Karnataka High Court
The State -Psi vs Sri Rakesh A Loy D Silva on 23 January, 2023
Author: B.Veerappa
Bench: B.Veerappa
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CRL.A No. 1504 of 2016
C/W CRL.A No. 125 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JANUARY, 2023
PRESENT
THE HON'BLE MR. JUSTICE B.VEERAPPA
AND
THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA
CRIMINAL APPEAL NO.1504 OF 2016
C/W
CRIMINAL APPEAL NO.125 OF 2017
IN CRL. A. NO.1504 OF 2016
BETWEEN:
SRI RAKESH A. LOY D'SILVA
S/O. HILARY DSILVA,
AGED ABOUT 36 YEARS,
R/AT. ST. JOSEPH NAGAR,
KANKANADY, VELENCIA,
MANGALURU, D.K. - 575 002. ... APPELLANT
(BY SRI SUYOG HERELE E., ADVOCATE)
Digitally signed AND:
by MALATESH
KC THE STATE OF KARNATAKA
Location: High THROUGH SUB-INSPECTOR,
Court of SOUTH POLICE STATION,
Karnataka MANGALURU,
REP. BY THE STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE - 560 001. ... RESPONDENT
(BY SRI VIJAY KUMAR MAJAGE, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C. BY THE ADVOCATE FOR THE APPELLANT PRAYING THAT THIS
HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE JUDGMENT
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CRL.A No. 1504 of 2016
C/W CRL.A No. 125 of 2017
AND ORDER DATED 04.08.2016 AND SENTENCE DATED 05.08.2016
PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, D.K.,
MANGALURU IN SESSIONS CASE NO.4/2014 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 326 OF IPC.
IN CRL. A. NO.125 OF 2017
BETWEEN
THE STATE - PSI,
MANGALURU SOUTH POLICE STATION,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU - 560 001. ... APPELLANT
(BY SRI VIJAY KUMAR MAJAGE, ADDL. SPP)
AND:
SRI RAKESH A. LOY D'SILVA
S/O. HILARY D'SILVA,
AGED 37 YEARS,
R/AT SAINT JOSEPH NAGAR,
KANKANADY, VALENCIA,
MANGALURU - 575 002. ... RESPONDENT
(BY SRI SUYOG HERELE E., ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND
(3) CR.P.C. BY THE STATE P.P. FOR THE STATE PRAYING THAT THIS
HON'BLE COURT MAY BE PLEASED TO GRANT LEAVE TO APPEAL
AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED
4.08.2016 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS
JUDGE, D.K. MANGALURU IN SESSIONS CASE NO.4/2014 -
ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S
504 AND 307 OF IPC.
THESE CRIMINAL APPEALS COMING ON FOR FINAL HEARING
THIS DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:-
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CRL.A No. 1504 of 2016
C/W CRL.A No. 125 of 2017
JUDGMENT
The accused/appellant has filed the present criminal appeal against the impugned judgment of conviction 04/08/2016 and order of sentence dated 05/08/2016 passed in S.C.No.4/2014 on the file of the Principal District and Sessions Judge, Dakshina Kannada, Mangaluru, convicting the accused and sentencing to undergo imprisonment for a period of four years with fine of Rs.30,000/- for the offence punishable under Section 326 of the Indian Penal Code.
2. The State has filed Criminal Appeal No.125/2017 challenging the acquittal of the accused for the offence punishable under Sections 504 and 307 of IPC.
3. The jurisdictional police based on the statement made by injured Eric Alvares alleging that on 19/06/2013 at about 9.15 p.m., the accused abused the complainant and threatened to kill the complainant when the complainant demanded refund of hand loan of Rs.3,000/- at Crescent Ground of St. Joseph Nagar. The accused -4- CRL.A No. 1504 of 2016 C/W CRL.A No. 125 of 2017 suddenly abused and stabbed with M.O.1 to abdomen. Thereby, caused grievous injuries and thereafter, he went in autorickshaw for Father Muller's Hospital, Mangaluru. Based on the said complaint, the jurisdictional police registered a case in Crime No.151/2013 for the offences punishable under Sections 326, 504 and 307 of IPC.
4. Investigating Officer during the investigation, seized M.O.1-knife and other three material objects M.O.2- blue color Barmuda Chaddi, M.O.3-white/brown color Nicker, M.O.4-Baniyan and recorded the statement of the witnesses and drawn the mahazar in the presence of pancha witnesses.
