Karnataka High Court
Subash Chandra @ Subhash vs State Of Karnataka on 2 June, 2010
1 C1'l.A 136] /{V7
IN THE HIGH COURT OF KARNATAKA AT EANGALQRE
DATED THIS THE 021m DAY OF JUNE 20
BEFORE Q 1'
THE HON'BLE MR.JUsT1cE - _ it "
CRIMINAL APPEAL NO=..V361~OF 2007-
BETWEEN 4 I . " "
1. Subash Chandra @ Subhas~h,"
S/o. Muniraju,
Aged about 39 years, '
Residing in Premisesfin --_ 1 ,
No.132, Teacher's c'o'1;my,._,,':'»
Nagashettyhalli, '
Bangalore,
2. M. Mad:es}i,«.._ V V'
S/0. Mu.nir_a§;=u, " ' V ¢_
Aged~-about 3E:;:A.years,V--._ '
Residing" P_retni5.es~. in
Noll 33}, Teach-eLr's, Ceiony,'
Nagasuh'cttyhVaIli,;». V'
Banga"io_<re..V '_ " APPELLANT/S
(Sri;\§:A:.13V.Ni_ Shyxam clfrasvad 8: Associates, Advs.)
1. '=§3tatei.'of K-arnataka
A ._By theikispector of Police /
€'»ta'tioh" House Officer,
-. Sanjayanagar Police Station,
" :._Bari'ga}ore,
x _ Represented by the
bi 'State Public Prosecutor. RESPONDEN'1'/ S
"(iSri. A.V. Ramakrishna, HCGP)
2 (I1'1.A 36%/()7
. This Criminal Appeal is filed under Section 374(2)
Cr.P.C. by the advocate for the appellants against the
judgment dt. 29.1.07 passed by the 13.0., FTC~II, Bangalore
City, in S.C.No.289/06 -- convicting the appellantsg/a_c'c;1"s.ed
for the offences 13/11/85. 326 1'/W 34 of IPC andws-ent_einTci_ng
each one of them to undergo S.I. for 2 yearsand eachi one',
is fine Rs.25,000/~ I.D., further S.I. for one .y.eVar,eVach.'_
This Criminal Appeal coxIiing'_:goni"«_gfo:r 'apart
hearing, this day, the Court deliveredithe follovsitlgz ,
The appellants have chAallenge'd_gtheir*conjriction and
sentence for the Section 326
readwith 34 IPC_*on a t.ria1.h1e1d Track Court at
Bangalore. _ ».
The" 'Vf;§;.Ct§\\i'~:V1e¢31gI,g\.fa_lilt for the purpose of this appeal
are as un'd_er:_
, The C4 " accusedh are the sons of PW. 1
C°'channaikrisiinamniaf«Whereas 1°w.5 is her brother. The
.l5"t$f_v."1.. had expired a year earlier to the incident
and..44theV.pi_'ovperty was partitioned amongst PW.1 and her
Wsons accused. PW.1 was an aged lady and in the
V"--iieir_ei4irnstances, as she was not able to look after the family,
was taking the assistance of PW.5 her brother and in this
:3 C".1'l A 36 1 / O7
regard, the accused had entertained anger and on two
occasions, they had caused assault on PW.5_4..a_n§l~.,the
complaints in this regard were submitted to :_.
On 18.8.2005 at about 6.0()'&_t'he _:e,ccvused----can:e i
in a Car and at once sgtartedgx iq-uarrell'ing*.\.vith'~._the
complainant and PW.5 who thex_h'o-us'e time'
and they dragged him out ironrodsi that they
had brought, caused the brother of
PW.1 and PW. she was also
assaulted. the place and
approacl1'e».d,T:t'h.e brought them to the
spot and' accused had escaped. The
injured was.adir1iitt.e'd,:]in the hospital and in these
circttrnstances,"sehe filed a complaint to the Police on these
{ac-ts,' wAhich:i"came to be registered by PW.9 the Station
lfoizse Crime No.32!-1/2005 for the offence
--V punishable' 'under Sections 341, 323, 324, 506 readwith 34
,I?€C..'_ During the investigation, the spot rnahazar was held in
'presence of PWs.4 and 6 and the two iron rods M0s.1
"and 2 were seized and the statement of the witnesses were
4 (Jr) A 36 1 / 0"?
