Karnataka High Court
Yekambarish @ Ekambaram S/O Venkatappa vs The State Of Karnataka on 3 October, 2012
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 3RD DAY OF OCTOBER 2012
BEFORE
THE HON'BLE MR. JUSTICE K.N.KESHAVANARAYANA
CRIMINAL APPEAL No.2241/2005 (C)
BETWEEN:
Yekambarish @
Ekambaram
S/o Venkatappa
Aged 30 years
Hudyahalli Village
Byrakur Hobli
Mulbagal Taluk
Kolar District
...Appellant
(By Sri. C.R.Raghavendra Reddy, Advocate)
AND:
The State of Karnataka
By Nangali Police
...Respondent
(By Shri Rajesh Rai K., Government Pleader)
This Criminal Appeal is filed under Section 374(2)
of the Code of Criminal Procedure against the judgment
dated 21.11.2005 passed by the presiding Officer and
Addl. S.J., FTC-IV, Kolar in S.C. No.66/2000 convicting
the appellant-accused for the offence punishable under
Section 307 and 326 of IPC and sentencing him to
undergo R.I. for 7 years and to pay fine of rs.5,000/- in
default to undergo imprisonment for 1 year for the
offence punishable under Section 307 of IPC and
further sentencing him to undergo R.I. for 5 years and
to pay fine of rs.5,000/-, in default to undergo
imprisonment for 1 year for the offence punishable
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under Section 326 of IPC. Both the substantive
sentences shall run concurrently.
This Criminal Appeal coming for hearing on this
day, the Court delivered the following: -
JUDGMENT
This appeal by the convicted accused is directed against the judgment and order dated 21.11.2005 passed by presiding Officer and Additional. Sessions Judge, Fast Track Court - IV, Kolar, in S.C. No.66/2000 convicting him for the offence punishable under Section 307 and 326 of IPC and sentencing him to undergo R.I. for 7 years and to pay fine of Rs.5,000/- for the offence punishable under Section 307 of IPC and further sentencing him to undergo R.I. for 5 years and to pay fine of Rs.5,000/-, for the offence punishable under Section 326 of IPC.
2. The case of the prosecution in brief was as under: PW2, Laxmamma is the mother of PW1 Umashankar. Accused, Yekambaresh @ Ekambaram is the younger brother of PW2, they being the children of one Late Venkatappa, R/o Punyahalli Village in :3: Mulbagal Taluk. Land bearing Sy.No.117 measuring about 4 acres situated in Punyahalli Village among other lands was the property owned by said Venkatappa who died intestate about 20 years ago leaving behind his wife, Meenakshamma, two daughters and three sons. PW2 was claiming that land bearing Sy. No.117 has been gifted to her by her father towards Harishina- Kumkuma before his death and since than she has been in possession and enjoyment of the said land. Further alleging that accused is interfering with her peaceful possession and enjoyment of the said land, she filed civil suit against the accused before the court seeking relief of permanent injunction and the said suit was pending. At about 11.30AM on 25.11.1998, PWs1 and 2 came to know about the accused harvesting paddy crop grown in the land bearing Sy. No.117, immediately, PWs 1 and 2 went to the land, saw accused harvesting the paddy crop and questioned him as to how he is harvesting the crop grown by them. Annoyed by this the accused assaulted PW1 with the :4: sickle on the left side of stomach causing him severe bleeding injury. When PW2 went to the rescue of her son PW1, the accused assaulted PW2 also with the same sickle on her left forearm causing her severe bleeding injury. On hearing the screaming sounds of PWs1 and 2, PW3 and others came there and seeing them the accused ran away from the place by throwing the sickle there itself. Immediately, PWs1 and 2 were shifted to the village near the land by PW3 and from there they were taken to primary Health Centre (PHC), Mulbagal, where they were examined and treated by PW9, Dr.S.N. Vijayakumar. Having regard to the nature of the injury suffered by PW1, he was referred to SNR Hospital, Kolar while PW2 was admitted as inpatient in PHC, Mulbagal. PW1 was treated as inpatient in SNR Hospital from 25.11.1998 to 08.12.1998. During treatment Laperotomy operation was done. While PW1 was taking treatment in SNR Hospital, jurisdictional police came there and recorded his statement about the incident as per Ex.P1 and based on the same, case :5: came to be registered and investigation was taken up. The Investigation Officer visited the scene of occurrence, drew up spot mahazar, seized the sickle MO1 from the scene of occurrence, also seized the blood stained clothes of PW1, recorded the statement of witnesses including the injured PW2 apprehended the accused and on completion of investigation filed the charge sheet for the offences punishable under Section 307 and 326 of IPC. On committal of the case, the accused appeared before the Sessions Judge and pleaded not guilty for the charges levelled against him. Prosecution, in order to bring home the guilt of the accused, examined PW1 to PW12 and relied on documentary evidence marked as Exs. P1 toP16 and MOs 1 to 3. The accused denied all the incriminating circumstances appearing against him in the evidence of the prosecution witnesses. He did not choose to lead any defence evidence. His defence was one of total denial and that of false application in the background of civil dispute. It was also his defence that while trying to cut the paddy crop in a hurry PWs 1 and :6: 2 sustained injuries with the weapon in their hands. After hearing both sides and also on assessment of oral as well as documentary evidences, the learned Sessions Judge by the judgment under appeal convicted the accused for the charges levelled against him holding that the prosecution has proved beyond reasonable doubt that the accused committed the acts of assault on PWs 1 and 2 with an intention to take away their lives and by the said acts of assault he caused grievous hurt to both PWs 1 and 2. Aggrieved by the said judgment of conviction and order of sentence, the accused is in appeal before this court.
