Karnataka High Court
Stateby Deodurga Police Station vs Girimallappa on 8 September, 2011
Bench: N.K.Patil, C.R.Kumaraswamy
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 8" DAY OF SEPTEMBER, 2011
PRESENT
THE HON'BLE MR.JUSTICE N.K.PATIL
AND
THE HON'BLE MR.JUSTICE C .R. KUMARASWAMY
CRIMINAL APPEAL No.304 OF 2007
ciw
CRIMINAL APPEAL No.2632 OF 2006
IN CRL.A.304/2007
BFflWEEN:
STATE BY DEODURGA
POLICE STATION.
APPELLANT
(BY SMTANURADHA M DESAI, ADDL.. SPP)
AND:
GIRIMALLAPPA,
S/0. KHANDEPPA,
AGED ABOUT 35 YEARS.
RIO. DEVARGUDDA,
DEODURGA TALUK,
RAICHUR DISTRICT.
RESPONDENT
(BY SRI CHAITANYA KUMAR FOR
SRI VEERESH B PATIL. ADVOCATE)
THIS CRL.A IS FILED UNDER SECTION 377 CR.P.C. PRAYING
TO ENHANCE THE SENTENCE IMPOSED BY THE ADI)L. S.J. AND P.O.,
FTC-Ill. RAICHUR. IN S.C.NO.73/2006. DATED 17.11.2006 -
CONVICTING THE RESPONDENT/ACCUSED NO.1 FOR THE OFFENCE
P/U/S. 307 OF IPC ANI) SENTENCING HIM TO UNDERGO
IMPRISONMENT FOR 3 YEARS AND TO PAY FINE OF RS.5,000/- ID.,
TO PAYMENT OF FINE HE SHALL UNDERGO S.I. FOR ONE YEAR.
IN CRL.A.2632!2006
BEIWEEN:
GIRIMALLAPPA.
S/O .KHANDEPPA.
AGED ABOUT 35 YEARS,
R/O. DEVARAGUDL)A.
TALUK: DEVDURGA.
DISTRICT: RAICHUR.
APPELLANT
(BY SRI CHAITANYA KUMAR FOR
SRI. VEERESH B PATIL. ADVOCATE)
ANT):
ThE STATE OF KARNATAKA
BY DEODURGA POLICE STATION.
RESPONDENT
THIS CRL.A IS FILED UNDER SECTION 374 (2) CR.P.C. BY THE
ADVOCATE FOR THE APPELLANT AGAINST THE JUDGMENT DATED
17.11.2006 PASSED BY ThE P.O., vrC-III, RPJCHUR. IN
S.C.NO.73/2006 CONVICTING THE APPELLANT-ACCUSED NO.1 FOR
-
ThE OFFENCE P/U/S.307 OF IPC AND SENTENCING HIM TO
UNDERGO IMPRISONMENT FOR 3 YEARS AND TO PAY FINE OF
RS.5.000/-- I.D.. OF PAYMENT OF FINE HE SHALL UNDERGO S.I. FOR
ONE YEAR.
THESE CRIMINAL APPEALS COMING ON FOR FINAL HEARING
THIS DAY, C.R.KUMARASWAMY J, DELIVERED THE FOLLOWING:
COMMON JUDGMENT
Criminal Appeal No.2632/2006 is filed under
Section 374(2) of Cr.P.C. by the counsel for the
appellant/accused against the judgment dated
17.11.2006 passed by the Presiding Officer. Fast Track
3
Court-UI, Raichur In S.C.No.73/2006 convicting the
appellant/accused for the offences punishable under
Section 307 of Indian Penal Code and sentencing him to
undergo Imprisonment for 3 years and to pay fine of
Rs.5,000/- In default of payment of fine he shall
undergo simple Imprisonment for one year.
2. CrIminal Appeal No.304/2007 is filed under
Section 377 of Cr.P.C. by the State Public Prosecutor for
the State praying that this Court may be pleased to
enhance the sentence Imposed by the Additional
Sessions Judge and Presiding Officer, Fast Track Court
Ill, Raichur In S.C.NO.73/2006 dated 17.11.2006
convicting the respondent-accused for the offence
punishable under Section 307 of Indian Penal Code and
sentencing him to under go Imprisonment for 3 years
and to pay fine of Rs.5,000/- In default of payment of
fine he shall undergo simple Imprisonment for one year.
4
3. These two appeals arise out of
the same
judgment. Therefore, both the cases were heard
together and disposed of by a common jud
gment.
4. The contents of FIR disclose that
Deodurga
Police have registered a case in Crime
No.65/2004
against accused No. 1-Girimallappa S!
