Karnataka High Court
Sri Swamy vs The State Of Karnataka on 29 January, 2014
Author: N.Ananda
Bench: N. Ananda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 29TH DAY OF JANUARY 2014
BEFORE
THE HON'BLE MR.JUSTICE N. ANANDA
CRIMINAL APPEAL No.1047/2006
BETWEEN:
SRI SWAMY
S/O. YALAKKAIAH, 31 YEARS
R/AT BALLENAHALLI VILLAGE
TALUKA: HUNSUR
DISTRICT: MYSORE. ... APPELLANT
(BY SRI VIGHNESHWAR S.SHASTRI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE - 560 001. ... RESPONDENT
(BY SRI B.VISWESWARAIAH, HCGP)
THIS APPEAL IS FILED UNDER SECTION 374(2) CR.P.C.,
AGAINST THE JUDGMENT DATED 28.02.2006, PASSED BY THE
PRINCIPAL SESSIONS JUDGE AT MYSORE, IN S.C.NO.
131/2005, CONVICTING APPELLANT-ACUSED NO.1 FOR AN
OFFENCE PUNISHABLE UNDER SECTION 307 IPC & ETC.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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JUDGMENT
Accused No.1 and his wife (accused No.2) were tried for offences punishable under sections 341 & 307 r/w 34 IPC. The learned trial Judge convicted accused No.1 for an offence punishable under section 307 IPC and acquitted him of an offence punishable under section 341 IPC. The learned trial Judge has acquitted accused No.2 of offences punishable under sections 341 & 307 r/w 34 IPC. Therefore, accused No.1 is before this court.
2. I have heard Sri Vighneshwar S.Shastri, learned counsel for accused No.1 and Sri B.Visweswaraiah, learned HCGP for State.
3. The State has not preferred an appeal against acquittal of accused No.2 of aforestated offences. Therefore, the following points would arise for determination:-
(1) Whether prosecution has proved that on 22.04.2005 at about 7.30 p.m., near the house of PW3-Shivanna in Ballenahalli Village, Hunsur Taluk, Mysore District, accused No.1 stabbed 3 PW2-Venkatesha with a knife with such intention and knowledge by such acts, if he had caused death of PW2, he would have been held guilty of an offence punishable under section 302 IPC, thereby committed an offence punishable under section 307 IPC?
(2) Whether the learned trial Judge has properly appreciated evidence on record?
(3) Whether the impugned judgment calls for interference?
(4) To what order?"
4. The prosecution has relied on the following:-
(i) Motive
(ii) Eye-witness account of injured (PW2-Venkatesha), PW3-Shivanna & PW4-Janaki.
(iii) The medical evidence of PW1-Dr.Basavaraju.
5. It is seen from evidence of PW2 that accused No.1 is the paternal cousin of PW2 and there was no cordiality between them. They were not on talking terms. Therefore, 4 there was motive for accused No.1 to assault PW2. Even otherwise, the case of prosecution rests upon direct evidence. Therefore, presence or absence of motive will not have any consequence on merits of the case.
6. PW2-Venkatesha (injured witness) has deposed; on the date of incident (22.04.2005), PW2, the villagers of Ballenahalli Village, including accused No.1 were celebrating Siddappaji festival; during evening around 5 p.m., some persons were taking food in temple; some boys, including accused No.1 were dancing by playing a tape recorder in temple; PW2 felt that playing tape recorder with high amplitude was disturbing people, who were taking food in temple; therefore, PW2 switched off tape recorder; accused No.1, who was dancing to the tune of tape recorder got annoyed and questioned PW2 that he was troubling accused No.1; PW2 pacified accused No.1. After completing ceremonies in the temple, PW2 was returning to his house and he was passing in front of house of PW3; at that time, accused No.1 confronted PW2 and picked up a quarrel with 5 PW2; accused No.1 stabled on stomach of PW2 with a knife, as a result, omentum came out; PW2 fell down unconscious; on hearing hue and cry raised by PW2, PW3 and other people gathered there; accused No.1 threw knife and ran away from that place; at the first instance, PW2 was treated in General Hospital at Hunsur and later PW2 was shifted to K.R.Hospital at Mysore, wherein PW2 was operated for injury of stomach; when PW2 was being treated in K.R.Hospital at Mysore, his statement was recorded by police and first information was registered against accused 1 & 2 for aforestated offences.