5. After the investigation, the Investigating Officer filed charge-sheet against the accused. Since the matter was triable by the learned Sessions Judge, the matter was referred to the Sessions Court, Mangaluru. After committal of the matter, the learned Sessions Judge secured the presence of the accused, framed the charges on 01.06.2015 for the offences punishable under the -5- CRL.A No. 1504 of 2016 C/W CRL.A No. 125 of 2017 provisions of Sections 504, 326 and 307 of the IPC against the accused, read over and explained it to the accused in the language known to him, who denied the charges and pleaded not guilty and claimed to be tried.
6. In order to prove the case, the prosecution has examined in all 09 witnesses as PWs.1 to 9 and marked the documents as Exs.P.1 to P.15 and Material Objects M.Os.1 to 4. After completion of the evidence of prosecution witnesses, the statement of the accused as contemplated under Section 313 of the Code of Criminal Procedure was recorded. The accused denied all the incriminating circumstances and did not lead any evidence.
7. Based on the aforesaid pleadings, the learned Sessions Judge has framed the following points for consideration:
"1. Whether the prosecution proves beyond all reasonable doubts that on 19.06.2013, at about 09.15 p.m., at Valencia, Cresent Ground of St. Joseph Nagar, accused abused CW.1 Sri.Eric Alvares in filthy language and -6- CRL.A No. 1504 of 2016 C/W CRL.A No. 125 of 2017 committed the offence punishable under Section 504 of Indian Penal Code?
2. Whether the prosecution further proves beyond all reasonable doubts that on the above said date, time and place, the accused voluntarily caused grievous hurt to CW.1 by knife, which is likely to cause death and thereby committed the offence punishable under Section 326 of India Penal Code?
3. Whether the prosecution further proves beyond all reasonable doubts that on the above said date, time and place, the accused with an intention to kill CW.1 Sri. Eric Alvares caused grievous injury and thereby committed the offence punishable under Section 307 of Indian Penal Code?"
8. After considering both oral and documentary evidence on record, the learned Sessions Judge, recorded a finding that the prosecution has failed to prove beyond reasonable doubt that on 19.06.2013 at about 9.15 p.m. at Valencia, Cresent Ground of St.Joseph Nagar, the accused abused the injured/C.W.1-Eric Alvares in filthy language and committed the offence punishable under Section 504 of the IPC and further recorded a finding that -7- CRL.A No. 1504 of 2016 C/W CRL.A No. 125 of 2017 the prosecution proved beyond reasonable doubt that on 19.06.2013 at about 9.15 p.m. the accused voluntarily caused grievous hurt to CW.1/Eric Alvares by M.O.1 knife, which is likely to cause the death and thereby, committed the offence punishable under Section 326 of IPC. The learned Sessions Judge further recorded a finding that the prosecution has failed to prove beyond reasonable doubt that the accused had intention to kill C.W.1/ Eric Alvares caused grievous injuries and thereby, committed the offence punishable under Section 307 of IPC. Accordingly, by the impugned judgment of conviction and order of sentence, convicted the accused only for the offences punishable under the provisions Section 326 of IPC for a period of four years with fine of Rs.30,000/- with default clause and acquitted the accused for the offences punishable under Sections 504 and 307 of IPC. Hence, the accused has filed Crl. Appeal No.1504/2016 challenging the conviction order made by the learned Sessions Judge for the offence punishable under Section 326 of IPC and the State Government has filed Crl. A. No.125/2017 -8- CRL.A No. 1504 of 2016 C/W CRL.A No. 125 of 2017 acquitting the accused for the offence punishable under Sections 504 and 307 of IPC.
9. We have heard the learned counsel for the parties.
10. Sri. Suyog E. Herele, learned counsel for the appellant/accused contended that impugned judgment of conviction and order of sentence passed by the learned Sessions Court for the offence punishable under Section 326 of IPC for a period of four years is erroneous and contrary to law which cannot be sustained and is liable to be set-aside. Learned counsel would contend that learned Sessions Judge proceeded to convict the accused for the offence punishable under Section 326 of IPC without appreciating the oral and documentary evidence on record which does not corroborate with the evidence of the prosecution witnesses to convict the accused. He further contended that the grievous injuries as deposed by the doctor does not come in the purview of Section 320 of IPC i.e., grievous hurt and victim himself has not been -9- CRL.A No. 1504 of 2016 C/W CRL.A No. 125 of 2017 examined before the Court below. In the absence of the said evidence, conviction based on the irrelevant material on record is illegal and cannot be sustained. He further contended that the evidence of P.Ws.5 to 7 material witnesses to the prosecution have turned hostile to the case of the prosecution and the learned Sessions Judge failed to notice that the prosecution has failed to prove beyond reasonable doubt and there is inconsistency with the evidence of the prosecution witnesses, absolutely there is no material to convict the accused either under the provisions of Sections 326 or 504 or 307 of IPC. Thereby, the learned Sessions Judge rightly acquitted the accused for the offence punishable under Sections 504 and 307 of the IPC ought not to have convicted the accused for the offence punishable under Section 326 of IPC. He further contended that the learned Sessions Judge failed to notice that the doctor, in the cross-examination has deposed that if a person in the drunken state falls on a sharp object, there is possibility to sustaining the injuries mentioned in the wound certificate. The same is
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CRL.A No. 1504 of 2016C/W CRL.A No. 125 of 2017 corroborated with other witnesses that the victim was having the habit of consuming alcohol. The said aspect of the matter has not been considered by the Sessions Court. Thereby, sought to set-aside the impugned judgment of conviction by allowing the appeal and dismiss the appeal filed by the State.
