Karnataka High Court
Sanna Mallajja vs The State Of Karnataka on 6 June, 2018
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
CRL.A.No.2570/2010
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 6TH DAY OF JUNE, 2018
BEFORE
THE HON'BLE DR.JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL APPEAL NO.2570/2010
BETWEEN:
1. SANNA MALLAJJA S/O DODDA NAGAPPA,
AGE 44 YEARS,
2. SMT KALAMMA W/O SANNA MALLAJJA,
AGE 40 YEARS,
BOTH R/O HOSAHALLI,
KUDLIGI TALUK, BELLARY DIST.
...APPELLANTS
(BY SRI. K. L. PATIL, ADV.)
AND
1. THE STATE OF KARNATAKA
BY HOSAHALLI P.S.
REPRESENTED BY
STATE PUBLIC PROSECUTOR.
... RESPONDENT
(BY SRI.PRAVEEN K.UPPAR, HCGP)
THIS APPEAL IS FILED U/S.374(2) CR.P.C BY THE
ADVOCATE FOR THE APPELLANTS PRAYING THAT THIS
HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE
JUDGMENT AND ORDER OF CONVICTION AND SENTENCE
DATED 08.02.2010 BY THE HON'BLE LEARNED FTC-III
HOSPET IN S.C.NO.91/2008, THERE BY CONVICTING THE
APPELLANTS FOR THE OFFENCE P/U/S 307 OF IPC.
CRL.A.No.2570/2010
:2:
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellants herein were the accused before the Fast Track Court - III, Hosapete (hence forth for brevity referred to as "Sessions Court") in S.C.No.91/2008 for the offence punishable under Section 307 of Indian Penal Code (hence forth for brevity referred to as "IPC"). The Sessions Court by its judgment of conviction and order on sentence dated 09.02.2010 while acquitting both the accused from the offence punishable under Section 504 of IPC held them guilty of the offence punishable under Section 307 of IPC and imposed punishment on them. It is against the said judgment of conviction and order of sentence, the appellants have preferred this appeal.
2. Respondent is being represented by the learned High Court Government Pleader.
CRL.A.No.2570/2010:3:
3. Lower court records called for and same are placed before this Court.
4. The summary of the case of the prosecution is that C.W.1-Smt. Basamma W/o. Sanna Mallajja was given in marriage to accused No.1 (Sanna Mallajja). However, about 20 years prior to the alleged date of the incident, said Smt. Basamma was driven away by her matrimonial home by her husband. From the incident onwards, she started residing in her parents' house at Ujjani with her daughters Manjamma and Siddalingamma. Accused No.1- Sanna Mallajja married accused No.2-Smt. Kalamma and both the accused were living together in their house at Hosahalli of Kudligi Taluk, Ballary District. About 2 years prior to the incident, in a settlement, accused No.1 and his brothers gained 2 acres of agricultural land and 5 cents of an yard (piece of property adjoining the house) to C.W.1-Basamma. Thereafter, on 05.03.2008 said Basamma with an intention to ask for money to perform the marriage of her daughter Manjamma came to CRL.A.No.2570/2010 :4: Hosahalli to meet her husband i.e., accused No.1. On that night, she stayed in the house of P.W.4 - Siddappa, the elder brother of accused No.1. On the next day morning, at about 7.00 a.m., both Basamma and her daughter Siddalingamma (P.W.3) went to the house of the accused and asked the accused to sell the said piece of 5 cents of yard and to pay C.W.1-Basamma, the money. Accused No.1 refused to meet the demand of C.W.1, in turn, he initiated quarrel with her, abused her in filthy language and while stating that he would put an end to her life, he bet her with a "Muddekolu" (a mini wooden club like instrument used for stirring and mixing the millet flour in the preparation of Ragi balls as a food item).