3. I have heard the learned counsel for the appellant Sri. Raghavendra Reddy, as well as the learned High Court Government Pleader, Sri. Rajesh Rai,appearing for the respondent-State. Perused the records secured from the Trial court.
4. Learned counsel for the appellant contended that the judgment under appeal is highly perverse and :7: illegal as the findings recorded by the learned Sessions Judge are not based on proper appreciation of evidence on record. He contended that in the light of the admitted civil litigation between the accused on the one hand and PWs 1 and 2 on the other hand, the learned Sessions judge ought to have held that the accused has been falsely implicated in the case. He contended that the evidence of PWs 1 and 2 being highly interested and motivated, in the absence of any corroboration, could not have been the basis to come to the conclusion that accused is guilty of the said offence. It is his further contention that having regard to the fact that PWs 1 and 2 went to the land and obstructed the accused from harvesting the crop, it is reasonable to infer that the alleged assault was during a quarrel, in a spur of moment without there being any intention, therefore from the facts and circumstances of the case it cannot be inferred that the alleged act was done with an intention or knowledge likely to cause death of PW1 or PW2. Therefore he contended that the conviction for the :8: offence punishable under Section 307 Of IPC is highly perverse and illegal. He contended that the case of the prosecution that sickle, MO1 was used for assault does not gain corroboration from the medical evidence since doctor who treated PW1 has admitted in the cross- examination the nature of the injury found on the person of PW1 could not be caused by a weapon like MO1, therefore, the use of MO1 is highly doubtful. He further contended that the learned Sessions Judge has recorded the finding that both PWs 1 and 2 sustained grievous hurt only on the basis of the opinion furnished by the doctors who treated them but has failed to see that the injury suffered by PWs 1 and 2 does not fall under any of the circumstances mentioned in Section 320 of IPC to term them as grievous hurt. Therefore he contended that there is no acceptable and legal evidence to establish that PWs 1 and 2 had sustained grievous hurt within the meaning of Section 320 of IPC, as such even if this court were to accept the findings of the Trial Court with regard to acts of assault by the accused, the :9: acts alleged to have been committed by him, at best, may attract offence punishable under Section 324 of IPC. He contended that since the accused has already spent about 20 days in custody and having regard to the subsequent development resulting in the denial of any share to PW2 in the civil suit filed by her for partition in relation to land bearing Sy. No.117, the interest of justice will be met by sentencing the accused to the period of custody already undergone. Therefore, he sought for setting aside of the judgment and order of sentence.