During cross-examination, PW2 has admitted that accused No.1 is his cousin (son of his senior paternal uncle). PW2 has deposed that PW3 is his uncle; the other witnesses namely Madaiah (PW5), one Kullaiah (not examined) and one Channaiah (not examined) are the elders of village, however they are not related to PW2 and accused No.1. 6
During cross-examination of PW2, details of various ceremonies performed in the festival are elicited. In my considered opinion, these details have no bearing on incriminating evidence given by PW2. It has been suggested to PW2 that he was fully drunk, he fell down and suffered injuries. The nature of injuries suffered by PW2 would clearly belie this suggestion.
7. PW2 was injured in the incident of assault. PW2 being the injured witness would be least disposed to falsely implicate accused No.1, leaving aside the real assailant. Therefore, I do not find any reasons to suspect the evidence of PW2.
8. At the relevant time, PW1-Dr.Basavaraju was working as Senior Specialist in General Hospital at Hunsur. PW1 has deposed; he had treated PW2 at about 11.45 p.m., on 22.04.2005 in General Hospital at Hunsur; PW2 had suffered a stab injury measuring 1½ inch x ½ inch and omentum had come out; therefore, PW1 had referred PW2 to 7 K.R.Hospital at Mysore. PW1 has deposed; injury suffered by PW2 was endangerous to his life. PW1 has denied suggestion that injury found on PW2 was self-inflicted.
9. The defence version that PW2 had stabbed on his stomach to concoct a case against accused No.1 cannot be accepted.
10. PW3-Shivanna has deposed; on the date of incident at about 9 p.m., he was sitting in front of his house; PW2 was going towards his house; at that time, accused No.1 confronted PW2; accused No.1 stabbed on stomach of PW2 with a knife and ran away from that place; PW2 fell down; omentum of PW2 had come out from stomach; PW3 tied a cloth on stomach of PW2 and shifted him to General Hospital at Hunsur; clothes of PW2 were stained with blood; on the following day, police inspected the place of incident and seized mud stained with blood from place of incident. 8
During cross-examination, PW3 has denied suggestion that PW2 had not suffered injuries and they had concocted a case against accused No.1.
The evidence of PW3 does not reveal that he had enmity against accused No.1 or he was intimate to PW2. PW3 is an independent witness. Therefore, there are no reasons to discredit the evidence of PW3.
11. PW4-Janaki is the wife of PW2. PW4 is a post- occurrence witness. PW4 has deposed; she learnt about the incident and came to place of incident; PW2 had fallen on ground and omentum had come out; PW4 and other witnesses shifted PW2 to General Hospital at Hunsur; after preliminary treatment, PW2 was shifted to K.R.Hospital at Mysore.
During cross-examination, PW4 has admitted that she had shifted PW2 from Ballenahalli Village at about 9 p.m. Apart from this, nothing has been elicited from PW4 to discredit her evidence.
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12. PW5-Madaiah has given evidence relating to seizure mahazar conducted by the Investigating Officer.
13. At the relevant time, PW6-K.Jayaramu was working as Head Constable in Hunsur Rural Police Station. PW6 has deposed; on receipt of MLC intimation, he had visited K.R.Hospital at Mysore and recorded statement of injured and returned to police station and registered crime against accused.
14. The learned counsel for accused No.1, referring to the contents of statement of PW2 would submit that motive stated in first information is different from what has been deposed by PW2.