5. It is alleged in the complaint that accused No.1 assaulted her repeatedly with the said Muddekolu and caused fracture injuries to her apart from causing few other injuries on the different parts of the body including her head. She fell unconscious on the spot. She was shifted to the hospital and got treated there. In the CRL.A.No.2570/2010 :5: hospital, she gave a statement to the police which was registered by the complainant-police in their station in crime No.34/2008 against the appellants herein for the offences punishable under Sections 504, 326 r/w Section 34 of IPC. The complainant-police after investigation filed charge sheet against both the accused for the offences punishable under Sections 504, 201, 307 r/w Section 34 of IPC.
6. After hearing the accused on the charge, the Sessions Court framed charges against the accused for the offences punishable under Section 307, 504 r/w Section 34 of IPC. Accused pleaded not guilty and claimed to be tried. In order to prove its case, the prosecution examined 16 witnesses as P.W.1 to P.W.16 and got marked documents at Ex.P1 to Ex.P15 and material objects M.O.1 to M.O.6 were marked. From the accused side, two witnesses were examined as D.W.1 and D.W.2, but no documents were marked as exhibits. CRL.A.No.2570/2010 :6:
7. After hearing the arguments on both side and considering the material placed before it, the Sessions Court by its judgment dated 08.02.2010 convicted both the accused for the offence punishable under Section 307 of IPC and acquitted them of the offence punishable under Section 504 of IPC. It also sentenced both the accused to undergo Rigorous Imprisonment for a period of four years and to pay a fine of `10,000/- each and in default of payment of fine to undergo Simple Imprisonment of six months for the offence punishable under Section 307 of IPC.
8. The learned counsel for the appellants in his arguments while reiterating the grounds taken up by the appellants in their memorandum of appeal vehemently submitted that, among 16 witnesses examined by the prosecution, barring the Medical Doctor and the Investigating Officer, it is only P.W.2 and P.W.3 who have supported the case of the prosecution. Many other material witnesses including the neighbours have totally CRL.A.No.2570/2010 :7: discarded the case of the prosecution. The panchas for panchanama also have not supported the case of the prosecution. Thus, prima facie there was no merit in the prosecution case to be taken as proved. He further submitted that the evidence of P.W.2 and P.W.3 with respect to occurrence of the incident and overt acts alleged against the accused is not in consonance with each other and suffers with lot of contradictions and variations. The evidence of P.W.3 does not inspire any confidence to believe that she was present at the time of the alleged incident.
The learned counsel further submitted that the alleged motive behind the crime is also not established. Merely because the husband is alleged to have refused to pay money to P.W.2 as demanded by her itself cannot be considered as the accused having ill-will or motive to take away the life of P.W.2, who is none else than his wife.
The learned counsel further submitted that, even if it is assumed that there was any such assault, still the CRL.A.No.2570/2010 :8: alleged instrument used in the commission of the alleged act would under no stretch of imagination be called as an instrument with which accused No.1 attempted to take away the life of P.W.2. He also submitted that none of the witnesses have alleged any overt act as against accused No.2 and thus, she has been falsely implicated.
The learned counsel finally submitted that the alleged injuries though multiple in number, but none of them are fatal in nature. Even the injury said to have been inflicted on the head of the injured is only simple in nature. As such, the finding of the Court below that the accused are found guilty of the offence under Section 307 of IPC is totally misconceived and erroneous. As such, it deserves to be set aside and accused deserves to be acquitted.
9. The learned High Court Government Pleader in his arguments submitted that the relationship between the parties that, P.W.2 is the wife of accused No.1 and P.W.3 is the daughter of accused No.1 and P.W.2, is not CRL.A.No.2570/2010 :9: in dispute. The un-controverted evidence of P.W.2 and P.W.3 and the statement made by P.W.4 go to show that, on the alleged date of the incident, which has taken place on 06.03.2008 at 7.00 a.m. both P.W.2 and P.W.3 had been to the house of accused Nos.1 and 2, who were staying in the same house as husband and wife. He further submitted that the evidence of P.W.2 who is none else than the injured victim in the incident has fully supported the case of the prosecution and the evidence of injured witness in the instant case has proved the case of the prosecution beyond reasonable doubt that the alleged incident as narrated by P.W.2 and P.W.3 has taken place and it is accused Nos.1 and 2 who have committed the act and attempted to cause the death of P.W.2.
