Karnataka High Court
Sri Muninanjappa vs State Of Karnataka on 18 December, 2018
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF DECEMBER 2018
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL APPEAL No.644 OF 2010
BETWEEN:
1. Sri.Muninanjappa,
S/o Yellappa,
Aged about 26 years,
Agriculturist,
R/o.Thirumagondanahalli
Village, Attibele Hobli,
Anekal Taluk, Bengaluru District.
2. Sri.Ramakrishna
S/o Yellappa,
Aged about 29 years,
Agriculturist,
R/o.Thirumagondanahalli
Village, Attibele Hobli,
Anekal Taluk,
Bengaluru District. .. Appellants
( By Sri S.Balakrishnan, Advocate )
AND:
State of Karnataka by
Hebbagodi Police Station,
Bengaluru. .. Respondent
( By Sri Divakar Maddur, HCGP )
Crl.A.No.644/2010
2
This Criminal Appeal is filed under Section 374(2) of
Cr.P.C praying to set aside the judgment, conviction and
sentence dated 21.6.2010, in S.C.No.14/2006, passed by the
Prl.Sessions Judge, Bengaluru Rural District, Bengaluru,
convicting the appellant/accused No.1 for the offence
punishable under Section 326 of IPC and accused No.2 for
the offence punishable under Section 326 of IPC r/w. Section
114 of IPC and sentenced them to undergo R.I. for a period
of four years and to pay a sum of `25,000/- each as fine and
in default to undergo R.I. for one year.
This Criminal Appeal having been heard and reserved
for Judgment on 7.12.2018, this day the Court delivered the
following:
JUDGMENT
The present appellants who were accused in S.C.No.14/2006, in the Court of Principal Sessions Judge, Bengaluru Rural District, Bengaluru, (hereinafter for brevity referred to as `trial Court'), have challenged the judgment of conviction dated 21.06.2010, wherein accused No.1-Muninanjappa is convicted for the offence punishable under Section 326 of Indian Penal Code (hereinafter for brevity referred to as `IPC'), and accused No.2 is convicted for the offence punishable under Section 326 read with Section 114 of IPC and Crl.A.No.644/2010 3 sentenced them to undergo rigorous imprisonment for a period of four years and to pay a fine of `25,000/- each, in default of payment of fine, to undergo rigorous imprisonment for a period of one year.
2. In their memorandum of appeal, the appellants have taken the contentions that the trial Court ignored the evidence of PW-1 - the Doctor that the injuries caused to the injured (PW-3- Muniraju) can be caused in a road traffic accident and those injuries can also possible to be caused by using different types of sharp edged weapons. They have also stated in the memorandum of appeal that PW-2 to PW-4 are brothers, as such, they are interested witnesses and that their evidence is not consistent, but, it is contradicting, as such, the trial Court ought not to have relied upon their evidence. It is also stated that the non-examination of material witnesses i.e., Rajappa and Muniyappa was also Crl.A.No.644/2010 4 ignored by the trial Court. Further stating that the trial Court has not appreciated the materials placed before it in their proper perspective, the appellants have prayed for allowing the appeal by setting aside the judgment of conviction and acquitting of the alleged offences.
3. In response to the notice, the learned High Court Government Pleader is representing the respondent-State.
4. Lower Court records were called for and the same are placed before this Court.
5. Heard the arguments from both side. Perused the material placed before this Court, including the memorandum of appeal, impugned judgment and the lower Court records.
6. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court. Crl.A.No.644/2010 5
7. The summary of the case of the prosecution is that due to the ill-will between accused and CW-2 (PW-3), and without there being any scope for sudden or grave provocation, accused No.1 assaulted CW-2 - Muniraju, with chopper on his hand and on account of which, his right palm got severed. Further accused No.1 assaulted on the head of CW-2 -Muniraju with a chopper and caused grievous injuries with an intention to murder him.
8. The allegation against accused No.2 is that he abated the commission of offence by accused No.1 by instigating him to assault by stating that he should not leave him at any cost. The incident in question is stated to have taken place on 18.4.2004, at 7.00 p.m. in Thirumagondanahalli Village, within the limits of respondent-police station.
Crl.A.No.644/20106
9. The charges were framed against the accused for the offence punishable under Section 307 of IPC read with Sections 34 and 114 of IPC. Accused pleaded not guilty.
10. In order to prove the alleged guilt against the accused, the prosecution examined in all six witnesses from PW-1 to PW-6 and got marked documents from Exs.P-1 to P-5 and three material objects as MO-1 to MO-3. Neither defence evidence was led nor any documents were marked from their side as exhibits.