11. Per contra, Sri. Vijaykumar Majage, learned Additional State Public Prosecutor for the respondent-State while justifying the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge by convicting the accused for the offence punishable under Section 326 of IPC, would contend that the impugned judgment and order of acquittal passed by the Sessions Court acquitting the accused for the offences punishable under Sections 504 and 307 of IPC is contrary to the material on record and cannot be sustained and is liable to be set-aside. He further contended that the learned Sessions Judge proceeded to acquit the accused for the offence punishable under Sections 504 and 307 of IPC and
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CRL.A No. 1504 of 2016C/W CRL.A No. 125 of 2017 has come to the wrong conclusion, which has resulted in an injustice to the victim.
12. He further contended that the evidence of P.W.1 clearly depicts the motive of the accused to commit the murder of C.W.1. There is clear evidence that the accused ran away from the spot after stabbing with knife when he saw P.W.2 otherwise he would have killed C.W.1. The evidence of doctor-P.W.6 clearly depicts that the injuries sustained by C.W.1 may result in death of C.W.1. He would further contend that the learned Sessions Judge has not appreciated the evidence on record properly and proceeded to acquit the accused for the offence punishable under Sections 504 and 307 of IPC though the accused was convicted for the offence punishable under Section 326 of IPC.
13. He further contended that the medical evidence of Doctor, Ex.P.5-wound certificate clearly depicts that the vertical wound present in the left paramedian region omemtum protruding out was life threatening. Thereby,
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CRL.A No. 1504 of 2016C/W CRL.A No. 125 of 2017 the impugned judgment passed by the Sessions Court has to be set-aside and accused is liable to be convicted for the offence punishable under Sections 504 and 307 of IPC. He would further contend that the learned Sessions Court while framing the charges under the provisions of Sections 326, 504 and 307 of IPC, ought to have framed charges under Section 307 instead of 326 of IPC. Accordingly, he submitted that the accused is liable to be convicted under Sections 504 and 307 of IPC and not under Section 326 of IPC.
14. In view of the rival contentions urged by the learned counsel for the parties, the points that arise for our consideration in the present appeals are:
i. Whether the accused in Crl. A. No.1504/2016 has made out a case to interfere with the impugned judgment of conviction and order of sentence by convicting the accused for imprisonment for a period of four years with
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fine of Rs.30,000/- for the offence punishable under Section 326 of IPC?
ii. Whether the learned Sessions Judge is justified in acquitting the accused for the offence punishable under Sections 504 and 307 of IPC in the peculiar facts and circumstances of the case?
15. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record, including the original records, carefully.
16. This Court being the Appellate Court, in order to re-appreciate the entire materials on record, it is relevant to consider the evidence of prosecution witnesses and the documents relied upon.
i. P.W.1 - Naveen Gibbon, who is eye witness to the incident deposed that he knows the injured/Eric Alvares who died 5 months prior to 09.12.2015 and the
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CRL.A No. 1504 of 2016C/W CRL.A No. 125 of 2017 accused Rakesh in the present case. He deposed that on 19.06.2013 at about 9.15 p.m., after finishing his regular work, he was proceeding on the road towards home in St.Joseph Town. He has seen both C.W.1 and the accused quarrelling as C.W.1 was demanding the refund of loan from the accused. Thereby, the accused abused stating that if the amount is not given, what will you do and thereby, has taken knife from his waist and stabbed to the abdomen of C.W.1., who screamed. At that time, there was a street light. Thereby, he has seen the incident and immediately he went to the spot and the accused threw the knife and ran away. By that time, P.W.2-Wilfred came to the spot and both shifted C.W.1 to the Father Mullar Hospital in an autorickshaw. Accordingly, he identified Ex.P.1-spot mahazar and seizure of M.O.1-Knife and M.O.2 to 4 under Ex.P.2 and supported the case of the prosecution. Nothing has been elicited in the cross- examination. In fact, he denied that there was no quarrel between the victim and the accused on that day and he has not gone there to resolve the dispute and also denied
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CRL.A No. 1504 of 2016C/W CRL.A No. 125 of 2017 that he did not shift the injured to the hospital along with P.W.2 and he specifically stated in the cross-examination that there was quarrel between the accused and the victim and he has seen from 20 to 25 feet. But he has not interfered to resolve the quarrel but he has seen the accused stabbing the victim and the victim fell on the road and specifically stated that he was not aware that the victim was in a habit of consuming alcohol and denied. Thereby, supported the case of the prosecution.