The learned counsel further submitted that the medical evidence of the treating doctor clearly go to show that the injuries have been inflicted on the vital part of the body. The medical evidence further shows that the CRL.A.No.2570/2010 : 10 : instrument at M.O.1 would able to cause those injuries and in the normal course the injuries caused would have lead to the death of the injured. With this, he submitted that the prosecution has proved the case beyond reasonable doubt and as such, the interference of this Court in the matter is not warranted.
10. Among 16 witnesses examined by the prosecution, P.W.1 (C.W.17) B.S.Gangadhar who is the Secretary of the Gram Panchayat has only stated that, at the request of the police, he has issued revenue extract pertaining to the house of the accused, which he has marked as Ex.P1. The said document could only show that the house where the alleged incident is said to have taken place was the house which the charge sheet shows as the spot of offence.
11. P.W.2 (C.W.1) Basamma in her evidence has stated that accused No.1 who is her husband had deserted her about 30 years back and since then she has CRL.A.No.2570/2010 : 11 : been living in her parents' house at Ujjini. She has got two daughters born out of her wedlock. She has also stated that, when she was carrying second issue, her husband married accused No.2 as the second wife and brought her to their house, which has lead to she (P.W.2) being thrown out of her matrimonial home. She has further stated that, in a settlement, the brothers of her husband and the people of the village gave her 2 acres of land and 5 cents of open space (yard). On the date of the incident, at about 7.00 a.m. joined by her daughter Siddalingamma had been to the house of the accused to request him to put the said open space for sale and to pay her money. At that time, Sri.Siddappa, Prakash and Doddamallappa had also gone there. Her husband, i.e., accused No.1 apart from refusing to meet her demand assaulted her (P.W.2) by making use of a Ragi Mixing Stick (Muddekolu) on her head and left hand causing bleeding injuries on her head and a fracture of her left arm bone. He also assaulted her with the same CRL.A.No.2570/2010 : 12 : instrument on her leg causing fracture of the bone and she fell unconscious. Siddappa brought Mallappa, the brother of the accused who enquired accused No.1, for which, the accused stated that he has beaten his wife. The witness further stated that she was shifted to Hosahalli Hospital and a case was registered at her instance, which complaint she has identified as Ex.P2. The witness has identified M.Os.2, 3 and 4 respectively. She was subjected to a detailed cross-examination from the accused side wherein she adhered to her original version.
12. P.W.3 (C.W.2) Siddalingamma the daughter of P.W.2 in her evidence has supported the case of the prosecution, stating that she had accompanied her mother to the house of the accused on the date of the incident. She has stated that accused No.1 apart from abusing her mother in filthy language also threatened to kill her and assaulted her by using Muddekolu causing bleeding injuries and fractures. At that time, accused CRL.A.No.2570/2010 : 13 : No.2 had held P.W.2 while accused No.1 was beating her. The witness has further stated that while accused held her mother to beat, she came out of the house to alarm the people outside. C.W.3 and C.W.4 went to that place and shifted her injured mother to the hospital. A complaint was given by her before the complainant police in that regard. Even this witness has also identified the articles at M.Os.1 to 4. She was subjected to a detailed cross-examination wherein she adhered to her original version.
13. P.W.4 (C.W.3) Siddappa elder brother of accused No.1 apart from stating his relationship with the accused and the injured has stated about the settlement wherein 2 acres of land and 5 cents of open space was given to P.W.2, the first wife of accused No.1. He has stated that, when P.W.2 had been to the house of the accused for requesting him to put the said open space for sale, he was not present and he has not seen it. He has pleaded his ignorance about the allegation that accused CRL.A.No.2570/2010 : 14 : No.1 had assaulted P.W.2. He also denied that he had made any statement to the police in that regard. In this aspect, he was treated as hostile and was permitted to be cross-examined by the prosecution. However, the prosecution could not elicit any further details from him.