11. After hearing both side and going through the materials placed before it, the trial Court pronounced the judgment of conviction as above said on 21.6.2010 and sentenced the accused for the proven guilt. It is against the judgment of conviction, the accused have preferred this appeal.
Crl.A.No.644/20107
12. From perusal of the material on record and hearing both side, the following points arise for my consideration :
(1) Whether the finding of the Court
below holding accused No.1 guilty of
the offence punishable under Section
326 of IPC and accused No.2 guilty of
the offence punishable under Section
326 read with Section 114 of IPC, is
erroneous and deserve to be set
aside?
(2) Whether the judgment under
consideration warrants any
interference at the hands of this
Court?
13. The prosecution has mainly relied upon the evidence of PW-3 (CW-2) Muniraju, who is said to be the injured in the incident, the evidence of PW-2 Crl.A.No.644/2010 8 Venkataswamy and PW-4 - Erappa, who are projected as the eye witnesses and brothers of the injured PW-3 and the medical evidence of PW-1 - Dr.C.R.Krishna Rao and the weapon of offence which is a chopper at MO-1, which is said to be seized from the place of offence under scene of offence panchanama.
14. PW-1 is Dr.C.R.Krishna Rao. He has spoken about the admission of PW-3 injured Muniraju in St.John's Medical College & Hospital, Bengaluru, at about 8.30 p.m. on 18.4.2004, wherein he is said to be working as a Doctor. According to this witness, injured patient was brought to the hospital by his brother-in-law with the history of injury due to assault by a relative. The patient was said to have been referred from Satish Nursing Home. The witness has stated that on examination of the injured, he found the following injuries :
Crl.A.No.644/20109
1. Transverse incised wound 2 cm. x 1 cm. over back of left shoulder.
2. Punctured wound 1 cm. x 0.5 cm. on inner aspect of lower third of left arm.
3. Deep lacerated wound on ulnar border of left wrist extending on to back of left wrist 5 cm. x 2 cm. extensor tendons injured.
4. Traumatic amputation of right wrist exposing the carpal bones muscles nerves tendons and vessels oozing present.
5. lacerated wound over chin 3 cm. x 1 cm.
6. lacerated wound on back of skull 5 cm. x 2 cm.
The witness has opined that injury Nos.1, 2, 5, and 6 were simple in nature and injury Nos.3 and 4 were grievous in nature. Stating that he has issued a wound certificate in that regard, the witness has marked the same at Ex.P-1 and his signature therein at Ex.P-1(a). He has also stated that injured was in the hospital as an Crl.A.No.644/2010 10 inpatient from 18.4.2004 to 10.5.2004. He has produced the entire medical sheet and got it marked at Ex.P-5. He has also deposed in his examination-in-chief that injury No.4 could be caused with the weapon like chopper at MO-1 and the rest of the injuries would also be caused with the same weapon, however, it depends upon the pressure and posture with which the weapon was used.
PW-1 was cross-examined from the accused side, wherein suggestion was put to him that the injuries mentioned in Ex.P-1 could be caused in a road traffic accident or by falling on hard surface. The same was admitted by the witness. He has also admitted a suggestion that the injuries could be caused by using different types of sharp edged weapons also.
15. PW-2 - Venkataswamy and PW-4 Erappa in their evidence have stated that they are the brothers of Crl.A.No.644/2010 11 CW-2 (PW-3) Muniraju. Among them, said Muniraju is the youngest and they are the residents of Thirumagondanahalli village. Both the accused are the residents of same village Thirumagondanahalli and brothers inter se. They reside in third house from the house of PW-2.
About the incident, PW-2 has stated that on the alleged date of incident, at about 7.00 p.m., when he was weeding the garden land and CW-2 (PW-3) Muniraju was taking out the spinach crops and PW-4 - Erappa was also working, accused No.1 came all of a sudden and assaulted CW-2 (PW-3) Muniraju with a long chopper. When Muniraju tried to ward off that blow, it landed on the right hand of Muniraju, resulting in severance (cut off) of the right wrist of Muniraju, which severed portion fell on the earth. Accused No.1 further assaulted Muniraju on his head, at which time, himself Crl.A.No.644/2010 12 (PW-2) and PW-4 could do nothing as they were scared of the incident. Accused No.2 also had come to the spot and he was instigating accused No.1 to assault CW-2 Muniraju stating that whatever may be the expenses, he must be assaulted. After the incident, both of them left the place. While going back, accused No.2 threw the long chopper in the spot. Thereafter, himself (PW-2), joined by his elder brother (CW-3) and one Ramachandra (CW-4), who was also at the spot, took the injured and the portion of the hand which had fallen on the ground, to the road side and CW-5 Rajappa who was nearby, took the injured and another person Muniyappa to Satish Nursing Home on his scooter. He (PW-2) also went along with them with another motorbike of a passerby. He carried the cut portion of the hand of the injured and at the advise of the doctor at Satish Nursing Home, they shifted the injured in a Crl.A.No.644/2010 13 Tata Sumo vehicle of Yellareddy to St.John's Hospital, Bengaluru.
