Karnataka High Court
Mahadeva @ Madeva @ Shisthu vs The State Of Karnataka By Its State ... on 3 October, 2012
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 3RD DAY OF OCTOBER 2012
BEFORE
THE HON'BLE MR. JUSTICE K.N.KESHAVANARAYANA
CRIMINAL APPEAL NO.2273 OF 2005 (C)
BETWEEN:
MAHADEVA @ MADEVA @ SHISTHU
SON OF LINGAIAH
32 YEARS
R/O MUTTAPURA HUNDI VILLAGE
IN KOLLEGAL TALUK
DISTRICT CHAMARAJANAGAR
(PRESENTLY SERVING SENTENCE
AT CENTRAL PRISON MYSORE)
... APPELLANT
(BY SRI B ANAND, ADV.)
AND:
THE STATE OF KARNATAKA
BY ITS STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE-560001
... RESPONDENT
(BY SRI K.RAJESH RAI, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374 (2) OF CR.P.C. AGAINST THE JUDGMENT DATED
28.10.2005 PASSED BY THE S.J., CHAMARAJANAGAR, IN
S.C.NO.484/2004 CONVICTING THE APPELLANT-ACCUSED
FOR THE OFFENCE P/U/S 307 OF IPC AND SENTENCING
HIM TO UNDERGO R.I. FOR 5 YEARS AND TO PAY FINE OF
RS.50,000/- I.D. TO UNDERGO R.I. FOR 1 YEAR.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
This appeal by the convicted accused is directed against the judgment of conviction and order of sentence dated 28.10.2005 passed by the District and Sessions Judge, Chamarajanagar in S.C.No.484/2004 convicting the appellant-accused for the offence punishable under Section 307 of IPC and sentencing him to undergo rigorous imprisonment for 5 years for the said offence and also to pay a fine of Rs.50,000/- in default, to undergo rigorous imprisonment for one more year.
2. The case of the prosecution in brief was that PW-1, D.Nirmlala, an Anganawadi worker and resident of G.P.Mallappapuram, Kollegal Town was married to one Kyathaiah of Belakvadi Village about 18 years back and from the said wedlock, she had one son and a daughter. Later differences arouse between the couple and when she was transferred to Uttamballi Village as an Anganwadi worker, she 3 developed illicit relationship with the accused. The accused was a married man and had children. The said illicit relationship went on for over 2 years. Later, since PW-1 had a grown up daughter, she thought that it may not be proper for her to continue the illicit relationship with the accused. Therefore, she told the accused not to continue the relationship and asked him not to visit her house. Annoyed by this, at about 9:00 a.m. on 12.4.2004, when PW-1 was proceeding in front of Dr.Ravikumar Nursing Home in Kollegal, the accused came on a bicycle from behind and threw acid on her face, chest, back and other parts of the body. As a result, she sustained acid burns all over her body. Immediately, she went to the police station in an autorickshaw from where the police shifted her to hospital in Kollegal, where she was treated as inpatient for 8 days, thereafter, she was shifted to K.R.Hospital, Mysore, where she was treated for several months. While PW-1 was taking treatment in the hospital at Kollegal, her statement about the 4 incident came to be recorded, based on which, case was registered and investigation was taken up. During the investigation, it was revealed that PW-8 Raju, X-ray Technician and PW-9 Narayan, receptionist in Dr.Ravikumar's Nursing Home were eyewitnesses to the incident of accused throwing acid on PW-1. During the investigation, the Investigating Officer conducted spot mahazar, broken acid bottle pieces and mud stained with acid were seized from the scene of occurrence. The statements of witnesses were recorded. The accused was apprehended and on completion of the investigation, I.O. laid charge sheet for the offence punishable under Section 307 of IPC. Upon committal of the case, the accused appeared before the learned Sessions Judge and pleaded not guilty for the charge levelled against him, and claimed to be tried.
3. During the trial, the prosecution examined PWs.1 to 11 and got marked Exs.P.1 to P.12 and 5 M.Os.1 to 7. During his examination under Section 313 of Cr.P.C. by the learned Sessions Judge, the appellant-accused denied all the incriminating circumstances appearing against him in the evidence of the prosecution witnesses. The accused did not choose to lead any defence evidence. The defence of the accused was one of total denial and that of false implication. According to his defence, someone on behalf of Kyathaiah, husband of PW-1 had thrown acid on PW-1 and making use of this incident, a false case has been registered against him.