ii. P.W.2-Wilfred deposed on par with P.W.1 and stated on oath that he knows accused and the victim and when the victim was screaming, he went to the spot and he has seen the accused stabbing the victim and when himself and P.W.1 went to the spot, the accused threw M.O.1-knife after stabbing to the abdomen of C.W.1 and ran away. Thereafter, P.W.1 and 2 shifted the victim immediately to the hospital and supported the case of the prosecution. Nothing has been elicited to disbelieve the chief examination that the accused was not involved in stabbing of the victim.
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CRL.A No. 1504 of 2016C/W CRL.A No. 125 of 2017 iii. P.W.3-Jyothi- mother of the victim deposed that she came to know that the accused stabbed her son with M.O.1. Thereafter, after knowing the incident, she went to Father Muller's Hospital and his son had sustained the injury on the stomach. She further stated that she knows the accused as he was residing near her house. In the cross-examination, she deposed that she did not know why the accused stabbed her son.
iv. P.W.4-Anil deposed that he knows C.Ws.1 to 5 and he is not aware about any quarrel between the accused and the victim. Thereby, he turned hostile.
v. P.W.5-Gretty deposed that he knows the accused and C.Ws.1 to 4 and C.W.6 but he was not aware about the quarrel and thereby, turned hostile.
vi. P.W.6- Dr.Sebastian Mathias deposed that he is the Resident Medical Officer, Father Muller Medical College Hospital, Mangaluru has been working for more than 16 years. On 19.06.2013 at about 9.40 p.m, she examined the injured-Eric Alvares, aged about 24 years, who was brought by Mrs. Jyothi with a history of assault. On
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CRL.A No. 1504 of 2016C/W CRL.A No. 125 of 2017 examination, she found the injuries 5x2 cm incised vertical wound present in the left paramedian region omemtum (abdominal organs) protruding out. He further deposed that he is of the considered opinion that the injuries are grievous in nature. Accordingly, he issued Ex.P.5-wound certificate and Ex.P.5(a) is his signature and specifically stated "the above said injuries are sufficient to cause the death of injured in ordinary course of nature" and further stated that after examination of knife, he is of the considered opinion that the injuries mentioned in the wound certificate would have been caused by the said knife or similar sharp of weapon. Accordingly, he issued Ex.P.6-report and his signature as Ex.P.6(a) and the knife marked as M.O.1. He has seen the sample seal of the hospital at Ex.P.7 and M.O.1 knife is packed and sealed with the hospital seal. In the cross-examination, he deposed that "Dr.Leo Thauro had treated the injured. Injury No.1 and 2 mentioned in Ex.P.5 correspondence to the same injury. The injured was treated in the hospital as an inpatient for a period of 10 days. It is not true to
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CRL.A No. 1504 of 2016C/W CRL.A No. 125 of 2017 suggest that the injuries mentioned in Ex.P.5 are simple in nature. It is true that if a person in the drunken state falls on a sharp object there is possibility for sustained injuries mentioned in the wound certificate. It is not true to suggest that I had never inspected M.O.1 nor I had given my opinion as per Ex.P.6." and supported the case of the prosecution.
vii. P.W.7-Ashwini Prakash deposed that he knows C.W.1 and accused and both are residing in the adjacent house. When he was playing cricket near St. Joseph ground with my cricket team, at about 9 to 9.30 p.m., he came to know that one person was screaming. Immediately, he went to the spot. At that time, C.W.1 had sustained grievous injuries on the abdomen and he is not aware as to who stabbed him and has not seen the incident and he did not know why it has happened and turned hostile and did not support the case of the prosecution.
viii. P.W.8- Dr.Geethalaxmi, Scientific Officer, FSL officer, deposed that she received information from the
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CRL.A No. 1504 of 2016C/W CRL.A No. 125 of 2017 Investigating Officer on 04.07.2013 along with sealed items to investigate. After investigation of M.O.1 as SI and I-1 Bermuda I-2 Underwear, I3 Baniyan, when all the items were put to analysis, they contained blood stains. Accordingly, she issued Ex.P.11 report and stated that blood stains on the items belongs to 'A' blood group - Serology report at Ex.P.13. In the cross examination, when a suggestion was made that M.O.1 knife did not contain any blood stains, she denied the same and submitted that it is false to suggest that she has given false statement as per Ex.P.11. and thereby, supported the case of the prosecution.
ix. P.W.9-Seetharam deposed that he has been working in the Mangaluru South Police Station as head constable since 3 years from 2011. When he was on the duty on 19.06.2013, he received information from Father Muller Hospital that one person had been stabbed. Immediately, he visited the hospital wherein C.W.1-Eric Alvares was taking treatment. On enquiry, in the presence of doctor, he informed the details as per Ex.P.14.