It is the further in the evidence of PW-2 that he handed over the cut portion of the CW-2's hand to the doctor. On that night, he could not go to the police station. However, on the next morning, he went to the police station and lodged a complaint. The police visited the spot at 3.00 p.m., to whom, he has shown the place of offence. The police seized blood stained sample mud and the long chopper that were found on the spot by drawing a mahazar, for which also, he affixed his thumb impression. The witness identified the chopper at MO.1, stating that the same was the weapon used by accused No.1 to assault his brother CW-2 Muniraju.
The witness has also stated that about three to four days earlier to the incident, there was a quarrel between accused No.1 and his brother Muniraju with Crl.A.No.644/2010 14 regard to drinking water from public tap. Because of that, accused Nos.1 and 2 nurtured ill-will against his brother Muniraju and wanted to do away with his life. The witness got marked the complaint lodged by him at Ex.P-2 and the scene of offence panchanama (spot panchanama) at Ex.P-3.
He was subjected to a detailed cross-examination from the accused side, wherein he adhered to his original version.
16. The evidence of PW-4 is also in consonance with the evidence of PW-2. Apart from stating his relationship with PW-2 and PW-3, the witness has stated that, on the date of the incident, in the evening at about 7.00 p.m., himself and his both brothers were working in their respective lands. At that time, accused No.1 Muninanjappa came there and assaulted Muniraju with a long chopper, at which, the right hand of Muniraju was Crl.A.No.644/2010 15 cut off at the arm level and seeing that, he (PW-4) became scared. Accused No.1 also assaulted Muniraju on his head and back.
The witness has also stated that accused No.2 had also come along with accused No.1 and was instigating accused No.1 to assault CW-2 (PW-3) Muniraju. Himself, joined by his another brother and CW-4 Ramachandra, shifted the injured to the road side, where Rajappa was found. Said Rajappa took the injured on his scooter along with another person by name Muniyappa, to Satish Nursing Home at Hebbagodi. He (this witness) went there in a vehicle of one Chandrappa. PW-2 also went on another vehicle of a passerby, carrying the cut portion of wrist of CW-2 Muniraju. At the advise of the doctor at Satish Nursing Home, the injured was shifted to St.John's hospital in a Crl.A.No.644/2010 16 Tata Sumo vehicle of one Yellareddy. The witness has stated that he was with his brother in the hospital.
He was subjected to a detailed cross-examination from the accused side, wherein he adhered to his original version.
17. CW-2 (PW-3) Muniraju is the injured in the alleged incident. In his evidence, apart from stating that PW-2 and PW-4 are his brothers and are residing at Thirumagondanahalli village, cultivating their respective lands, the witness has stated that as on the date of alleged incident, at 7.00 p.m., when he was tying the spinach crop for supplying the same to Horticulture shop at Lalbagh and his other two brothers were also working in the land, accused No.1 came there along with big long chopper, shouting at him and when he lifted both the hands, the blow landed on his right wrist, at which, his wrist got cut and severed from the body. His left hand Crl.A.No.644/2010 17 at wrist joint was also injured. Accused No.1 also assaulted twice on the back of his head and on his back. At that time, accused No.2 who had also came along with accused No.1, was telling accused No.1 to assault irrespective of the expenses they incur. According to this witness, at that time, his brothers came there. Throwing the chopper on the spot itself, both the accused ran away from the spot. CW-4 -Ramachandra came there and all of them shifted him to the road side, from where Rajappa took him on his scooter along with one Muniraju to Satish Nursing Home. At the advise of the doctors there, he was shifted to St.John's hospital with the vehicle of Yellareddy. He was admitted in the hospital as an inpatient for about a month. The cut portion of his hand was stitched.
About the motive behind the crime, the witness has stated that about a week earlier to the incident, there was a quarrel among the women folk with regard Crl.A.No.644/2010 18 to fetching of water from the public tap. He had interfered and asked the women to co-operate. It is because of that, both the accused had nurtured ill-will against him and wanted to do away with the life. The witness has also identified the chopper at MO-1 with which he was assaulted.