5. On the other hand, learned High Court Government Pleader sought to justify the judgment under appeal and contended that the judgment under appeal does not suffer from any perversity or illegality warranting interference by this court, since the learned Sessions Judge on proper appreciation of evidence has recorded findings which are sound and reasonable regard being had to the evidence on record. He further contended that the fact that PWs 1 and 2 sustained : 10 : injuries on 25.11.1998 is corroborated by the medical evidence and therefore, PWs 1and 2 being injured eye witnesses, their evidence as to complicity of the accused for the injuries suffered by them has been rightly accepted by the learned Sessions Judge and the said finding cannot be found fault with. He contended that having regard to the facts and circumstances of the case, the learned Session judge is justified in holding that the acts of assault by the accused on PWs 1 and 2 was with an intention and knowledge that it is likely to cause the death, therefore, there is no error committed by the learned Sessions Judge in convicting the accused for the offence under Section 307 of IPC. He contended that the description of injuries suffered by PWs 1 and 2 by the medical experts and also the duration of the treatment taken by PW1 as inpatient in the hospital would indicate that the injuries suffered by both of them were grievous in nature as defined under Section 320 of IPC falling under circumstance eighthly. Therefore the learned Sessions Judge is justified in holding the : 11 : accused guilty for the offence punishable under Sections 326 of IPC also. Therefore he sought for dismissal of the appeal.
6. In the facts and circumstances of the case and in the light of the submissions made by both the sides, the points that arise for my consideration are:
1. "Whether the judgment and appeal suffers from any perversity or illegality warranting interference by this court?
2. Whether the learned Sessions judge is justified in convicting the appellant-accused for the offences punishable under Sections 307 and 326 of IPC?"
7. I have bestowed my anxious considerations to the submissions made by both the sides. In the light of their submissions made, I have carefully perused the oral and documentary evidence on record.
8. There is no dispute that PW2 is the elder sister of the accused, while PW1 is the son of PW2. It is also not in serious dispute that father of PW2 and the : 12 : accused died long back when accused was still a minor. It is also an admitted fact that in respect of land bearing Sy. No.117 in Punyahalli Village there was some litigation between PW2 and the accused. PW2 was claiming that her father gifted the said land to her during his lifetime towards harishina kumkuma and since then she has been in possession and enjoyment of the same. She had also filed a suit for permanent injunction. Thus from the above it is clear that there was a civil litigation between PW1 and the accused in respect of the land bearing Sy. No.117 and in that background there was an ill-will. Ill-will being a double edged weapon, would cut either side. It could be a cause for committing an offence and at the same time, it may also be the ground for false implication. Therefore, the court will have to weigh the evidence on record and find out as to in whose favour the balance in this regard tilts.
9. Even according to the allegations made in the complaint as well as the evidence of PWs 1 and 2 on : 13 : the date of alleged incident, the accused was harvesting the paddy crop standing in the land in question. PWs 1 and 2 in their evidence have stated that they had grown the paddy crop on the land and it was being tried to be cut by the accused. The evidence on record does not satisfactorily establish that the PWs 1 and 2 had grown paddy crop on the said land. It is not forthcoming from the records as to whether in the civil suit filed by the PW2 against the accused, there was any interim order of injunction restraining the accused from interfering with the possession of land by PW2. Even according to the evidence of PW2, the said land belongs to her father and it was gifted to her during his lifetime. As noticed supra father of PW2 and accused died when the accused was still an young boy. Admittedly no document evidence the gift in respect of the said land was executed by father of PW2 and accused. Accused being one of the sons of Venkatappa, is also a class I heir and entitled to succeed to the estate left behind by his father. In fact now it is brought to the notice of this court that, in the : 14 : year 2010 PW2 had filed a civil suit in O.S. No.118/2010 against her mother, sister and three brothers for partition and separate possession of 10 items of properties described in the schedule to the plaint, on the file of the Principal Civil Judge and JMFC, Mulbagal, wherein she had contended that land bearing Sy. No.117 described as item No.10 in the said suit was gifted to her by her father towards Harishina Kumkuma which contention had been disputed by the contesting defendants therein including the accused in this case and the said suit came to be disposed of by the judgment dated 30.07.2012 wherein the civil court has negatived the contention of PW2 regarding gift of the said land.