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CRL.A No. 1504 of 2016C/W CRL.A No. 125 of 2017 Accordingly, a case came to be registered and FIR was filed as per Ex.P.15 and supported the case of the prosecution. Nothing has been elicited to disbelieve his statement in the cross-examination.
17. Based on the aforesaid oral and documentary evidence on record, the learned Sessions Judge proceeded to convict the accused for a period of four years with fine of Rs.30,000/- for the offence punishable under Section 326 of IPC and acquitted the accused for the offence punishable under Sections 304 and 507 of IPC.
18. The complaint as per Ex.P-14 dated 19/06/2013 by the injured victim herein overall is that the accused had borrowed a loan of Rs.3,000/- from the accused on 19/06/2013 at about 9.15 p.m., he was going to a shop near Nandigudda and while returning, near Joseph Nagar, the accused-Rakesh A.Loy D'Silva was coming and as the complainant demanded to return the loan amount, the accused started abusing the complainant and caused grievous injury by stabbing on the abdomen by MO.1-knife
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CRL.A No. 1504 of 2016C/W CRL.A No. 125 of 2017 and thereby the complainant fell down on the spot due to stab injury. At that time, PW.1-Naveen Gibbon who was coming from the opposite direction took the injured to Father Muller's Hospital. The complainant-Eric Alvares submitted that the accused stabbed him with an intention to kill him. Based on the aforesaid complaint, case was registered in Cr.No.151/2013 under the provisions of Sections 326, 504 and 307 of the IPC. Though the case was registered in the year 2013, the matter was posted for evidence in the year 2015. By that time victim met with natural death. Therefore, the prosecution was not able to examine the victim.
19. The gist of the complaint was that, the accused had borrowed Rs.3,000/- from the complainant. When the complainant demanded the amount, the accused not only abused the complainant and also caused grievous injury to the complainant by stabbing him with an intention to kill the complainant and the same was supported by the evidence of PW.1-Naveen Gibbon and PW.2-Wilfred Gib
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CRL.A No. 1504 of 2016C/W CRL.A No. 125 of 2017 who are the eyewitnesses to the incident, specifically stated on oath that they know the complainant-Eric Alvares and Rakesh-accused.
20. In the evidence, it is categorically stated that on 19/06/2013 between 9.00 p.m. and 9.15 p.m., when they were proceeding towards Joseph Nagara, they noticed quarrel between the complainant - Eric Alvares and the accused-Rakesh with regard to repayment of loan amount. When the complainant demanded the accused to return the amount, the accused-Rakesh abused the complainant and stabbed him MO.1-knife. By noticing the quarrel, as there was street light, the eyewitnesses-PWs.1 and 2 went near the spot, but the accused escaped from the spot by showing the knife. The injured fell down on the spot. Both PWs.1 and 2 took the injured claimant-Eric Alvares in an autorickshaw to Father Muller's Hospital. On the basis of the complaint, the police visited the spot next day, drawn mahazar-Ex.P-1 and seized MO.1-kinfe in the presence of the accused, who deposed that seizure of
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CRL.A No. 1504 of 2016C/W CRL.A No. 125 of 2017 blood stained cloth-MO.4 under Ex.P-2 in the presence of PWs.1 and 2.
21. Though there was lengthy cross-examination of PW.1, he has categorically stated that there was a compound wall from Nandigudde to Josephnagara Church. Even though he has stated that he has not interfered with the quarrelling of accused and the victim, he denied the fact that the victim was not admitted to the hospital by them. According to PWs.1 and 2, both are not related to the victim, but they are eyewitnesses to the incident. The evidence of PWs.1 and 2 is neither disputed nor challenged in the cross-examination by the defence counsel or their presence at the time of the incident was not challenged in the cross-examination. Nothing has been brought out from the mouth of PWs.1 and 2 to disbelieve the evidence of PWs.1 and 2 who are the eyewitnesses.