Khandeppa.
accused No.2-Khandeppa, SI Dodda Girimaliappa and
accused No.3-Shankarlinga. SI Khandeppa Pujari for
the offences punishable under Section 307
read with 34
of Indian Penal Code on the complaint of
Khanderayagouda.
5. The contents of the complaint is as under:
Complainant is one Khanderayagouda. He
is aged
about 52 years. He is an agriculturist and resident of
Devaragudda. In the village there is one temple by
name Sri. Girimallaiah temple. Khandeppa's father
Dodda Girimallappa was a priest. There
was a dispute
between the Girimallappa and his brother
in connection
5
with performing the rites in the temple. Besides that
there was dispute between them in connection with the
immovable properties for the past two years. In this
regard, Girirnallappa gave verdict in favour of
Khandeppa therefore, there was ill will between accused
No.1, their sons and Girimallappa. In this regard,
Khandeppa and his sons Girirnallappa and
Shankarlinga were threatening that they would kill the
complainant.
6. That on 21.04.2004 at night complainant along
with his wife Paramma and his children were sleeping in
their house on the terrace and at 1.00 a.m. an assault
was made on the cheek of the complainant. He got up
and saw Girimallappa. He was holding a chopper, by
the time he wanted to assault one more blow, his wife
came and children also woke up and came to the
terrace. Below the staircase. Sadri Khandeppa and
Shankarlinga were standing there. They saw them from
6
the street light, when they started running Nandanna
Dore. Khajappa and Hanumanthraya saw them and
then he became unconscious. With an intention to kill
him Khandeppa and Shankarlinga were standing in the
down stairs and Girimallappa came to the terrace and
assaulted the complainant. In fact, assault fell on the
cheek instead of neck consequently. he sustained
bleeding injuries.
7. As stated earlier, occurrence of the offence is
intervening night between 21.04.2004 to 22.04.2004 at
1.00 a.m. The FIR was received by the learned
Magistrate on 22.04.2004 at 1.00 a.m. through
P.C.No.492 of Deodurga Police Station.
8. The contents of the charge sheet reveals that
accused Nos. 1 to 3 were charge sheeted for the offence
punishable under Section 307 read with 34 of Indian
Penal Code. Its contents further discloses that on
21.04.2004 at 1.00 a.m. accused with a common
7
intention and due to previous enmity assaulted PW 1 by
means of a chopper on his cheek consequently, he
sustained grievous injuries. Accused Nos.2 and 3 were
standing below the staircase.
9. PW1 is the injured. He has deposed that he
knows accused Nos. 1 to 3. In their village there is a
temple called Mylarlinga Amatheshwara Temple. There
was dispute in respect of this temple between the
accused and their brothers. To resolve these disputes,
he had acted as a mediator. After making an enquiry,
he decided that it should be partitioned. Decision of the
mediator was not satisfied to the accused.
10. He further deposed that on 21.04.2004, after
taking food, he along with his family members i.e.
charge sheet witnesses 2 to 4 were sleeping on the
terrace. To climb terrace there was staircase but there
was no gate for it. In the mid night at 1 O'clock he
received a blow. He was assaulted by means of a
8
chopper on his cheek. Then he woke up and saw
accused No. 1-Girimallappa. Then the accused got down
through the stairs. Accused Nos.2 and 3 were present
below the stairs. Accused No. I got down from the stairs
and went away. He has sustained injuries on his cheek,
bleeding was present. He sustained fracture, when he
raised cry, charge sheet witnesses 5 to 7 came there.
Since he decided the dispute, accused No.1 with an
intention to kill him has assaulted him on that night.
His son Mallikaijun had been to Deodurga. Then he
was shifted to Government hospital and it was 5.00
a.m., police came and enquired him and recorded his
statement-Ex.P1 and obtained his signature. His
signature is obtained on it. From Government hospital
Deodurga. he was shifted to District hospital, Raichur.
Then they referred him to Victoria Hospital. Bangalore.
There was electricity supply on the terrace on that day,
street lamp provided light on that day. Bed sheet,
9
blood stained towel, banian and underwear were also
shown to him and they were marked as Mos, 1 to 4.
11. This witness was cross-examined by the
learned counsel appearing for the accused in the Court
below. During his cross-examination, he states that his
statement was recorded in the Hospital, what he stated
before the Police was recorded. Though this witness
was cross-examined at length, nothing was elicited in
his cross-examination to disbelieve his evidence.
12. PW2 is the wife of injured. She has deposed
that, she knows the accused for the past two and a half
years. Her husband and herself were sleeping in the
terrace. At 2 O'clock, her husband woke up. Accused
No.1 was holding chopper and he alighted from the
staircase. Accused No.1 has assaulted her husband by
means of chopper on his cheek. After hearing the noise,
charge sheet witness Nos.5 and 7 came there. They
shifted her husband in an auto rickshaw to government
l0
hospital, Deodurga. Police came and enquired her.