10. In view of the above, it is highly difficult to believe that PWs 1 and 2 had grown paddy crop on the said land. Even according to evidence of PWs 1 and 2, on coming to know of accused harvesting the paddy crop on the land, PWs 1 and 2 went near the land and questioned the accused as to why he is harvesting the : 15 : crop. This must have led to a quarrel. The weapon MO1 is a sickle. Sickle is the one, which is generally used for harvesting the paddy crop. From the very evidence of PWs 1 and 2 it is clear, it is they who went to the land and tried to obstruct the accused from harvesting the crop. The accused was holding the weapon for the purpose of harvesting the crop. Therefore it cannot be said that the accused was armed with weapon, with an intention to takeaway lives of PWs 1 and 2. The incident of assault, having regard to the specific evidence of PWs 1 and 2, appears to have occurred during the course of quarrel in which PWs 1 and 2 tried to obstruct the accused from harvesting the crop. In order to attract the offence under Section 307 of IPC, act must have been committed with an intention or knowledge of taking away the life of the person. The intention being mental state of a person, it has to be gathered from the attending circumstances such as, motive if any, the words if any uttered at the time of the incident denoting the intention on the part of the : 16 : assailant, the nature of the weapon used, part of the body chosen for assault, nature of the injury etc. Having regard to the fact that the incident occurred when PWs 1 and 2 went near the land and obstructed the accused from harvesting the crop, it cannot be said that the accused had any motive. The evidence of PWs 1 and 2 does not indicate as to whether the accused uttered any words at the time of the assault disclosing his mental state. No doubt the weapon said to have been used for assault is sickle and it is a dangerous weapon which is likely to cause death if used. The part of the body chosen for assault was stomach. The medical evidence indicates that PW1 had sustained a stab wound over left Hypo Chondrium, Elliptical in nature with omentum protruding through the wound.
11. Having regard to the facts and circumstances of the case and the evidence on record, in my opinion, the finding of the learned Sessions Judge that the acts of assault by the accused was with an intention or knowledge likely to cause death of either : 17 : PW1 or PW2 is not supported by any cogent and acceptable evidence. The injuries suffered by PW2 is on left forearm with laceration of the extensor Carpi, Ulnaris, tendon. In my opinion, the circumstances brought on record is not sufficient to infer that the accused committed acts of assault with intention or knowledge that he is likely to cause death of either PWs 1 and 2. Therefore conviction of the accused for the offence punishable under Section 307 of IPC is perverse and cannot be sustained.
12. From the medical evidence on record which is not seriously challenged, it clearly established that PWs 1 and 2 had sustained injuries on their person. They were brought to the hospital immediately after the incident of assault. Therefore, PWs 1 and 2 are injured eyewitnesses. Their testimony deserves to be accepted though they may be termed as interested witnesses. There are no reasons for PWs 1 and 2 to exculpate the real culprits by inculpating innocent persons. No doubt there was civil litigation between PWs 1 and 2 on one : 18 : hand and accused on the other hand in respect of the same land. In the absence of any cogent evidence that PWs 1 and 2 were in exclusive possession and enjoyment of the land and had raised paddy crop, it can be said that PWs 1 and 2 had no right to cause obstruction. However on that ground, the accused could not take law into his own hands and cause injuries to PWs 1 and 2. PWs 1 and 2 in their evidence have consistently stated about the acts of assault by the accused on them. Their evidence is mutually consistent and cogent. The report about the incident came to be lodged at the earliest point of time, while PW1 was taking treatment in the hospital. I do not find any reason to discard the testimony of PWs 1 and 2 with regard to the acts of assault by the accused on them.
13. Of course, PW8, Dr. Byrareddy, the doctor who treated PW1 in SNR Hospital, Kolar in his cross- examination has stated that the injury noticed on the person of PW1 is more likely to have been caused by a straight edged weapon like dagger or a knife but not like : 19 : the MO1 sickle. However, PW9, Dr. S.N. Vijayakumar, who treated PWs1 and 2 in PHC, Mulbagal, has stated that the injuries mentioned in the wound certificate Ex.P10 and P11 could be caused with sickle like MO1. Both PWs 1 and 2 have consistently stated that the accused assaulted them with a sickle which he was holding. Therefore, merely on the basis of the answer listed in the cross-examination of PW8, the user of MO1 cannot be doubted. A weapon like MO1 is a dangerous weapon since it could cause death if used.