22. In support of the injuries sustained by the victim, PW.3 - Jyothi mother of the victim deposed that she came to know that the accused had stabbed her son
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CRL.A No. 1504 of 2016C/W CRL.A No. 125 of 2017 on the abdomen and he was shifted to Father Muller's Hospital and immediately, she went to the hospital and saw that her son had sustained grievous injuries to the abdomen and she further deposed that she knows the accused who is the neighbour.
23. In order to prove the complaint averments and the eyewitnesses' statement PWs.1 and 2, the prosecution examined PW.6 - Dr. Sebastian Mathias deposed that he was working in Father Muller Hospital since sixteen years. On 19/06/2013, at about 9.40 p.m., he examined a patient by name Eric Alvares, aged about 24 years, who was brought by Mrs.Jyothi - PW.3 mother of the victim with a history of assault. PW.6 specifically deposed that he found the following injuries sustained by the victim:
(i) 5x2 cm. incised vertical wound present in the leftparamedian region omemtum (abdominal orgns) protruding out.
(ii) Traumatic jejunal perforation (small intestine) with peritonitis.
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CRL.A No. 1504 of 2016C/W CRL.A No. 125 of 2017
24. He deposed that the injuries sustained by the victim are "grievous in nature". Accordingly, he issued wound certificate Ex.P-5 and he specifically stated on oath that the said two injuries are sufficient to cause death of the injured in ordinary course of the nature and received a packet containing knife sent through PC 395-Sadananda on 02/08/2013, measuring 32 cm. in length with 19 cm. of width of metal piece which had a sharp edge and a blunt edge with a pointed tip and the knife which had 11 cm. wooden handle. After examination of the knife, PW.6- doctor was of the opinion that the injuries mentioned in the wound certificate could have been caused by the said knife or similar sharp edged weapon. Accordingly, he his report regarding the weapon as per Ex.P-6 and his signature of as per Ex.P-6(a) and the knife is marked as MO.1 and nothing has been elicited in the cross- examination to disbelieve his statement that the said injuries are grievous in nature and sufficient to cause death of injured in the ordinary course of nature. According to him, injury Nos.1 and 2 mentioned in Ex.P-5
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CRL.A No. 1504 of 2016C/W CRL.A No. 125 of 2017 corresponds to the same injury and the injured was treated in the hospital for a period of ten days. He denied that the injuries mentioned in Ex.P-5 are simple in nature. The evidence of the doctor clearly depicts that MO.1 used by the accused stabbing the injured on the abdomen knowing well that it would endanger the life of the victim.
25. PW.8 - Dr. Geethalakshmi examined MOs.1 to 4 issued Ex.P-1 - FSL report and Ex.P-12 the model seal. According to her, the blood stains found on MOs.1 to 4 was of "A" group. Accordingly, she had issued serology report as per Ex.P.11. She denied suggestion in the cross- examination on behalf of the accused that MO.1 does not find blood stains. Nothing has been elicited from her mouth to disbelieve her evidence.
26. In view of the oral evidence of PWs.1 and 2 and the evidence of the doctor PW.6 as well as the scientific evidence of PW.8 which clearly depicts that it is a clear case which falls under Section 307 of the IPC and not under Section 326 of the IPC. It is also not in dispute that
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CRL.A No. 1504 of 2016C/W CRL.A No. 125 of 2017 the injuries sustained by the complainant with MO.1 on the abdomen was intended coupled with the overtact of the accused in execution of the crime thereof. It is not essential that bodily injury may be cause of death should have been implicated. In the present case, the MO.1 knife used by the accused inflicted abdomen of the victim clearly depicts that it causes death as spoken to by the doctor - PW.6. Nothing has been elicited in the cross- examination which clearly depicts that it was with intention and knowledge, thereby the accused are liable to be charged under the provisions of Section 307 of the IPC and cannot be acquired merely because the injuries are inflicted on the abdomen is simple in nature, but the doctor in the present case denied that the injury is not simple in nature, rather both the injuries were grievous in nature and sufficient to case the death of the injured in the ordinary course of nature. Thereby, it is a clear case of Section 307 of IPC and not Section 326 of the IPC and the learned Judge has wrongly proceeded to convict the accused under Section 326 of the IPC instead of Section
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CRL.A No. 1504 of 2016C/W CRL.A No. 125 of 2017 307 of the IPC. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Surender Singh vs. Union of India [2021 SCC online 1135 (three Hon'ble Judges)] at paragraph No.18 held as under:
"18. Before we advert to the factual matrix or gauge the trustworthiness of the witnesses, it will be beneficial to brace ourselves of the case-law qua the essential conditions, requisite for bringing home a conviction under Section 307 IPC. In State of Madhya Pradesh v. Saleem @ Chamaru, this Court, while re-appreciating the true import of Section 307 IPC held as follows:
"12. To justify a conviction under this section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act
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may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof.
13. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, an
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accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt."
(Emphasis Applied)
27. PW.1 deposed that the injured and the accused used to quarrel often and they were distant relatives and he stated that five months prior to his adducing evidence, when the matter was posted for evidence, in the month of June 2015, the victim died. Thereby, it was a grievous hurt as contemplated under the provisions of Section 325 of the IPC. Thus, the contention of learned counsel for the appellant that the appellant-accused had no intention to cause death of the deceased, but it happened in a spur of moment cannot be accepted.
28. It is also not in dispute that the accused had borrowed Rs.3,000/- from the victim Eric Alvares and whenever he demanded to repay the said amount, there used to be quarrel between the accused and Eric Alvares as stated by PW.2. If really the accused had no intention
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CRL.A No. 1504 of 2016C/W CRL.A No. 125 of 2017 to cause the death of the deceased, why was he holding the knife MO.1 on the date of the incident and the same was seized under the spot mahazar Ex.P-1 in the presence of the PW.1 and the same was not explained by the accused nor has taken any defence with regard to holding of the weapon on the date of the incident and has not stated anything in Section 313 Cr.P.C. statement nor offered any explanation. In the absence of the same, an adverse inference has to be drawn against the accused that he caused death intentionally and with full knowledge he stabbed on the abdomen of the victim. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Prahlad vs. State of Rajasthan reported in [(2019) 14 SCC 438], wherein at paragraph No.11, it is held as under:
"11. No explanation is forthcoming from the statement of the accused under Section 313 Cr.P.C. as to when he parted the company of the victim. Also, no explanation is there as to what happened after getting the chocolates for the victim. The silence on the part of the accused, in such a matter
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wherein he is expected to come out with an explanation, leads to an adverse inference against the accused."
29. To attract the provisions of Section 307 of IPC, the prosecution has not proved the basis ingredients of Section 307 of the IPC., which reads as under:
"307. Attempt to murder.- Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned."
30. On careful reading of the said provision, it clearly depicts that whoever does any act with such intention or knowledge, and under such circumstances that, if by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to find; and if hurt is caused to any
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CRL.A No. 1504 of 2016C/W CRL.A No. 125 of 2017 person by such act, the offender shall be liable either to imprisonment for life, or such punishment as is hereinbefore mentioned.
31. Attempt means an endeavour to commit crime or unlawful act. In every crime, there are three stages:
(a) Intention;
(b) Preparation and
(c) Attempt In the third stage i.e., if the attempt is successful, the crime is complete. In the present case, the motive is proved by the evidence of the prosecution witnesses especially the evidence of the injured victim in the complaint Ex.P-14 and eyewitnesses PWs.1 and 2 who deposed that when the complainant demanded to repay the amount of Rs.3,000/-, the unfortunate incident occurred while the accused not only abused the complainant and stabbed on the abdomen with MO.1, that is the motive. Thereby, he prepared with MO.1 and assaulted the victim stabbing on the abdomen with MO.1.
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32. Learned Sessions Judge failed to consider the evidence of the eyewitnesses PWs.1 and 2 who stated on oath that they are the eyewitnesses to the stab injury caused by the accused on the complainant with Mo.1. PW.6-the doctor who examined the victim and specifically stated that the two injuries as stated supra are grievous in nature and that is sufficient to cause the death of the injured in the ordinary course of nature. Thereby, the accused, intentionally or with knowledge to cause the death of the deceased, he has stabbed on the abdomen of the injured. The said material evidence has been ignored by the learned Sessions Judge, thereby proceeded to convict the accused under the provisions of Section 326 of the IPC ignoring the fact that while filing the charge sheet both the offences under the provisions of Section 326, 504 and 307 of the IPC. If the material on record depict that there was no intention on the part of the accused and the incident occurred in a spur of moment caused grievous injuries to the victim at the hands of the accused, there
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CRL.A No. 1504 of 2016C/W CRL.A No. 125 of 2017 would have been offence under the provisions of Section 326 of the IPC, but when the accused had the knowledge that he had to return the amount borrowed from the complainant, naturally the complainant would demand for repayment of the amount. Instead of repaying the amount to the complainant, he prepared MO.1 and abused the complainant and stabbed on the abdomen of the complainant. Thereby, the accused caused grievous injuries with full knowledge that by his act, it may cause death. Thereby, the provision of Section 307 would attract the said aspect has not been construed. Once the learned Sessions Judge proceeded to convict the accused under Section 326 of the IPC, he has ignored the evidence of the doctor PW.6 who has categorically stated that the injuries are grievous in nature and is sufficient to cause the death of the injured in the ordinary course of nature. Thereby, the provisions of Section 307 IPC would apply to the case on hand and not Section 326 of the IPC. Once Section 307 of the IPC attracts, it is a major offence, and there
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CRL.A No. 1504 of 2016C/W CRL.A No. 125 of 2017 was no need for the learned Sessions Judge to proceed to convict the accused under Section 326 of the IPC.