15. As already stated, the case on hand rests upon direct evidence. Therefore, even if there is variation in the motive attributed to accused No.1, that would not enure to the benefit of accused No.1.
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16. PW7-Mahadeva is the immediate post-occurrence witness. PW7 had reached place of incident after learning about injuries suffered by PW2.
17. The evidence of PW8-Srinivasa is similar to the evidence of PW7.
18. At the relevant time, PW9-K.B.Vishwanath, was working as Assistant Sub-Inspector of Hunsur Rural Police Station. The evidence of PW9 relates to investigation of the case.
19. On overall appreciation of evidence, I find there was no cordiality between accused No.1 and PW2 though they were cousins. Accused No.1 in an intoxicated state had assaulted PW2 with a knife and caused injuries to PW2, which was endangerous to his life. The evidence of PW2 finds substantial corroboration from medical evidence of PW1 and evidence of PW3. Therefore, prosecution has proved that 11 accused No.1 had assaulted PW2 with a knife and caused injuries to him, which was endangerous to the life of PW2.
20. The next point for consideration is:-
"Whether the act committed by accused No.1 would attract an offence punishable under section 307 IPC?"
21. In order to consider this point, it is necessary to consider the background of incident and events that had preceded the incident. PW2 has deposed; on the date of incident, villagers of Ballenahalli Village, Hunsur Taluk were performing Siddappaji festival; they had sacrificed sheep; they had sumptuous non-vegetarian food; they had consumed arrack; they were in a state of intoxication.
22. It appears, accused No.1 was dancing to the tune of tape recorder. When PW2 stopped playing tape recorder, accused No.1 became angry and stabbed PW2 with a knife. This incident was not pre-meditated. The genesis of occurrence was trivial in nature. In the circumstances, if PW2 had died due to injury inflicted by accused No.1, 12 accused No.1 would not have been held guilty of an offence punishable under section 307 IPC.
23. The evidence of PW1-Dr.Basavaraju would reveal that accused No.1 had stabbed on stomach of PW2 and omentum of PW2 had come out. PW1 has deposed; but for surgical intervention, injury caused to PW2 would have proved fatal to him. The injury inflicted on PW2 was endangerous to his life. Therefore, accused No.1 has committed an offence punishable under section 326 IPC.
24. The learned counsel for accused No.1 would submit that a lenient view may be taken in the matter of sentence.
25. The learned HCGP would submit that accused No.1 had wielded a dangerous weapon on PW2, but for timely surgical intervention, injury would have been fatal to PW2. Therefore, accused No.1 does not deserve any leniency in the matter of sentence.
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26. Accused No.1 was aged about 31 years at the time of incident. He does not bear criminal antecedents. PW2 and accused No.1 are direct cousins. The incident of assault was not pre-meditated, yet fact remains that accused No.1 had assaulted on stomach of PW2 with a knife for trivial reason, without any provocation from PW2. Accused No.1 had to undergo operation in K.R.Hospital at Mysore.
27. Having regard to aggravating and mitigating circumstances, I deem it proper to sentence accused No.1 to undergo simple imprisonment for a period of two years and pay fine of Rs.50,000/-, in default to undergo simple imprisonment for a period of six months for an offence punishable under section 326 IPC. It would be appropriate to pay compensation to PW2 out of the fine amount.
28. In the result, I pass the following:-
ORDER The appeal is accepted in part. The impugned judgment is modified. Accused No.1 is acquitted of an 14 offence punishable under section 307 IPC. Accused No.1 is convicted for an offence punishable under section 326 IPC. Accused No.1 is sentenced to undergo simple imprisonment for a period of two years and pay fine of Rs.50,000/-, in default to undergo simple imprisonment for a period of six months for an offence punishable under section 326 IPC. Out of the fine amount, a sum of Rs.45,000/- shall be paid as compensation to PW2-Venkatesha. The judgment of trial court as it relates to disposal of properties is confirmed.
Sd/-
JUDGE SNN