He was subjected to a detailed cross-examination from the accused side, wherein he adhered to his original version.
18. PW-5 (CW-6) Yellappa in his evidence has stated that he knows and seen PW-2 and PW-4. He has also seen their lands in their village. The incident has taken place in the lands of PW-3 in his village. On the next date of the incident, police visited the spot and in his presence, drew the scene of offence panchanama as per Ex.P-3. Apart from himself, CW-7 had also affixed his signature on Ex.P-3.
Crl.A.No.644/201019
The denial suggestions made to him in his cross- examination were not admitted as true by this witness.
19. PW-6 (CW-12) Nagaraju, then Police Sub- Inspector of the complainant-police station has stated that he took up further investigation from CW-11 in this case on 19.4.2004. Identifying the signature of CW-11, he has marked FIR at Ex.P-4 and signature of Head Constable in it at Ex.P-4(a). He further stated that he visited the scene of occurrence after taking over the investigation. In the presence of panchas, he drew a scene of offence panchanama as per Ex.P-3 and from the spot, seized the weapon called chopper, sample mud, blood stained mud while drawing the mahazar. He has identified the sample blood and blood stained mud at MO-2 and MO-3 respectively and the weapon called long/chopper at MO-1.
Crl.A.No.644/201020
The witness has also stated that during the course of investigation, he recorded the statements of CW-4, CW-5, PW-4, PW-3, arrested the accused, produced them before the Court, received the wound certificate as per Ex.P-1, sent the seized articles for Forensic Science Laboratory for its test and opinion and thereafter, completing the investigation, filed charge sheet, pending receipt of Forensic Science Laboratory report.
He was also subjected to cross-examination from the accused side, wherein he adhered to his original version.
20. The evidence of PW-2, PW-3 and PW-4, that they are brothers and residents of Thirumagondanahalli and that dividing a land measuring 20 guntas, they were cultivating it respectively, is not in dispute. Similarly, both accused Nos.1 and 2 are brothers and they also reside in the same village Thirumagondanahalli and that Crl.A.No.644/2010 21 their house is third house from that of PW-2 Venkataswamy, is also not in dispute.
21. PW-3 - Muniraju, is the injured in the incident. His evidence gives a detail account of the incident, so also, the evidence of PW-2, who is the elder brother of the said Muniraju. The evidence of PW-4 - Erappa, the other brother of PWs.2 and 3, is also in consonance with the evidence of PWs.2 and 3.
The injured - PW-3, in his evidence has clearly stated about the occurrence of the incident and how he was assaulted by accused No.1 and how the said accused was being instigated and abated by accused No.2. Apart from stating that in the said assault made by accused No.1, his right wrist got severed from the hand, the witness has also clearly stated as to why the wrist alone that was got cut. He has stated that in order to avoid the blow given by the accused No.1 with the Crl.A.No.644/2010 22 weapon i.e., long/chopper, which the said accused had in his hand, when he (PW-3) raised his hand, the said blow lodged near the wrist, thus, his palm was got cut at wrist portion. The said explanation about the incident has been elicited none else than by the accused in the cross-examination of the said witness. The details of the incident given by none else than the injured in his evidence could not be shaken in his cross-examination.
22. However, admittedly there is a delay of twenty days in recording his statement by the Investigating Officer under Section 161 of Cr.P.C. Forwarding the said delay as a ground, the learned counsel for the appellants/accused in his argument submitted that in view of the unexplained delay in recording the statement of the injured, the evidence of PW-3 cannot be believed. In that regard, he relied upon the judgment of Crl.A.No.644/2010 23 Hon'ble Apex Court and another judgment of High Court of Orissa.
23. In the first judgment, which is in the case of Ganesh Bhavan Patel and another -vs- State of Maharashtra, reported in 1979 Crl.LJ 51, wherein the judgment of conviction under Section 302 read with Section 34 of IPC, was challenged by the accused, the Hon'ble Apex Court with respect to Section 161 of Cr.P.C., noticing that there was delay in recording the statements of the alleged eye witnesses, was pleased to observe that the delay of few hours, simpliciter, in recording the statements of eye witnesses may not by itself amount to a serious infirmity in the prosecution case. But, it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view Crl.A.No.644/2010 24 to decide about the shape to be given to the case and the eye witnesses to be introduced.