14. P.W.5 (C.W.6) Shantamma and P.W.6 (C.W.7) Dhavalappa who were examined by the prosecution as neighbours who had rushed to the house of the accused after hearing the noise of the incident, have abandoned the case of the prosecution by stating that they were not aware of the alleged incident. Even after cross-examining them by treating the witnesses as hostile, the prosecution could not get any support from them.
15. P.W.7 (C.W.12) Gangamma, the mother of P.W.2 in her evidence had made it clear that, she is not an eye-witness to the incident, but she came to know about the incident subsequently. She has only stated that she came to know that accused No.1 had assaulted CRL.A.No.2570/2010 : 15 : his daughter. However, she has stated that blood stained cloths worn by her daughter at the time of the incident have been handed over to the police by her. She has identified the cloths at M.Os.2 to 4. She has further stated that she came to know that her daughter had been to the house of the accused to request him to give money for the performance of the marriage of her daughter and that, she was assaulted by accused No.1. In her cross- examination from the accused side, she has given some more details that, when she came to know about the alleged incident. She has not admitted as true the denial suggestions made to her.
16. P.W.8 (C.W.15) Dr.H.S.Geetha in her evidence has stated that, while on duty as Senior Specialist, Government Hospital, Chitradurga, on 06.03.2008 she has examined the injured Smt.Basamma, who was brought to her from Primary Health Centre with the history of assault. Injured was subjected to both clinical and radiological diagnosis and noticing that the injured CRL.A.No.2570/2010 : 16 : had sustained two fractures of two bones on her left wrist and left leg, she was treated in their hospital till 15.03.2008, when she was discharged. The witness has identified X-ray reports and films verified by her at Exs.P7, P8(a) and P(8b).
17. P.W.9 (C.W.4) Prakash has stated that P.W.2 is his aunty, as such P.W.3 is his sister. The said P.W.2 in order to pool the funds to perform the marriage of her daughter had been to his village one evening and stayed in the house of his uncle Siddappa. On the next day morning P.W.2 went to the house of the accused and asked for paying money to her by retaining the yard (open space) by him. Hearing the noise, himself and his uncle went to their house and found P.W.2 fallen on the floor sustaining injuries to her head, left hand, left leg and other parts of the body. Joined by P.W.4, he shifted the injured to the Government Hospital at Hosahalli. He has also stated that when he went to the house of the accused, he saw Muddekolu at M.O.1 in the hands of CRL.A.No.2570/2010 : 17 : accused No.1. Since, he stated that he has not seen the said accused assaulting P.W.2, at the request of the prosecution he was treated as hostile and was permitted to be cross-examined by the prosecution. In the said cross-examination, the witness has stated that the blood stain spilled in the house were cleaned by accused No.2 with the cloth and had kept the said cloth in the bathroom of the house. In his cross-examination the witness has stated that the police recorded the complaint of P.W.3 in the hospital. He denied the suggestion that he had brought P.W.2 at his village on his motorcycle.
18. P.W.10 (C.W.5) Ratnamma, the sister-in-law of accused No.1 stated that, she is the neighbor of the said accused No.1 and that P.W.2 had come to their village to claim the partition in the property. However, about the incident she pleaded her ignorance. As such, she was treated as hostile. The prosecution cross-examined her, but could not get any support from her.
CRL.A.No.2570/2010: 18 :
19. P.W.11 (C.W.8) Ningappa and P.W.12 (C.W.9) G. Chandranna were examined by the prosecution as panchas for the scene of offence (spot panchanama). However, except identifying their signatures in the said panchanama which was marked at Ex.P-11, neither of them supported the case of the prosecution any further. P.W.13 (C.W.11) Basavaraj & P.W.14 (C.W.10) Gangadhar were examined by the prosecution depicting them as panchas for the cloth seizure panchanama at Ex.P-6. These witnesses also except identifying their signatures in the said panchanama did not support the case of the prosecution any further.