recorded. The injury certificate Ex.P.4 was collected and
on completion of the investigation, the chargesheet came
to be filed against the accused for the offences punishable
under Sections 323, 307, 506 readwith 34 IPC. n_uhéihg'~':he
trial, the prosecution led the evidence by exaniinin'g:'.:PlXl's--'...1*,
to 9 and got marked the docurn_e.n.t,s4Ex_s.l5."1*:..toVi'VP.6.Vandr
MOs.1 and 2. The statement of the accused was
under Section 313 Cr.P.C. havetVai:.e_n°itihefldefencei of
total denial and have not led___any_ d.e_fenc'e~«evide:nce. The
Trial Court on appreciation' the i4rnatAe1'i,aI on record held
that the accuseduin furti'1'c»rance of theixfcvonamon intention
had caused: eseaultzeh 11:=w.5 who had sustained the
grievous'injuries,and5.n' circumstances, convicted them
for the offence under fiection 326 readwith 34 IPC and
~,.,3rd"ered3.--."ithem toivundergo simple imprisonment for two
.yéa_rsi*tVo~..:pjay the fine of Rs.25,000/- each and in
default, imprisonment for one year. Aggrieved by
"-the conviction and sentence, the accused have approached
V' ' -- "Court in appeal.
54
5 C.'1'l.A 36%/O7
3. K have heard the learned cousnel for the
appeliants and also the learned High Court Government
Pieader for the respondent State. The points that arise for
my consideration are: i {i} Whether the judgment and '7' convicting the appellants for the .
under Section 326 readwith" i3i4"iPpC7,is.; and perverse?"
{ii} Whether there..t:az'ie it circumstances to reduce.__ the is'en_teVn§ce ordered by the Tr--iai«-- Co-urte? "
4. It is the co.I1'ten:tiori._o.f_ th'e.iie.arned cousnel for the the person who filed the cornplainityito t'he"'J has turned hostile to the prose;ct"xti.on ancluthat there was a litigation between PW.1 itandjxherihrother PW.5 who sustained injuries in the said iincident. :'andthe circumstances, the counsel submits thatzin V._theA4iahsence of any corroboration. the version of PW,5 regard to the incident implicating the appellants _i'c.annot be accepted. So also. it is his contention that ii .. _,t_h§ongh it was the case of the prosecution that PW.1 had 94 (3 (?:'§..A I361/O"?
sustained the injuries was not examined and this supports the defense of the accused. Furthermore, he contends~.that PW.5 has not sustained any injuries on the "it is in his evidence that he sustained the injurie's~..to'~t1:1i<sA right . hand, while blocking the assauition ' rod and therefore. he contends thatlthe is inconsistent with the ocularevidenee'andvftherefore, the case of the prosecuticn"':ean.n.ot is also his contention thatAV'PW.4,AVV_t_he_VV to the spot mahazar has itoijvitjhtg.iprosecution and the contents the. spot""t':'.'r;1ai1atzai=§ "has not been proved satisfa.ctori_1v'ia._ndVVthereiforen as there is material to show the enerntitiyppbetnfeeia and the accused on one side and :.?'N:5 and on the other. the version of the ."'pro"s'eac1iAtion A.cannotm'he accepted and that the Trial Court ciorninittiedviian error in convicting the appellants for the abovesaid Zoiiences. On these grounds. he has sought for V'-».setting,aside the conviction and the sentence. Per contra, iiearned High Court Government Pieader supports the judgment and order of the Trial Court and submits that {>4 7 <:r1.A 351/()7 P'W.5 is an injured witness who has suffered grievous injuries and the evidence of an injured cannot be rejected solely on the ground that there is no corroboration. It is his further submission that PW.7 who is an eyewiti1e"ss"'has corroborated the version of PW.5 and therefore'. that the Trial Court was justified conviction. 0 V
5. I have scrutiniseVtl._tgh.e_materiai record. it in addition to the evidence sand"the__Ado.cum.entAs§ produced during the course of the trial'-._ } 0 '_AiAs7Ithe :l)Voetvo'r_'jwho examined PW.5 the injured and he states inj_.hijs.evideri'ce that on 18.8.2005 at about 7.10,;;.rn. iaewas the Hospital, PW.5 aged about 55 . .'"yearsaciame'l*tAo hiniiiwith the history of assault at 6.00 6.15 . Teacher's Colony. stating that he was assauited by one and Madesh and he examined him and
7.found'' following six injuries upon him. x 1. Swelling and pain in the lower half of the left lower leg and ankle. Dz;