With the said observation and noticing that under the facts and circumstances of the case before it, delay in recording the statements of material witnesses as casting a cloud of suspicion on the credibility of entire warp and woof of the prosecution story, the Hon'ble Apex Court was pleased to allow the appeal and set aside the judgment of conviction of the appellant.
24. The second case relied upon from the appellants' side is Padmalochan Nayak -vs- State, reported in LAWS (ORI) 1991 9 2, wherein in a criminal appeal against the judgment of conviction for the offence punishable under Section 307 read with Section 34 of IPC, the Hon'ble Orissa High Court, among other aspects, had also observed the delay of twentysix days in recording the statement of PW-5 and no Crl.A.No.644/2010 25 attempts being made by the Investigating Officer to examine the said PW-5 and was pleased to allow the appeal by setting aside the conviction and sentence passed by the Court below.
25. In the light of the above two judgments, learned counsel for the appellants submitted that the medical doctor who was examined as PW-1, has clearly stated that, except during the period he was operated, throughout his stay in the hospital, the patient was conscious. Thus, non-recording of the statement of PW- 3 - the injured, for a period of twenty days, would cause a serious doubt in the case of the prosecution.
26. Learned High Court Government Pleader in his argument submitted that mere delay in recording the statement of PW-3 would not take away the case of the prosecution since the evidence of PW-3 otherwise has remained unshaken and is also corroborated by the Crl.A.No.644/2010 26 evidence of material witnesses and the medical evidence. The Division Bench of this Court in Yeshwanth Bhandary -vs- The State of Karnataka, reported in {2004 (4) KCCR (SN 405) (DB) 433}, while considering the delay by the Investigating Officer in examining the witnesses and its effect was pleased to hold that the delay in examining the witnesses during the course of investigation is material only if it is indicative and suggestive of some unfair practice by the investigation agency for the purpose of introducing a got-up witness to falsely support the prosecution case. It is essential that the Investigation Officer should be asked specifically about the delay and the reasons thereof. Evidence of a witness does not become untrustworthy merely because he was examined after delay by the Investigation Officer, particularly when his evidence is found to be trustworthy and reliable and Crl.A.No.644/2010 27 when he withstood searching cross-examination during trial.
The Hon'ble Apex Court in Sidhartha Vashisht @ Manu Sharma -vs- State (N.C.T. of Delhi), reported in AIR 2010 SC 2352, considering Section 156 of Cr.P.C., was pleased to observe that delay in examination of the witnesses by police cannot be a ground to throw out testimony of witness.
27. The date of occurrence of alleged incident is 18.4.2004, whereas the statement of the injured (PW-3) under Section 161 Cr.P.C. is shown to have been recorded on 8.5.2004. Admittedly, the information to the respondent-police station has reached on 19.4.20014 at 12.45 p.m., as could be seen in the FIR at Ex.P-4. PW-6 - the Investigating Officer, has stated that he took over the investigation in this matter from CW-11, the Head Constable, who had registered the Crl.A.No.644/2010 28 case, on 19.4.2004 itself and had proceeded to the scene of occurrence of the offence and had drawn the scene of offence panchanama (spot mahazar) as per Ex.P-3. He has stated that the statement of the injured i.e., PW-3 was recorded by him on 8.5.2004. He has stated about the delay in recording the said statement in his cross-examination that though he visited the hospital on 19.4.2004 itself, as the injured was not in a position to give the statement, the statement was not recorded by him. When it was elicited from him that he has not recorded the statement or received the endorsement of the duty doctor or doctor treating the patient in regard to incapacity to give the statement, the witness volunteered to state that it was a private hospital and that the said doctors were not giving such letters or statement.
Crl.A.No.644/201029
The said explanation given by the witness about the time in recording the statement of PW-3 has not been specifically denied by the accused. On the other hand, made a suggestion to the witness that he has suppressed the statement given by the patient on the very next day of patient's admission in the hospital when PW-6 had been there, has not been admitted as true by the said witness. By making such a suggestion, the accused has admitted that PW-6, the Investigating Officer, had been to the hospital to see the patient on 19.4.2004. Therefore, the un-denied explanation given by PW-6 for delayed recording the statement of PW-3, the injured, has remained unshaken.
28. In addition to the above, it is also to be noticed that even though PW-1 - the doctor, has stated in his cross-examination that except during the period of operation, throughout his stay, the patient was Crl.A.No.644/2010 30 conscious, but, the said doctor has not stated that patient was in a fit condition to speak or to give his statement. It is not shown in the evidence of PW-1 that by his statement that patient was conscious, he meant that patient was in a condition to speak or to give his statement.