33. Though the Investigating Officer was not examined, the fact remains that the evidence of PWs.1 to 3 except PWs.5 and 7 who turned hostile, all other witnesses supported the case of the prosecution. The material on record clearly deposed that the prosecution proved beyond reasonable doubt that the accused with an intention to kill CW.1 Eric Alvares caused grievous injuries. Thereby committed an offence punishable under Section 307 of the IPC. The said aspect has not been considered by the learned Sessions Judge. Thereby, the learned Judge was not justified convicting the accused under Section 326 of the IPC, instead of punishing him under Section 307 of the IPC. Though the defence was taken that injuries sustained are simple in nature, Ex.P-5 the certificate issued by the doctor was denied by him in the cross-examination. Though it is elicited in the cross- examination of PW.6 that if a person in the drunken state
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CRL.A No. 1504 of 2016C/W CRL.A No. 125 of 2017 falls on the sharp object, there is possibility of causing injuries mentioned in the wound certificate. The fact remains that nothing has been elicited in the evidence of the doctor or Ex.P-5 at the time of examination of the injured except stating that he was under the influence of alcohol. In the absence of any material produced before the Court to show that he fell down and sustained injuries on the hard surface in the presence of the eyewitnesses - PWs.1 and 2 who stood the test, stated that they are the eyewitnesses to the stab injury caused by the accused to the complainant with MO.1. The theory putforth by the witnesses as stated supra cannot be accepted and there is no specific defence in Section 313 Cr.P.C. statement made by the accused. In the absence of the same, the contention of learned counsel for the appellant - complainant while arguing that imposition under Section 326 of the IPC is exorbitant and cannot be accepted and is liable to be convicted under the provisions of Section 307 of the IPC as rightly contended by the learned SPP for the State.
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34. For the reasons stated above, the first point raised in the present appeals is answered in the negative holding that the learned Judge is not justified in convicting the accused under the provisions of Section 326 of the IPC and the accused ought to have convicted under Section 307 of IPC in view of the evidence of PWs.1 and 2 and the evidence of the doctor - PW.6 and recovery of MO.1 and the blood stains proved by the FSL report Ex.P-11 of PW.8 FSL Officer on MO.2 - blur colour barmuda chaddi -1, MO.3 white/brown colour nicker - 1 and MO.4 - banian. Accordingly, the second point is answered partly in the affirmative holding that the prosecution has proved beyond reasonable doubt that the accused, with an intention to kill CW.1 Eric Alvares, caused grievous injuries as stated by the doctor PW.6 that the said injuries are grievous in nature and sufficient to cause the death of the injured in the ordinary course of nature. Thereby we pass the following:
ORDER
i) Criminal Appeal No.1504/2016 filed by accused is hereby dismissed.
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ii) The impugned judgment of conviction dated 04/08/2016 and order of sentence dated 05/08/2016 passed in S.C.No.4/2014 passed by the Principal Sessions Judge, D.K., Mangaluru, convicting the accused for the offence punishable under Section 326 of the Indian Penal Code has to be modified.
iii) Criminal Appeal No.125/2017 filed by the State is hereby allowed.
iv) The impugned judgment and order of acquittal dated 05/08/2016 passed by the learned Sessions Judge, D.K.Mangaluru, acquitting the accused for the offences punishable under Sections 504 and 307 of the Indian Penal Code is hereby set aside.
v) The accused is hereby convicted for the offence punishable under the provisions of Section 504 of the IPC with a fine of Rs.500/- (Rupees five hundred only) for a period of three months and in default of payment of fine, to undergo simple imprisonment for a period of three months and the accused is convicted for the
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CRL.A No. 1504 of 2016C/W CRL.A No. 125 of 2017 offence punishable under Section 307 of the IPC for a period of five years with a fine of Rs.30,000/- (Rupees thirty thousand only) and in default of payment of fine to undergo imprisonment for a period of two years.
vi) Learned Sessions Judge is hereby directed to secure the presence of the accused to undergo punishment imposed by this Court within a period of two months.
vii) In view of the provisions of Section 428 of Cr.P.C., the accused is entitled for the benefit of set off for the period of imprisonment already undergone.
viii) The punishment imposed for the offences punishable under Sections 504 and 307 of the IPC shall run concurrently.
Sd/-
JUDGE Sd/-
JUDGE MBM/S*