There were light on that day. There was a dispute
between the accused and his brothers. Her husband
has decided the dispute. Therefore, accused has
assaulted her husband. Apparel of her husband was
bloodstained and they were marked as Mos. 1 to 4.
13. PW3 Malllkarjun Is the son of the injured. He
has deposed that, on 21.4.2004 at night, his father,
mother and his brother Shivanagowda were sleeping. In
the mid-night at 1 O'clock he heard the sound of his
father. Then he went near his father and found that
there was lnjtuy found on his cheek. He saw accused
No.1 gettIng down from the staircase and he was
holding chopper. Accused Nos.2 and 3 were standing
there. Accused No.1 alIghted from the staircase and all
the three ran away. Police came and enquired and
recorded his statement.
Ii
14. During his cross examination he states that,
he got up. others did not wake up. He saw accused No.1
in the staircase. He has omitted to state before the
police that he brought auto rickshaw and shifted his
father to the Deodurga.
15. PW4 Shivanagouda is the son of injured. He
has deposed that, on 21.4.2004 at night his father, his
mother and his brother and sister were sleeping. At
night 1 O'clock his father raised a cry. At that time, he
saw accused No.1 alighting from the staircase. He was
holding chopper. He has assaulted his father on his
cheek by means of a chopper. When accused No.1 was
alighting from the staircase, below of staircase accused
Nos.2 and 3 were present. All the three went away. Then
at night they brought auto rickshaw. His father was
shifted to government hospital. Deodurga. M.O.5- handy
stone, M.O.6- bloodstained mud and M.O.7- sample
mud were marked.
12
a
16. During his cross examination he states
that,
police have not examined and enqulred him.
17. PW5 Nandanna Is a member of the Pancha
yat.
He deposed that, the accused and his bro
thers were
having a dispute and they requested to con
duct a
panchayat. During the panchayat It was dec
ided that
the property should be divided equally. Accuse
d did not
agree for the same. About 2 years 5 month
s back at
about 1.30 am., he was sleeping in the house. He
heard
the weeping sound from the house of PW1
and he
proceeded there and he saw that PW1 has sus
tained
injuries on his cheek, his clothes were bloods
tained.
During his cross-examination he states that, ther
e was
a dispute between PW1 and Llngaiah's son Qirima
llappa
and proceedings under Section 107 of Cr.P.C.
was
pending. PW5 went to participate In the pan
chayat.
About 3 or 4 years back, panchayat was conduc
ted in a
Samudaya Bhavan by the side of the Amares
hwara
V
13
temple. During panchayat it was decided that,, the
property should be divided between the accused and his
brothers. The decision of the panchayat was not
accepted by the accused. No writing was done in this
respect. For the first time he is deposing before the
Court about the panchayat.
18. PW6 has deposed that, about two years back
he had been to the house of PW 1. He saw the apparel of
PW1. He saw injured and his clothes were bloodstained.
During his cross examination he states that, his eye
sight is not good and he is unable to hear. There was a
dispute between the accused and PW1 in connection
with the Mutt and the land.
19. PW7 is the Dr.Patil Prabhakar. He has
deposed that, on 22.4.2004 at about 7.00 a.m.,
Khanderayagouda has come to his hospital with a
history of assault by Girimallappa. He treated him. He
also sent intimation to Deodurga police. There was 4" of
14
injury on the cheek. There was a deep injury and it was
bleeding. He gave first aid treatment and referred him to
District hospital, Raichur. The Medical Officer. District
HospitaL Raichur referred the injured to the Dental
hospital, Bangalore. There was a certificate issued by
the Bangalore Dental College. On the basis of that he
opined that, there was a fracture on the mandible. It
was a grievous injury. He has issued Ex.P2. The injury
was caused six hours prior to his examination. When a
person was sleeping and if he is assaulted by means of
chopper. injury mentioned in Ex.P2 can result.
20. During his cross examination he states that,
there was a damage to the mandible and there was deep
injury, flesh was seen. Injury to the mandible is not
sufficient to cause death. If a person falls on a sharp
edge, such injury can result. The report of the
Bangalore Dental College indicates that, there was
fracture of mandible. He did not take any Xray from
15
District Hospital, Raichur. The injured brought X-ray on
13.6.2004. According to Ex.P2, the injured has
sustained simple injuries. He also denies the suggestion
put to him that injured has sustained only simple
injuries.
21. PW8 is the witness for spot panchanama. He
is also witness for seizure panchanama. Under seizure
panchanama, bed sheet and apparel injured was seized.
This witness has turned hostile to the side of the
prosecution.