29. Similarly, even though the brothers of the injured i.e., PWs.2 and 4 were also subjected to a detailed cross-examination from the accused side. Nowhere in their cross-examination it has been elicited that the injured was in a condition to speak from the date of his admission in the hospital till 8.5.2004 when PW-6 is said to have recorded his statement.
30. On the contrary, the evidence of both PW-2 and PW-4, being the evidence of eye witnesses, have corroborated the evidence of PW-3 about the incident and the manner of its occurrence. In that circumstance, Crl.A.No.644/2010 31 when the explanation given by the Investigation Officer i.e., PW-6 for the delayed recording of the statement of PW-3 has remained un-denied and the evidence of PW-3 is further corroborated by the evidence of PW-2 and PW-4. No fowl play by the Investigating Officer or any doubt in the case of the prosecution can be suspected.
31. PW-2 and PW-4, as observed above, have duly supported the case of the prosecution. In view of the undisputed evidence of PW-2, PW-3 and PW-4 to the effect that they being the brothers, had divided 20 guntas of land inter se and were cultivating it respectively, the presence of PW-2 and PW-4 near the place of offence at the time of incident cannot be suspected. All the three of them have stated that at the time of the incident, they were attending to their agricultural work. PW-2 has clearly stated that he has seen accused Nos.1 and 2 approaching his brother-PW-3 Crl.A.No.644/2010 32 Muniraju and accused No.1 assaulting the said Muniraju with a long chopper which he had brought with him. The details of the incident narrated by this witness exactly tallies to what the injured- PW-3 has stated in his evidence. This witness has also stated that though himself and his brother were there, they could not do anything because they were scared of the incident. Even PW-4 also has stated that on seeing the incident, he was scared.
Nothing could be elicited in their cross-examination which could make their evidence not trustworthy. As such, the unshaken evidence of PW-2 and PW-4 as eye witnesses to the alleged incident has made it clear that it was the accused No.1 only who has assaulted PW-3, causing grievous injuries upon him, including the severance of the right palm from his hand. Crl.A.No.644/2010 33
32. Learned counsel for the appellants in his argument also taken a contention that the wound certificate at Ex.P-1 mentions the history of the injury as assault by a relative. Since it does not disclose the name of the accused, it cannot be proved that it was the accused who had assaulted PW-3.
The said argument of the learned counsel is also not acceptable for the reason that it cannot be expected that in every case whoever brings the injured to the hospital in a casuality should necessarily reveal before the doctor all the details, including the names of the assailants.
Further there is no material, at least, in the form of cross-examination of the doctor (PW-1) eliciting that the doctor enquired about the names of the alleged assailants, still, it was not revealed to him. Therefore, merely because the specific names of the accused has Crl.A.No.644/2010 34 not been revealed before the doctor, that too, in a circumstance when the injured was rushed to the hospital in a condition where his right palm was severed and was being carried with him separately, it cannot be expected that the details about the identity of the accused should have been necessarily disclosed to the doctor.
33. PW-3 - the injured, PW-2 and PW-4 - the eye witnesses, have uniformly stated about the occurrence of the incident and the manner how it occurred. Their evidence has come in consistency. All the three of them, apart from showing that their presence in the place of incident at the time of incident was probable under all circumstances and that it was a fact, have also stated that they have seen the incident. Apart from description about the injures suffered by PW-3, they Crl.A.No.644/2010 35 have also identified the weapon at MO-1 and stated that the same has been used in the commission of the crime.
34. Even though the learned counsel for the appellants submitted that the evidence of PW-2 and PW-4 is not trustworthy for the reason that they being the brothers of PW-3, they were interested witnesses, but, merely because they are brothers of PW-3, their evidence cannot be discarded at the threshold. No doubt, they being interested witnesses, their evidence requires to be subjected to a thorough search and scrutiny. As already observed above, despite they both being subjected to a thorough and searching cross- examination, their evidence about they witnessing the occurrence of incident could not be shaken in their cross-examination. Therefore, when their presence in the place of occurrence as owner-cum-cultivator of their land at the time of incident is established, their evidence Crl.A.No.644/2010 36 that they have seen the occurrence of the incident has also been established by their unshaken cogent evidence. As such, though they are interested witnesses, still their evidence is trustworthy.