14. No doubt, PW1 in his oral evidence did not state about the omentum protruding through the wound, but PW2 has stated this fact in her evidence. PW8 Dr. Byrareddy has stated in his evidence that on examination of PW1, he noticed a stab injury 5cm x 3cm on left lower rib. Elliptical in nature with omentum protruding through the wound. According to the evidence of PW8, PW12 was treated as inpatient from 25.11.1998 to 08.12.1998 and during this period PW1 under went Laperotomy operation. According to PW9, : 20 : Dr. S.N. Vijaayakumar, PW2 was inpatient in the hospital for seven days. PW9 has described the injuries suffered by PWs 1 and 2 as grievous in nature. Section 320 of IPC defines grievous hurt. According to this section, the kinds of hurt mentioned thereunder are described as grievous. The said section sets out 8 circumstances in which the hurt could be termed as grievous. The nature of the injuries suffered by PWs 1 and 2 do not fall under any of the circumstances firstly to seventhly under Section 320. According to learned High Court Government Pleader, circumstance 'eighthly' of Section 320 is attracted to the case on hand, as such, the court below is justified in coming to the conclusion that the injuries suffered by PWs 1 and 2 was grievous in nature. To attracted circumstances, 8thly, the hurt must endanger the life or it should cause the sufferer to be in severe bodily pain during the space of 20 days or the sufferer was unable to pursue his ordinary persuit for a period of 20 days. It is nobody's case that the injury suffered by PW2 was endangering her life. The : 21 : evidence of PWs 8 and 9 do not indicate that the injury suffered by PW2 was endangering her life. Even according to the evidence of PW8, PW2 was inpatient in the hospital from 25.11.1998 to 08.12.1998 for about 14 days. PWs 1 and 2 in their evidence have not stated they were unable to follow their ordinary pursuits for a period of 20 days from the date of the incident nor it is the say of PW1 that even after the discharge from the hospital there was bodily pain. It is for the prosecution to have proved that the injury suffered by PWs 1 and 2 were grievous falling under circumstance eighthly of Section 320 of IPC. The accused has a right of silence, as such, there was no duty cast on the accused to disprove any fact. The prosecution in the case on hand has not able to establish that the injuries suffered by PWs 1 and 2 were endangering their lives or on account of hurt suffered by them they were made to suffer severe bodily pain for 20 days or they were unable to follow their ordinary persuits for a period of 20 days on account of such hurt. Therefore the injuries suffered by : 22 : PWs 1 and 2 cannot be termed as grievous hurt within the meaning of Section 320 of IPC. The description of these injuries as grievous by the doctors is without any basis nor it confirms to the statutory provision under Section 320 of IPC. Therefore, finding of the learned Sessions Judge that accused has caused grievous hurt to PWs 1 and 2 with a dangerous weapon is perverse. I am of the considered opinion that the acts of assault by the accused falls under Section 324 of IPC. Therefore the judgment of conviction recorded by the Trial court convicting the appellant for the offences punishable under Section 307 and 326 of IPC is liable to be set aside and in modification of the same, the appellant is liable to be convicted for the offence punishable under Section 324 IPC.
15. As noticed supra, the appellant was in custody for 20days during the investigation. The appellant is none other than the younger brother of PW2 and he is the maternal uncle of PW1. There was civil litigation between them in respect of land bearing : 23 : Sy. No.117. A copy of the judgment dated 30.07.2012 passed by the Principal Civil Judge, JMFC Mulbagal, in O.S. No. 118/2010 indicates that the PW2 had claimed relief of partition and separate possession of her 1/6th share in about 10 items of the land claiming them to be the joint family properties. The trial court has rejected the contention of PW2 that land bearing Sy. No.117 was gifted to her by her father and has held that item No.1 to 7 and 10 are of joint family properties. Nevertheless the trial court has granted 7/36th share in item Numbers 1 to 7 of the plaint schedule to the plaintiffs therein.
16. Having regard to the facts and circumstances of the case and the long drawn civil litigation between the parties and the incident having occurred when PWs 1 and 2 tried to obstruct the accused from harvesting the crop, I am of the considered opinion that the interest of justice would be met if the accused is sentenced for the period of custody already undergone directing him to pay substantive fine : 24 : so that the two injured persons could be compensated. Under section 324 IPC fine leviable is not limited. The appellant also appears to be a man of means and capable of paying substantial amount as compensation to the two injured persons.
17. Therefore, in view of the discussions made above, the appeal is allowed in part. In modification of the judgment of conviction passed by the trial court convicting the appellant for the offences punishable under Section 307 and 326 of IPC, the appellant is convicted for the offences under Section 324 of IPC.
18. The appellant is sentenced for the period of custody already undergone and he is further sentenced to pay a fine of Rs.60,000/-. In default to pay fine, appellant to undergo R.I. for six months.
On realization of the fine amount, a sum of Rs.25,000/- shall be paid to each of PWs 1 and 2 as compensation. Since the records reveal that the appellant has deposited Rs.10,000/- towards fine, the : 25 : appellant is granted four weeks time to deposit the balance amount of Rs.50,000/-.
SD/-
JUDGE Bsv