22. PW9 is the witness for seizure of blood.
bloodstained clothes and bed sheets. This witness has
turned hostile to the side of prosecution.
23. PW1O has deposed that, he has affixed his
signature to Ex.P5. This witness has turned hostile to
the side of prosecution. During his cross examination
he states that, on 13.6.2004 accused No.3 led him and
16
S..
police to the place where chopper was thrown. To that
effect, panchanama was drawn.
24. PW1 1 has deposed that, he has affixed his
signature to Ex.P5. His signature was obtained at
Deodurga police station. He has turned hostile to the
side of the prosecution. During his cross examination
he states that, no panchanama was drawn at
Devaragudda Cart track.
25. PW12 has deposed that, he was working as
Assistant Executive Engineer In the GESCOM
Deodurga. He has deposed that, on request of the Circle
Inspector of Police, he has furnished Ex.P6. As per
Ex.P6, that on 21.4.2004 and 22.4.2004 there was
supply of electricity In the night at Devaragudda village.
During his cross-examination he states that, police have
not enquired with regard to log book entry. Line man
was one Sharanappa. He has not enquired Sharanappa.
VI
17
He Is not personally aware whether supply of electricity
was there or not on the date of Incident.
26. PW13 Is the Medical Officer of Government
Dental College, Bangalore. He has deposed that,
Khanderayagowda was referred from District Hospital.
Raichur to Bangalore Dental Hospital. He examined
Khanderayagowda on 27.4.2004 at 9.25 a.m. He
dressed the mandible and Injured has sustained Injury
to the mandible. There was a fracture on the lower jaw.
He referred the patient to the x-ray department.
According to the x-ray report, Khanderayagowda has
sustained fracture on the rIght side mandible. He has
made entry In the register. He has produced x-ray which
was marked as Ex.P8. He has also Issued certificate to
Khanderayagowda.
27. During his cross examination he states that,
based on the clinical examination and also x-ray report,
he states that, Khanderayagowda has sustained
V
18
a.'
fracture. Khanderayagowda was examined by Dr.Mobln.
12 molar teeth wifi be there in the human being. If a
person is assaulted by means of wrist or fall on a
ground, such injury cannot result. Injury Nos.2 and 3
are the corresponding injuries. He has not sent report to
the District hospital, Raichur. He Is unable to tell In
what position the Injured has sustained Injuries. Even
after sustaining Injury. Injured can walk. The injury
sustained by the Injured Is not danger to the human
life.
28. PW14 is the PSI. He has deposed that,
between 7.1.2004 to 7.9.2005 he was working as a PSI
at Deodurga police station. On 22.4.2004 at 7.00 a.m.
he received MLC memo from the government hospital,
Deodurga. Then he proceeded to the hospital. He
recorded the statement of the injured
Khanderayagowda, then he returned to the police
station and regIstered a crime and prepared the HR and
€1
19
transmitted the same. Ex.Pl is the statement of injur
ed.
Ex.P 1(a) is the signature. Again he proceeded to
the
hospital and panche, banian, underwear, towel were
seized under Ex.P4 panchanarna. They were marked as
Mos. 1 to 4. Then he proceeded to Devaragudda and
inspected the spot which was pointed out by
Shivannagowda. The spot was terrace of the
complainant's house. At the spot bed sheet, one smal
l
stone, bloodstained mud were found. He seized the
same. Stone and mud were also bloodstained. He
also
collected the bloodstained stone and sample mud and
were marked as M.Os.5 and 6. He has recorded
the
statements of the charge sheet witness Nos.2, 3, 4 and
6. He has also recorded the voluntary statement of the
accused. Accused No.3, led panchas to Karigudda road
and pointed out the place where the chopper was kept
,
but chopper was not found there. In this regard,
he
drew the panchanama as per Ex.P5. On 13.6.2004
he
received wound certificate of Khanderayagowda from the
20
I.
government hospital, Deodurga. He also received
certificate from the dental surgeon. Further.
Investigation of the case was handed over to Circle
Inspector of police. He subjected accused Nos.2 and 3 to
judicial custody.
29. DurIng his cross examination he states that,
there were houses In and around the house of
complainant. During snmmer persons used to sleep on
the terrace. In Deodurga then were two parties and
there were cases pending under Section 107 of Cr.P.C.
The prosecution wItnesses 1 to 5 and Girimailappa have
Initiated proceedings under Section 107 of Cr.P.C. Then
*as dispute between accused No.2 and his brothers In
connection with the property belonging to Mutt.
30. PW15 was working as Circle Inspector of
Police from 07.10.2002 to 11.09.2005 at Deodurga. He
took up further Investigation of this case. He perused
the Investigation made so far. Accused No.1 was
.1
21
absconding. He laid charge sheet against accused
Nos.1 to 3.