20. P.W.15 (C.W.16) Dr.Kambalimath in his evidence has stated that, as a doctor of Primary Health Centre at Hosahalli he has examined Smt. Basamma W/o Sannamallaja (P.W.2) on 06.03.2008 at 8:30 a.m. who was brought to him by one Sri. Prakash. He has given the details of the injuries found on the person of the injured and stated that among the seven injuries noticed by him, CRL.A.No.2570/2010 : 19 : five injuries were simple in nature and two injuries were grievous. Identifying the wound certificate issued by him at Ex.P-12 he has stated that he advised the patient to be taken to the District Hospital at Chitradurga for higher treatment. After examining M.O.1 shown to him in the Court, he stated that, if a person is severely assaulted on his head with the said instrument, there is possibility of assaulted dying due to the same. He was subjected to a detailed cross-examination from the accused side to show that the injury found on the person of the injured could not be possible to be caused with M.O.1. However, the witness has not admitted those suggestions as true, but remained adhered to his original version.
21. P.W.16 (C.W.18) N.Lalyanaik, then Police Sub- Inspector of the complainant police station has stated that based on a telephonic information received from the Medical Officer at Hosahalli at 8 'O' clock on 06.03.2008, he went to the said hospital and recorded the statement of P.W.2 and registered the said statement in the station CRL.A.No.2570/2010 : 20 : in Crime No.34/2008 for the offence punishable under Sections 504, 324, 326 r/w. Sec.34 of IPC. After submitting the FIR as per Ex.P-13 he also received a written complaint lodged by P.W.3, based upon which he incorporated Section 307 in the said crime. Then he visited the scene of offence and drew the scene of offence panchanama as per Ex.P-11 in the presence of panchas. He also seized from the spot a blood stained Lungi, Muddekolu and pieces of bangles which are M.O.6, M.O.1 and M.O.5 respectively. He recorded the statement of C.W.4, C.W.9 and apprehended the accused and produced them before the Court. On the subsequent day, he also recorded the statement of P.W.5, P.W.6, P.W.7 and P.W.10 and seized M.Os.2 to 4 by drawing seizure panchanama as per Ex.P-6. He seized the articles and sent to the FSL Laboratory at Davanagere on 13.03.2008 for its examination. He recorded further statement of P.W.2 on 10.04.2008 and statement of C.W.13 and C.W.14. On 06.04.2008 he collected the wound certificate CRL.A.No.2570/2010 : 21 : from P.W.15 as per Ex.P-12 and X-ray report and films from P.W.8. On 11.04.2008 collecting the revenue extract of the house of the accused from the Gram Panchayat Secretary as per Ex.P-1, he completed the investigation and filed the charge sheet against the accused. Stating that he has submitted FSL report in the Court, he has identified it at Ex.P-15. He was subjected to a detailed cross-examination from the accused side, however the witness adhered to his original stand.
22. The relationship between the accused and P.W.2 and P.W.3 is not in dispute. It is not in dispute that P.W.2 the alleged victim/complainant in the case is the first wife of accused No.1. P.W.3 is their daughter and accused No.2 is the second wife of accused No.1. The undisputed evidence of the parties also reveals that P.W.2 has been living separately from her husband since about 30 years along with her parents at the place called Ujjani. The undisputed evidence of none else than the elder brother of accused No.1, i.e., P.W.4, P.W.7 and P.W.9 CRL.A.No.2570/2010 : 22 : shows that the brothers of accused No.1 and the villagers had given land measuring 2 acres and an open space measuring 5 guntas to P.W.2 in a settlement. The evidence of P.W.2 and P.W.3 that on the previous day of the incident, both of them had come to Hosahalli and stayed in the house of P.W.4 Siddappa, the elder brother of accused No.1 and they were intended to meet the accused to request him to make financial arrangement for the marriage of his and P.W.2's daughter is not denied or disputed. Both P.W.2 and P.W.3 have stated that on the next day which is on 06.03.2008 at about 7:00 a.m., they went to the house of the accused where P.W.2 asked her husband (accused No.1) to retain the open space with him and pay her its value so that she could perform the marriage of her daughter.