4. The learned Sessions Judge after hearing both sides and on assessment of oral and documentary evidence, by the judgement under appeal held that the prosecution has proved that the accused threw acid on PW-1 at about 9:00 a.m. on 12.4.2004 in front of Dr.Ravikumar's Nursing Home in Kollegal and thereby caused severe acid burns and that the accused committed the said act with an 6 intention that is likely to cause her death, therefore he is guilty of offence punishable under Section 307 of IPC. In that view of the matter, the learned Sessions Judge, convicted the appellant-accused for the offence punishable under Section 307 of IPC and sentenced him to undergo rigorous imprisonment for 5 years and also to pay a fine of Rs.50,000/-. Aggrieved by the said judgement of conviction and order of sentence, the appellant is before this court with this appeal.
5. I have heard Sri.B.Anand, learned counsel appearing for the appellant as well as Sri.K.Rajesh Rai, learned Government Pleader for respondent- State. I have perused the records secured from the court below and the judgement under appeal.
6. The learned counsel for the appellant vehemently contended that the judgment under appeal suffers from perversity and illegality for the reason that the learned Sessions Judge has failed to 7 appreciate various circumstances brought on record which have rendered her testimony highly unreliable. He contended that having regard to the fact that PW-1 was married to one Kyathaiah and from the said wedlock, PW-1 gave birth to 2 children and later she left the company of said Kyathaiah and developed illicit relationship with the accused, possibility of someone on behalf of Kyathaiah throwing acid on PW-1 cannot be ruled out, therefore, the testimony of PW-1 alone could not have been the basis to hold that the accused was responsible for the acid burns sustained by PW-1. He further contended that if for any reason this Court were to affirm the finding of the trial Court regarding guilt of the accused for the offence charged, sentence imposed by the trial Court is harsh and excessive and it is liable to be modified.
7. The learned Government Pleader sought to justify the judgment under appeal and sought for dismissal of the same.
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8. In the facts and circumstances of the case and in the light of the submissions made on both sides, the point that arise for consideration is:-
a) Whether the learned Sessions Judge is justified in convicting the accused for the offence punishable under Section 307 of IPC. If so, whether the order regarding sentence warrants interference by this Court.
9. Perusal of the evidence of PW-1 indicates that about 18 years prior to the incident in question, PW-1 was married to one Kyathaiah and from the said wedlock, she gave birth to one son and a daughter and later she left the company of said Kyathaiah on her transfer to Uttamballi Village and developed illicit relationship with the accused. This part of the evidence of PW-1 is not challenged in the cross examination. Thus, from the unchallenged evidence of PW-1, it is clear that the accused had illicit relationship with PW-1 and the said relationship went on for about 2 years. The evidence of PW-1 that since 9 she had a grown up daughter, she asked the accused to put an end to the illicit relationship and asked him not to come to her house, therefore, the accused was annoyed, has also not been challenged in the cross examination. This part of the evidence of PW-1 clearly establishes that the accused had strong motive for committing the offence alleged. PW-1 in her oral evidence has stated that at about 9:00 a.m. on 12.4.2004, while she was proceeding in front of Dr.Ravikumar's Nursing Home, the accused came on bicycle from behind and threw acid on her face, shoulder, back and hands and went away from the place. The fact that PW-1 sustained acid burns at about 9:00 a.m. on 12.4.2004 is corroborated from the medical records. PW-2, Dr.Chandra in her evidence has stated that at about 9:25 a.m. on 12.4.2004 while she was working as Medical Officer in Government Hospital, Kollegal, PW-1 was brought to the hospital with the history of acid burns at about 9:15 a.m. in front of Dr.Ravikumar's Nursing Home 10 and on examination she noticed acid burns on the right side of the head, eyes, face, neck, shoulders, chest, back and stomach etc. This part of the evidence of PW-2 is not challenged in the cross-examination. Infact the tenor of cross examination of PW-1 indicates that the accused has not disputed that the acid was thrown on PW-1 at about 9:00 a.m. on 12.4.2004 in front of Dr.Ravikumar's Nursing home, as, according to the accused, some person on behalf of Kyathaiah had thrown acid on her. Thus, presence of acid burns on PW-1 has been established. PW-1 being injured witness has categorically stated that it was accused, who came from behind on a bicycle and threw acid on her. Accused is not a stranger to PW-1 and was a known person to PW-1. The incident occurred at about 9:00 a.m., therefore, PW-1 had ample opportunity to identify the assailant and she has identified the accused as the person, who threw acid on her. There is nothing in the cross-examination of PW-1 to discredit her testimony. No doubt, PW-8 11 and 9, who are workers in Dr.Ravikumar's Nursing Home, who are stated to be eyewitnesses have not supported the case of the prosecution during their evidence before the Court. For that reason, evidence of PW-1 cannot be discarded. It is fairly well-settled that the testimony of the victim is not required to be corroborated by other evidences, if the evidence of such injured witness inspires confidence of the court. The sole testimony of such witness can be the basis for recording conviction. In the case on hand, PW-1, who is the victim of acid attack had ample opportunity to identify the assailant and she has identified the accused as assailant who threw acid on her and in the absence of any circumstances which would discredit her testimony, the trial Court is justified in placing reliance on her testimony. The FIR about the incident has been lodged at about 9:30 a.m. in the form of recording her statement in the hospital. As could be seen from the endorsement made on the FIR, the learned Magistrate received the FIR at 3:00 12 p.m. on the same day. Therefore, there has been no delay either in lodging the report or the FIR reaching the jurisdictional Magistrate.