31. During his cross-examination. hestates that
at Deveragudda there is a Mutt by name Amareshwara
temple. Accused No. 1 was the administrator of the
Mutt. In that Mutt, they used to perform prayer. The
Mutt was having immovable property. In this regard,
there was civil dispute. There were two parties in
Devaragudda. 107 Cr.P.C. proceedings were pending
against both the parties.
32. Statement of the accused was recorded.
Accused denied the prosecution allegations.
33. The sum and substance of the finding of the
Trial Court is as under:
34. PW1 has stated that in respect of temple
property there was a dispute between the accused and
their cousin, to resolve the dispute about two and half
2')
years back elders were gathered in the temp
le and
having heard the both the parties a decision was
taken
in the Panchayat, but the accused was not
satisfied
with the decision. PW5 stated that himself, PW1 and
other elders of village in the Panchayat resol
ved the
dispute between the accused and their cousin
for which
accused did not agree. Admittedly. cases were booked
between PW.1 and PW.5 on one side and accused
and
others on the other side under Section 107
of Cr.P.C.
The relationship between the accused and PW1
was not
cordial.
35. The Trial Court has observed at Para-5
that
PWs. 5 and 6 have stated that, on that nigh
t having
heard the noise near the house of PW1, they
went there
and saw injury to the mandible of PW1 and bloodstai
ns
to the clothes of PW 1 They stated that PW 1 was
taken
to Hospital. PW7 stated that he was Senior Specialist in
Deodurga Government hospital, on 22.04.2004 he
23
examined PW1 In the hospital who had come with his
relatives with the history of assault by one Girimallappa
(A-i). He Infonned the Police and noticed 4"Xi/4"
muscle deep cut Injury on the mandible of PW1 with
blood oozing. PW7 also stated that having given first
aid to PW1 sent him to Raichur District Hospital, who
had referred him to Bangalore Dental College Hospital,
from where he received the certificate. On the basis of
which he has given certificate as per Ex.P2 certifying
that mandible of PW1 was fractured and It was grievous
Injury. PW7 also stated that such injury would be
caused by assaulting with a chopper to the person who
had slept facing upwards. PW13 was the Assistant
Dentist In the Government Dental College. Bangalore.
He has stated that on 27.04.2004 he examined PW1,
who was referred by District Hospital Raichur, noticed a
sutured and dressed wound in the mandible of PW1
from left mental foramen to right mandible angle. PW13
had referred PWi to the radiologist from where he got
V
24
report EX.P7. On the basis of which he made an entry
in the register Ex.P7. At Ex.P7-a that the mandible of
PW1 was fractured from last tooth of left side upto the
last tooth of right side. Ex.P8 is the x-ray taken by
radiologist while examining PW 1.
36. The Trial Court has also observed that PW12-
Assistant Executive Engineer has stated that on the
night in between 21.04.2004 and 22.04.2004 there was
supply of electricity to the Devaragudda village.
37. The Trial Court has mentioned in its judgment
at para- 11 that the evidence of PWs 1 to 4 is
corroborating with each other with regard to the
incident in which PW1 suffered injury to mandible.
They have stated that soon after PW 1 suffered assault
he awoke and made cry. they saw accused No.1 in the
terrace. getting down from the staircase holding the
chopper. Accused No.1 was not a stranger to PWs1 to
4, they could easily identify him. Regarding the
25
a
presence of accused No.1 in the terrace, immediately
after PW1 suffered the assault, PWs1 to 4 speaks about
this. The possibifity of PW1 suffering such an injury to
his mandible as suggested by defence cannot be
accepted. The Injury is definitely due to assault with
sharp edged weapon. The circumstances i.e., time and
place chosen by accused No.1 to attempt on PW1 clearly
indicate that he intended to take life of PW1. Non-
examination of Laxml and Lingainma daughters of PWs
1 and 2 is not fatal to the prosecution case. When the
incident occurred in. the mid night, that too in the
terrace of the private house, one cannot expect the
independent witnesses. The discrepancy in the
evidence of PWs1 to 4, with regard to the position of
sleeping of PW1, position of assailant at the time of
assault, places where PWs2 to 4 had slept, are quite
natural since prosecution is focussing its case after two
and half years of the incident Non-marking of blood
stained bed sheet, non-recovery of incriminating article
V
26
chopper on the basis of the voluntary statement of
accused No.3 themselves are not sufficient to disbelieve
the prosecution case. They are not material
discrepancies and Infinnities to take away the entire
prosecution case. Hence, accepting the evidence of
PWs1 to 4, It is held that accused No.1 made an attempt
to cause death of PW1 by assaulting with chopper.
