned Government Pleader is directed to intimate the same to the victim.
Accordingly, the appeal is allowed in part.
SD/-
JUDGE MBS/-