10. I find no reasons for PW-1 falsely implicating the accused. Therefore, the learned Sessions Judge in my opinion is justified in placing reliance on the evidence of PW-1 to come to the conclusion that the accused threw acid on PW-1 and thereby caused acid burns.
11. Having regard to the facts that there was illicit relationship between PW-1 and accused and the incident of throwing acid on PW-1 occurred in the background of PW-1 asking the accused to stop illicit relationship between them, the Court below is justified in drawing inference that the act committed by the accused was with an intention or knowledge likely to cause the death of PW-1. Therefore, the Court below is justified in convicting the accused for the 13 offence punishable under Section 307 of IPC. The findings recorded by the learned Sessions Judge are sound and reasonable having regard to the evidence on record, as such, it does not call for interference by this Court. The offence under Section 307 of IPC is punishable with imprisonment of either description for a term which may be extended to ten years with fine and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life or for a term which may be extended for 10 years with fine.
12. In the case on hand the learned Sessions Judge taking into consideration the facts and circumstances of the case and also facts and circumstances of the accused being a married person having daughter of marriageable age, by showing leniency has sentenced him to undergo rigorous imprisonment of 5 years with a fine of Rs.50,000/-. 14
13. The Division Bench of this Court in the case of State of Karnataka vs. Joseph Rodrigues (Haseena's case) reported in 2005(5) AIR Kar. R 724 (DB) while considering the similar case of acid attack on an unmarried girl, after convicting the accused for offence punishable under Section 307 of IPC sentenced the accused to undergo imprisonment for life. Following the said decision, in yet another case of acid attack in Rajesh @ Raja vs. State of Karnataka in Criminal Appeal No.1481/2006 and connected appeal disposed of on 25.2.2011, another Division Bench of this Court for which I am a member, this Court confirmed the conviction for the offence punishable under Section 307 of IPC and enhanced the sentence of imprisonment of 7 years and compensation of Rs.5,000/- ordered by the trial Court to life imprisonment and to pay compensation of Rs.5,00,000/-.
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14. In the case on hand, the State has not filed an appeal complaining inadequacy of sentence. In the absence of any such appeal by the State and having regard to the facts and circumstances of the case, I am of the considered opinion that the sentence ordered by the trial Court directing the appellant to undergo rigorous imprisonment for 5 years and pay fine of Rs.50,000/- cannot be termed either as harsh or as excessive. Therefore, I find no ground to interfere with judgment of the trial Court.
15. Accordingly, the appeal is dismissed. The judgment of conviction and order of sentence passed by the trial Court is hereby confirmed.
16. The bail and surety bonds executed by the appellant/accused are ordered to be cancelled.
17. The appellant/accused is directed to surrender himself before the trial Court forthwith and 16 upon such surrender, the trial Court shall commit him to prison to serve the sentence. In case of failure to surrender, the trial Court shall secure the presence of the appellant/accused and commit him to the prison for the purpose of serving sentence.
18. The appellant/accused is entitled for the benefit of set-off under Section 428 of Cr.P.C.
Sd/-
JUDGE DM