38. The trial Court has held that, accused No.1
was guilty of the offence punishable under Section 307
of the Indian Penal Code. The Trial Court considering
that accused No.1 Is the head of Matadipathy and he
dealt only one blow, he did not repeat the blow. In such
circumstances, lenient view be taken In the matter of
sentencing him. It has come In the evidence that,
accused No.1 is unmarried and he is Matadipathy. It Is
also the prosecution case that, accused No.1 dealt only
one blow with chopper on PW1. There was no previous
conviction as alleged against accused No.1 for similar
27
V
T 0
offence. Having regard to the enmity and ifi-wifi between
PW1 and accused persons, the circumstances under
which accused No.1 committed the offence, PW1 within
a short period, came out of danger and Injury caused to
his mandible was not fatal. Accused No.1 was sentenced
to Imprisonment for three years and to pay a fine of
Rs.5,000/-.
39. Feeling aggrieved by the Judgment of
conviction, the accused No.1 had preferred this appeal
challenging the same. Similarly, feeling aggrieved by the
lesser sentence Imposed by the Court below, the State
has preferred appeal to enhance the sentence of
Imprisonment.
40. We have heard the learned counsel appearing
for the appellant-accused and the learned Additional
State Public Prosecutor for the State. We have perused
the trial Court records.
V
28
41. The learned counsel for the appellant
submitted as under:
There Is contradiction between the evidence of
PWs. 1 to 4. The evidence of PW14 cannot be believe
d.
Ex.P7- Medico Legal Case register was produced
at the
time of evidence. Wound certificate was issued bas
ed on
the report produced by PW13- Dr.H.C.Ramak
rlshna.
Therefore, the evidence of PW7 cannot be belie
ved.
Evidence of PW1 Is not corroborated with the evid
ence
of other witnesses. The chopper has not been seiz
ed.
The first wound certificate has not been produced
and
the Injuty sustained byPWl is only simple Inju
ry. The
Injury sustained by PW1 will not endanger his life.
The
evidence of doctor cannot be believed. Report
Is not
produced.
42. It Is the contention of the learned counsel for
the appellant that, the finding may be altered to Sec
tion
325 or 324 Instead of 307 of the Indian Penal Cod
e,
LI
29
since the offence falls under Section 325 or 324 of the
Indian Penal Code.
43. Learned counsel for the appellant also relied
on the ruling in the case of KESHAVA BHANDARY AND
ANOTEHR Vs. STATE OF KARNATAKA reported in 2001(3)
Kar.L.J.657. Attention of this court was invited to para
4 of the said decision.
"As far as the main charge is
concerned, the appellants' learned
Advocate demonstrates to me from the
evidence of P.W.9 who is the brother of
P.W. 1 that there is a serious dispute
with regard to where exactly the
incident took place. He has relied on
the evidence of three of the neighbours
who have not supported P.W. 1 and it is
his contention that the version of
P.W, 1 that he was assaulted near his
field is absolutely false because there is
positive evidence on record that he was
found lying in front of his house. The
most important challenge that has
30
been projected emanates from the fact
that the weapon M.O. 1 is alleged to
have been seized by the Police
pursuant to voluntary statement made
by accused No.1. What is pointed out
to the Court is that there is a serious
infirmity as far as the prosecution is
concerned because there is no
mahazar which records the voluntary
statement nor is there any mahazar
which records the recovery pursuant
thereto. The Investigating Officer seeks
to say that he has made the relevant
diary entries but this does not conform
to the requirements of law. The Trial
Court rejected the recovery evidence
and rightly so. This Court would have
no option except to confirm that
position. If the recovery evidence goes,
then the most important aspect of the
prosecution is left wide open as a
gapping void insofar as the prosecution
has failed in establishing what exactly
was the weapon of assault. To
compound matters what has happened
31
is that the doctor who had treated the
injured person has not so much as
indicated the nature of gravity of the
injury but on the other hand, he has
even gone to the extent of stating that
the injury 2 could not have been
caused by the weapon M.O. 1. He has
also not indicated the nature of the
main injury on the abdomen and the
medical evidence generally runs
contrary to the oral evidence. Mr. Pinto
has relied on the decision of the
Supreme Court in 1994 Cri.L.J.3848
and a Single Judge decision of this
Court in (1997 Kar.L.J.339) in both of
which cases, the Courts held that if the
oral evidence cannot be reconciled with
the medical evidence a serious doubt is
cast on the credibility of the oral
evidence and the benefit must be
extended to the accused. In this case I
find that it is impossible to reconcile
the evidence of P.Ws. 1 and 9 with the
medical evidence and having regard to
the fact that the medical evidence is
32
inevitably a contemporaneous record
and a doctor has no reason to favour
one or the other party, it would be
hazardous to sustain the conviction
under Section 307 of the Indian Penal
Code. The Additional reasons for this
are because the nature of the injuries
themselves would not bring them
within the ambit of life threatening and
consequently, the application of
Section 307 of the Indian Penal Code
itself was misconceived. A Court is
required to consider however as to
whether the evidence makes out any
lesser offence I have gone through that
exercise but in my considered view.
where the general caliber of the
evidence itself is not good enough to
sustain the conviction, the question of
examining whether any lesser offence
is made out would not arise."