35. PW-3 - the injured, has stated that when he raised both his hands to avoid the blow given by the accused No.1 from landing on his head, his right hand got cut in the front portion at wrist level and his left hand at the wrist joint also got injured. He has stated that accused No.1 assaulted twice on his head and on his back. The evidence of PW-1 - the doctor, also says that he noticed amputation of right wrist exposing the carpal bones muscles nerves and tendons, deep lacerated wound on the ulnar border of left wrist, punctured wound on the inner aspect of lower third of left arm, transverse incised wound over back of left shoulder and lacerated wound on back of skull. Crl.A.No.644/2010 37
36. Thus, the details of the blows lodging on the various parts of his body as stated by PW-3 clearly corroborates with the medical evidence of PW-1 -the doctor.
So also, the use of the weapon, which according to PWs.2, 3 and 4, is the long chopper at MO-1 has also been seen by the doctor as PW-1, who has opined that the said weapon could cause those injuries found on the injured. Thus, there is corroboration between the evidences of the injured, ocular witnesses and the medical evidence.
37. It is also the argument of learned counsel for the accused/appellants that non-examination of CW-4 Ramachandra and CW-5 Rajappa makes the case of the prosecution a doubtful one.
According to PWs.2, 3 and 4, CW-4 Ramachandra came to the spot immediately after the incident and Crl.A.No.644/2010 38 helped PW-2 and PW-4 to shift the injured along with portion of palm that was cut and separated, to the road side, wherein the house of CW-5 Rajappa was there. According to them, thereafter taking the help of Rajappa, the injured was shifted to Satish Nursing Home on the scooter of Rajappa along with another person Muniyappa. From Satish Nursing Home, the injured was shifted in Tata Sumo vehicle of one Yellareddy to St.John's hospital.
38. The prosecution has not examined these two witnesses i.e., CW-4 Ramachandra and CW-5 Rajappa. Even according to the prosecution neither of them are the eye witnesses to the alleged incident. The evidence of PWs.2, 3 and 4 that with the help of CW-4 Ramachandra, the injured was taken near a road side up to the house of CW-5 Rajappa and thereafter, in the motor vehicle of Rajappa, the injured was shifted to Crl.A.No.644/2010 39 Satish Nursing Home, has not been specifically disputed or denied. As such, the non-examination of CW-4 Ramachandra and CW-5 Rajappa or above referred Muniyappa, would not in any way succeed in introducing any suspicion in the case of the prosecution.
39. Regarding the place of occurrence of the incident, which is said to be an agricultural land belonging to the injured (PW-3) in Thirumagondanahalli, all the three witnesses i.e., PWs.2, 3 and 4 have uniformly given their evidence that the same was their place. Even though PW-5 who was shown to be a pancha for spot mahazar, except admitting his signature in mahazar at Ex.P-3, has not supported the case of the prosecution, still the evidence of PWs.2, 3 and 4 and the evidence of the Investigating Officer i.e., PW-6 about he visiting the place of offence, drawing spot mahazar and collecting the articles there, including the Crl.A.No.644/2010 40 long chopper at MO-1, establishes not only the place of offence, but, also the seizure of the weapon from the spot, which weapon has been identified by PWs,2, 3 and 4, among whom, PWs.2 and 4 have also stated that the accused had thrown the said weapon in the spot itself before fleeing away from the scene.
40. The other contention of the learned counsel for the accused/appellants is that there is a delay in registering and submission of FIR, as such, the entire incident is suspectable.
According to PW-2 - the complainant, and according to his complaint at Ex.P-2, the incident has occurred at 7.00 p.m. on 18.4.2004. The FIR is shown to have been registered at 12.45 p.m. on 19.4.2004. However, in the complaint itself, the complainant has stated that the delay in lodging the complaint was because he had to attend his injured brother in the Crl.A.No.644/2010 41 hospital and then had given the complaint, as such, there was delay.
The said complainant, who was examined as PW-2, in his cross-examination has stated that after accompanying the injured to the hospital after the incident, he was in the hospital with his brother, as such, on that night, he could not go to the police station. However, on the next morning, he went to the police station and lodged the police complaint. PW-2, the complainant being the elder brother of the injured and also among the one who shifted the injured to the hospital, his statement that he was accompanying the injured brother in the hospital on that night, as such, he could not go the police station, can be believed and does not give any scope for suspicion. Therefore, it cannot be said that there is no unexplained delay in lodging the complaint by the complainant.