23. According to both these witnesses, accused No.1 apart from refusing to meet the said demand, retaliated by abusing P.W.2 in filthy language and also assaulted her. P.W.2, the victim has given a clear account CRL.A.No.2570/2010 : 23 : in her evidence as to how she was assaulted by her husband, i.e., accused No.1. She has specifically stated that taking Muddekolu in his hand, her husband assaulted on her head, left hand and left leg causing bleeding injuries on her head and fractures of bones of the left hand and left leg. She further stated that, both the accused jointly assaulted her. Sri.Siddappa going from there and brought his brother Mallappa to the place and enquired accused No.1 and he stated that he has assaulted his wife. The said narration of P.W.2 in her evidence how she was assaulted and who came and enquired accused No.1 has not been denied in her cross- examination. Even though, she was subjected to a detailed cross-examination from the accused side wherein further details regarding the incident was elicited, but no specific denial regarding the occurrence of the incident that too particularly in the manner as stated by P.W.2 in her examination-in-chief, nowhere been denied in her cross-examination. Thus, the evidence of the victim in the CRL.A.No.2570/2010 : 24 : incident who is none else than the wife of accused No.1 regarding the occurrence of the incident and the manner how it occurred has remained undisputed.
24. The evidence of P.W.2-victim is further corroborated by the evidence of P.W.3-Siddalingamma the daughter of P.W.2 and accused No.1. This witness apart from giving details of the incident and stating that her father i.e., accused No.1 assaulted her mother with Muddekolu on her head, left hand and left leg causing bleeding injuries and fractures has also stated that her father while assaulting her mother stated that he would kill her. This witness has stated that when her mother was being held by accused, she came outside to alarm people and to seek their help. She has also stated that she saw the accused assaulting her mother. In her cross-examination, she has stated that when they went to the house of the accused, the door was open and there were 15 people in front of the house of the accused. Subsequently, in the very same cross- CRL.A.No.2570/2010 : 25 : examination, she has also stated that, by the time she came back to the spot by bringing C.W.4, the door of the house was closed and some other people were there in front of the house. Since the door was bolted from inside they broke open the door only to find that P.W.2 had fallen on the ground sustaining injuries.
25. It is on this part of the evidence of P.W.3, the learned counsel for the accused in his argument submitted that the evidence of P.W.3 is contradictory within itself. At one breadth she has stated that the door was open and on the other breadth she has stated that the door of the house was closed. He also stated that, even according to this witness, already there were 15 people in front of the house of the accused, it cannot be believed that the accused assaulted his wife in the house. The said argument of the learned counsel for the appellant is not acceptable for the reason that, a reading of the evidence of P.W.3 clearly go to show that, her statement that the door of the house of the accused was CRL.A.No.2570/2010 : 26 : opened and some 15 people were found in front of the house was at that time when P.W.2 and P.W.3 went there to place their request for money, i.e., before happening of the incident. The further statement that the door of the house was closed and bolted from inside was subsequent to the incident by which time, she had left the place to alarm neighbours and to bring them. When she came back along with P.W.4, which was after the incident, the door of the house was found bolted from inside. Therefore, the evidence of P.W.3 is clear in that regard and no contradiction as alleged by the learned counsel for the appellant can be noticed therein.