44. Learned Additional State Public Prosecutor
submits as under:
33
The learned Additional State Public Prosecutor
supports the Impugned judgment of conviction, but she
further submits that, the punishment Inflicted on the
accused Is very meager. Accused No.1 aImed at the
neck, but the assault fell on the cheek I.e. on the lower
jaw of PW1. Since accused No.1 assaulted PW1 by
means of chopper, he suffered grievous Injury I.e.
fracture of mandible. PWL has to take treatment at
Government Dental College. Bangalore for considerable
time. The punishment prescribed for the offence
punishable under Section 307 of the Indian Penal Code
Is 10 years or life, whereas, In the instant case,
punishment awarded Is only three years and fine of
Rs.5,000/-. Therefore, the learned Additional State
Public Prosecutor seeks for enhancement of sentence as
well as the fine amount The prosecution mainly relied
on the evIdence of PW1.
RI
34
45. Ex.P2 is the wound certificate. Its contents
reads as under:
Wound of injuries found on the person of
calling himself KHANDERAYA GAUDA S/O
GURUNATH REDDY Age 52 years an inhabitant
of DEVARAGUDDA TQ: DEVADURGA who was
sent with self with others from accompanied by
self with others for report as to certain the nature
of injuries and to have been caused on and to be
due to. Assualt by GIRIMALLAPPA WITH
MACHU: at 1-00 AM.
Identification marks:
1) mole in the back
2) mole in the right hypochardre region.
The injured was first seen by the
undersigned at General Hospital Devadurga on
22-04-2004 and the examination was commenced
at 7-00 AM on the 22-04-2004 when the following
injuries were found-
Incised wound situated in the lower border of
the mandible extending from left mental foramen
to right angle of mouth. On examination, the
35
mandible was grooved along with the line of injury
of size 4"x 0.25" x muscle deep, Red clots, loop
e
present bleeding present. The case returned to
Raichur District Hospital and in turn was
returned to Bangalore. Dental college for needful
Report FRACTURE of mandible body on either side
by DR.H.C RAMAKRISHANA, Asst. Dental
Surgeon, Govt. Dental College Bangalore.
FINAL OPINION-: The above injury is
GREVIOUS in nature and caused by hand and
sharp object.
Age of the INJURY - within 6 hrs.
46. Ex.P7 is the radiologist report. It reads as
under:
X-ray Findings: The OPG radiograph shows
fracture of the mandible with the fracture line
extending from 37 region obliquely to the lowe
r
border of the mandible till as region of 47.
47. Ex.P7(a) is the extract of accident claim
s
register. Its contents reads as under:
36
H/o assault by know persons at his residence
on 22-04-2004 at 1-00 AM patient was reported at
General Hospital Raichur and report on college.
Pollowing Injury are seen:
1) sutured dressed wound at lower border of
mandible extending from left mental forman region
to right angle of mandible.
2) 2 fracture of mandible (body) on eltherslde.
48. It Is the contention of the learned counsel for
the appellant-accused that, the chopper has not been
seized. Therefore, In the absence of chopper It Is not
proper for the trial Court to come to a conclusion that
the offence falls under SectIon 307 of the Indian Penal
Code.
49. Though chopper was not seized, seizure of
chopper Is a corroborative piece of evIdence and Is not a
substantive piece of evidence. In the Instant case, there
Is direct evidence. Therefore, non-seizure of chopper
may not go to the root of the prosecution case.
1/
37
50. The record discloses that, after the occurrence
of the offence. accused No.1 was absconding. After the
commission of the offence, later on he has secured
anticipatory bail from this Court and he led the police
and the panchas to the place where he has thrown the
chopper, but that chopper was not found at the place
where it was thrown. In this case, as stated earlier,
accused absconded after the occurrence of the oflènce.
Therefore, the prosecution was unable to trace the
weapon used for commission of the offence which was
alleged to have been thrown at Deodurga Karigudda
Cart Track. The conduct of accused in absconding after
assaulting the injured, will indicate to some extent of
guilty mind. Therefore, the contention of the learned
counsel for the appellant that. since the weapon used
for commission of offence was not traced, that the
prosecution failed to establish its case has no force.