H {:i'§.r'\ 136] /O7
2. Longitudinal contusion over the iateral aspect of ieft iower leg.
3. Commuted fracture of medial malleolus and shaft of fibula.
4. Injury to the right leg with fracture l"
proximal shaft right tibia with_--a~'cr_a:sion:: « over the antero lateral ashlpectlof thei'ank1e._:""l measuring 3 x; 3 crns. j A' j i
5. A cut injury over the'~g.r"eat toe._rlI1eFi5urinlgW ix 1 cms.
6. Contusion over the th--:.«n.;)l areafif" --. s-tatevs that all these injuries were caused to him" and wood cane. He is of the opinion that 2 and 5 are simple and injury ' a3-nd iigare grlielyous in nature. In this regard, he has ._.issuedcertificate Ex.P.4 which reveals the injuries referred' to "above.
AA So according to the prosecution, the incident ltookjjlplace at about 6.15 p.m. and immediately. the injured Wras shifted to the hospital and it is at '2'.1O p.m. on the E} (I:'i..»'-'\ I561/()7 same day. the Doctor PW.3 examined PW.5 and found the injuries stated above and also recorded the as stated by PW.5. Apart from this, it is relevantjto"note_'ithjat_ PW.1 is said to have submitted a complaint~to.. 7.30 p.m. on the same day, i.e..I_wit.hin "it;/5'.11o1ixs-V.§£..:.+;he incident narrating all the facts of t'h_e'i.nciden*t. been stated by PW.5 before this.i.:._x(Zourt dwhitchi':is.i:c;onsistent with his statement andzjjtsthe the coinplaint. It is no doubt true that accused has turned hosti1es*'t'o~£.the that she has not filed dispute the signature on the to note that as PW.1 is the moth.er~ of' may be that anticipating h convic.t_ion to .fson.s ifnight have thought of becoming V' agtompasstionate and"'in this context, she must have turned :t"o_.{~hhe.t_:p;?osecution. The mere fact that PW.1 has turned is itseif insufficient to discard the iacceptabfe evidence of the other witnesses. Apart from as could be seen from the evidence of PW.1, she has ii"'t..._i"ista:ted that PW.5 used to come to her house once in 15 Mg 1 E ('I1'l.;\ I361/()7 PW.6 is brought up by PW.5 and even if this evidence is to be rejected on this ground, it is not the law that thelzostile attitude of the witness is sufficient to discard the elvidence of the Police Officer, who has stated about the spot mahazar Ex.P.2 and sei2j;ure"'of &_1\l10s.1flaind: 2--:'fro'm i the spot. So, as could be seen frona,_t13._ei.materia1,plaee~dilonV record and the evidence of t--.};::e'~..p1)octoI, 'thtiugiizvvilvtlhelre are some discrepancies inthe,rned'ica'i~__evidence,/'it is not sufficient to discard the l'eoéular'iev.le'vidence and more particularly. theievidenceiofhran injure'd;, ' i.e.. thepfracture'of..ir1ediia_l"'rnlalleoius and shaft of fibula and fracture of..provxiinal3.shai.t, right tibia cannot come before the.»«!iT;olur~t to 'falsely implicate the accused and it is well estab1ish'e_d,pi'irxciple of law that generally an injured does not~-i1npii?_:fate';;an innocent and does not leave the person _ who°'ha's: really caused the harm. So, if this principle is dadopted; I do not think that there is any such material in .l 'evidence of PW.5 to discard his evidence as he has "'c'onsistent1y stated about the assault caused by the_ 12 (.T1'J.A I361/{'}7 accused and in my considered opinion. except for minor discrepancies. his evidence is consistent with thepimeidiicai evidence and also the evidence of PW.7.