Crl.A.No.644/201042
41. After registration of the complaint in the police station at 12.45 p.m., the complainant-police have taken some more time to submit FIR to the jurisdictional Magistrate. As could be seen in the FIR at Ex.P-4, the said document reached the jurisdictional Magistrate on the same night at 8.30 p.m. Though the said delay has not been convincingly explained by the Investigating Officer and prosecution also has not elicited any reasons for the said delay, but, by the said delay itself, the prosecution case cannot be suspected, that too, when the cogent evidence of material witnesses like PWs.2, 3 and 4 have fully supported the case of the prosecution. As such, in the absence of any material to suspect any fowl play by the police or any act resulting prejudice to the interest of the accused, mere short delay in the FIR reaching the jurisdictional Magistrate by itself would not make the prosecution case a suspectable one. As Crl.A.No.644/2010 43 such, the argument of the learned counsel for the accused/appellants on this aspect also is not acceptable.
42. According to the prosecution, the motive behind the crime is a quarrel between women folk with regard to fetching of water from a public tap in the village and the interference of the injured in it asking women members of the accused family to co-operate. It is stated that, in that regard, a quarrel had also taken place between accused No.1 and PW-3, as such, the accused were nurturing ill-will against PW-3, which resulted in the incident. Both PW-2 and PW-4 have given their evidence in detail on this aspect. The evidence of PW-2 and PW-4 regarding the motive behind the crime since has not been specifically denied from the accused side, the motive behind the crime also stand established.
Crl.A.No.644/201044
43. It is also the argument of learned counsel for the accused/appellants that no overt act is alleged against accused No.2. As already observed above, even though no witnesses have stated that accused No.2 by himself assaulted PW-3, but, the evidence of PWs.2, 3 and 4, clearly establishes that accused Nos.1 and 2 are brothers and at the time of commission of crime, accused No.2 had accompanied accused No.1 and being present in the place of occurrence of the incident, was abating accused No.1 to assault PW-3 by shouting that irrespective the amount to be spent, PW-3 to be assaulted. Thus, the participation of accused No.2 as an abettor being present in the place of occurrence is also established.
44. It is the defence in the form of suggestions made to PW-2 and PW-3 from the accused side that on the date of occurrence of the incident, PW-3 - the Crl.A.No.644/2010 45 injured was proceeding on his motorcycle for an election campaign and at that time, a Tata Sumo motor vehicle belonging to one Yellareddy, dashed against the motorcycle of PW-3 and in the said accident, PW-3 sustained injuries, however, PWs.2, 3 and 4 have got up a false case against the accused. The said defence of the accused being only in the form of suggestions made to PWs.2, 3 and 4, has yielded no positive response from them in favour of the accused. All the three witnesses have categorically denied the truthfulness in it. Therefore, except making a suggestion, nothing could be placed from the accused side to substantiate their defence.
Even though in the cross-examination of PW-1, the doctor has admitted a suggestion as true that the injuries found on the injured could also be caused in a road traffic accident, but by such a mere suggestion Crl.A.No.644/2010 46 itself it cannot be inferred that injuries upon PW-3 was caused in a road traffic accident. In order to prove their defence, the accused should have placed some material to establish the same. However, their defence being in the form of a mere suggestion made to some of the prosecution witnesses and those suggestions since have not been admitted by those prosecution witnesses as true, it has to be held that the defence taken by the accused also could not be established.
45. As a result of the above analysis, it is clear that the evidence of the prosecution witnesses, more particularly of PWs.2, 3 and 4, corroborated by the medical evidence, clearly establishes that it is accused Nos.1 and 2 only who have committed the alleged act of assaulting PW-3 with the chopper at MO-1 on the ill-fated day of 18.4.2004 at 7.00 p.m. in the lands of PW-3, causing grievous injuries to him. As such, the Crl.A.No.644/2010 47 prosecution has proved the guilt against the accused beyond reasonable doubt. Since the trial Court having appreciated the materials placed before it in its proper perspective, has arrived at a finding, holding the accused guilty of the alleged offences. I find no reason to interfere in it.
46. With respect of quantum of sentence also, the trial Court has applied its mind and taking into consideration the circumstances of the case, has ordered the sentence proportionately to the guilt proved against them. As such, the impugned judgment of conviction and order on sentence does not warrant any interference at the hands of this Court.
Accordingly, the Appeal stands dismissed. The judgment of conviction and order on sentence passed by the learned Principal Sessions Judge, Bengaluru Rural Crl.A.No.644/2010 48 District, Bengaluru, in S.C.No.14/2006, dated 21.06.2010, is confirmed.
The relief of bail granted to the accused stands cancelled.
The Registry is directed to transmit a copy of this judgment to the trial Court forthwith, to enable it to proceed further in the matter for issuance of warrant of conviction if necessary and proceed in accordance with law.
Sd/-
JUDGE bk/