38
'6
51. It Is the contention of the learned counsel for
the appellant that, the Injured has sustained simple
Injuries. The wound certificate Ex.P2 clearly discloses
that, the injured i.e. Khanderayagowda has sustained
fracture of mandible of the body on the either side.
Doctor gave a final opinion that the said lnjuiy Is
grievous In nature. PW7 Dr.Patfi Prabhakar has also
stated In his evidence that, there was fracture of the
mandible and it was grievous Injury. Though he has
been cross-examined, nothing Is elicited to disbelieve
his evidence.
52. PW13 Is the Medical Officer of Government
Dental College, Bangalore. He has also stated In his
evidence that, he dressed the wound of mandible. He
further states that, PW1 has sustained fracture to the
lower jaw. He also referred the patient to X-ray
department. The X-ray revealed that, PW1 has
sustained fracture on the right side of the mandible. He
39
also made an entry in this regard. He has also produced
the X-ray. When such being the case, the contention of
the learned counsel for the appellant that, PW1 has not
sustained any fracture and injury is of simple nature.
has no force and cannot be accepted.
53. The next point canvassed by the learned
counsel for the appellant is that, the offence may fall
under Section 324 or 325 of the Indian Penal Code. In
the instant case, the incident occurred at 1.00 a.m. on
21.4.2004 when PW1 was sleeping on the terrace of his
house. The time chosen by the accused to assault PW1
is mid night. PW1 and his wife clearly state in their
evidence that, they saw accused holding chopper and
alighting from the staircase. It is also undisputed fact
that, there is enmity between the accused and the
injured. 107 Cr.P.C. proceedings were pending between
both the parties. The essential ingredients of Section
307 of Indian Penal Code are, intention or knowledge
40
relating to commission of murder and the doing of an
act towards it. In the instant case, accused No. 1
assaulted PWI during mid night by means of chopper.
Consequently, he sustained lower jaw fracture. Whether
the offence fails under Section 307 of the Indian Penal
Code or to a minor offence can be inferred from the
intention or knowledge and performing an act in that
direction. In the instant case, accused No.1 went to the
house of PW1 in the mid night armed with chopper and
assaulted him. This fact constitute that accused has
intention to cause death of injured -- Khanderayagowd.
Therefore, the submission of the learned counsel for the
appellant that the offence falls under Section 325 or 324
of the Indian Penal Code is difficult to accept.
54. The trial Court has carefully analysed the
evidence of injured and other witnesses and have come
to a conclusion that accused is guilty of offence
punishable under Section 307 of Indian Penal Code. The
41
'S
finding recorded by the trial Court is sound and prop
er
and it does not call for interference.
55. The State has preferred appeal for
enhancement of the sentence. The learned Addition
al
State Public Prosecutor submitted that, the
Imprisonment Inflicted for the offence punishable und
er
Section 307 of the Indian Penal Code is not
proportionate to the offence committed by the accused.
There is positive evidence to the effect that, there was
intention to cause death of Injured.
56. It is undisputed fact that, there is dispute
between accused No.1 and the PW1. For the offence
under Section 307 of the Indian Penal Code
the
prescribed punishment is 10 years or life, whereas,
in
the Instant case, the learned Sessions Judge
has
awarded punishment of three years imprisonment.
It
appears to us that, the punishment inflicted by
the
learned Sessions Judge is not In proportionate to
the
Ce'
42
offence committed by accused No. 1. Therefore, the
punishment awarded by the learned Sessions Judge has
to be modified.
57. Accordingly, though the punishment
prescribed for the offence under Section 307 of Indian
Penal Code is 10 years or life, the injured has sustained
fracture to the mandible and he has also lost his
chewing capacity, in place of imposing sentence of
imprisonment for life or 10 years, if a tine is imposed
and if the said fine is realized, it may aid to PW1
towards medical expenses, as dental treatment is being
very costly affair. Therefore, we propose to impose fine
instead of imposing a long term sentence of
imprisonment. Accordingly, we feel it is expedient to
enhance sentence of 3 years to five years and impose a
fine of Rs.10.000/-.
In the result, we pass the following
43
ORDER
(i) Criminal Appeal No.2632/2006 filed by the accused No.1 is hereby dismissed.
(ii) Criminal Appeal No.304/2007 filed by the State seeking for enhancement of the sentence is allowed, confirming the impugned judgment of conviction and sentence of imprisonment is enhanced from three years to five years and fine amount of Rs.5,000/- is enhanced to Rs.10,000/-. In default of payment of fine, he shall undergo simple imprisonment for one year.
(iii) If the fine amount is realized, the same shall be paid to PW1-injured.
(iv) Appellant-accused No.1 shall be taken to custody forthwith to serve the sentence of imprisonment.
Ti j 4 :% :th AP/