10. The learned counsel though contendevdiiitiiati' there is enemity between PW. 1. 5jand'th_e'i..acc«nseid_ in my opinion that itself isjnot evidence of the injured and and' welt established principle ofziaw &trh'at.iVp_ene:n_ity invhichvgis said to be the motive, is anti' and in the circumstances stated cause for the accused./ta. It is no doubt true that ?W.7 an injured witness and though the corrohorativon isvtnot_:e'ssential, the evidence of PW.7 is consistent With'~«Vth'e___evidence of PW.5 and it is in the evidenc:Ve'<)f«<i:5'e'Sf57 that at the time of the incident. he was repa~iring*[email protected] and also the evidence of PW.1 . reveals 'tvhatiithe premises was being repaired at the time of , .ithe.gincident. Thereby, I am of the opinion that the .i evidence of PWK5 is corroborated in material particulars by the evidence of the Doctor and that of PW.7 the eye {>4 113 (fl1"l.z=\ 363 3/07 witness as the cornpiaint of the incident has been given immediately within 11/2 hours and the Doctor recorded the names of the accused within an hour of the incident as stated by PW.5. I do not think that there was anVy~oc'hjance for PW.5 to concoct a faise case agaisnt the contents of the FIR and the .in€orrna.tion" ' . it Ex.P.4 also corroborates the vers'iori:'_A_Ao'fiv the So taking into consideration._vt'hese all Vnrateria1ig;~athe Trial' Court has come to a__right cone1_usion .conAx/icting the accused for the offence"*.1nder '3:26_readwith 34 IPC. I do not find any grounds" -to virar'r;1nt'.in.teriference so far as their c:.onvictio';1 i&S?§':Vo1:4c.ér.1V'1ed.--
111. '-- The'ole-»a4rned--.__counsel for the appellants has relied up6n__ theiiid._eici'sio:t:i.'i'reported in 1986 soc {Cri) 475 {Naibi Sillgh i7s.--..:vState of Punjab) wherein there was a the offence under Section 326 of IPC and sustained the fracture of the skull valut. Theiiifxpeviti Court so far as the sentence is concerned, finding lthsasté the accused was a School Teacher and the offence coniniitted was in the heat of the moment and lapse of 30 14 (__l1'l.A 36} /07 years since the commission of the offence considered for reducing the sentence of one year to imprisonrnent:'tili'=the raising of the Court by awarding the fine.
this decision, the learned counseisubmits' théf brother of PW.1 and uncle of ac;'cused>.and"that---..th1ere were litigations amongst thern;-..fI'he$r'-are the1c1ose,re1atiVe--s:L' and taking into consideratio_n"-_the_se circnrnstances, he submits that the sentenxfitegArnaygbhe'*--.;jerl'ucged till the raising 0f the Court by on hand are looked principle laid down by the Apex In the case on hand, there --b:e~t.yveez_;vVVVthe parties and there is existing'"en'etnity_.«a-ndb:_'th:e'r-ed. is no material to show that their. relations are cordial atleast after the incident. But b"any'i1ow3;"*it"' is relevitant to note that they are the close trelatiivesg».Jp'artic§ularly PW.1 is the mother of the accused and._sistero:f- §'W.5. The accused were aged about 35 to 37 b"~-'.._V'-years " the time of the. incident. Taking into V"-eonsi"deration the fact that there is huge property of PWH1 arid the accused may be that in a heat of moment by seeing bf;