26. The further argument of the learned counsel for the appellant that there is contradiction between the evidence of P.W.2 and P.W.3 as to who brought Prakash is also not acceptable for the reason that, according to P.W.2, Siddappa had brought him. P.W.3 has stated that she brought Prakash to the spot. However, it is to be noticed that, even according to P.W.2, the said Siddappa CRL.A.No.2570/2010 : 27 : was inside the house before he left the house. Whereas according to the very same P.W.2, her daughter P.W.3 was outside the house. As such, after P.W.3 has also accompanied Siddappa in bringing Prakash, the same would not be to the knowledge of P.W.2. However, the very same P.W.2 in her cross-examination has stated that, it was her daughter who had gone to bring her uncles to the spot. Thus, the evidence of P.W.2 and P.W.3 on this point cannot be considered as contradictory to each other.
27. P.W.4 the other elder brother of accused No.1 in his evidence has stated that, when P.W.2 went to the house of accused No.1, he was not there. By stating so, he has admitted that P.W.2 had been to the house of accused No.1, though he (P.W.4) was not there at that time. Even though the said witness has not supported the case of the prosecution about the alleged incident of both the accused assaulting P.W.2, but his statement that CRL.A.No.2570/2010 : 28 : P.W.2 had been to the house of accused No.1 cannot be discarded.
28. The evidence of the doctors, i.e., medical evidence of P.W.8 and P.W.15 corroborates the evidence of P.W.2 and P.W.3. P.W.15 is the doctor who examined the injured P.W.2 within an hour after the incident and has noticed seven injuries on her person. He has recorded the details of injuries in his wound certificate at Ex.P12, which shows that, when P.W.2 was examined by the doctor, the following injuries were noticed on her person.
i) Lacerated wound over venter of head 4cm x 1cm scalp depth. Bleeding.
ii) Lacerated wound left parietal area 4cm x 1cm scalp depth.
iii) Lacerated wound left parietal area
(posteriorly) 3cm x 1cm scalp depth.
iv) Lacerated wound ant. aspect of left leg mid
1/3rd 1cm x 1/2cm x skin depth.
CRL.A.No.2570/2010
: 29 :
v) Lacerated wound ant. aspect of left leg lower
1/3rd 1cm x ½ cm x skin depth.
vi) Pain, tenderness swelling, antero-lateral
aspect of mid 1/3rdof left leg.
vii) Pain and tenderness, swelling, left wrist.
He has also referred to X-ray reports and stated that those reports reveal fractures of left wrist at its lower end of radius and fracture of left leg at the upper end of left tibia. He has opined that among seven injuries noticed by him, injury Nos.1 to 5 were simple in nature and injury Nos.6 and 7 were grievous in nature. His evidence regarding the injury noticed on the person of the injured P.W.2 and his opinion regarding the material object at M.O.1 that it can cause those injuries, could not be shaken in his cross-examination.
The evidence of P.W.8, Dr.H.N.Geetha, who treated the injured in the District Hospital at Chitradurga also corroborates the evidence of P.W.2 and P.W.15 goes to show that, being referred by Primary Health Centre, CRL.A.No.2570/2010 : 30 : Hosahalli, the injured was brought to her hospital where she (P.W.8) treated the injured. She has also referred to the X-ray reports and films at Ex.P7, P8(a) and P8(b) and stated that the injured had sustained fracture of her left wrist and left leg. She has also stated that article M.O.1 can cause fracture injuries sustained by P.W.2. Thus, the evidence of P.W.2 and P.W.3 corroborated by the medical evidence of P.W.8 and P.W.15 supported by documentary evidence at Ex.P7, P8(a), P8(b) and P.12 clearly go to show that those injuries were caused to P.W.2 only on the assault meted to her by her husband accused No.1 in his house making use of Muddekolu at M.O.1.
29. It was also the argument of the learned counsel for the appellant that, no overt act or involvement has been attributed to accused No.2. The said argument is not acceptable for the reason that, it is not in dispute that the said accused No.2 being the second wife of accused No.1 was residing with accused No.1 in their house at Hosahalli. It is not the defence of the accused CRL.A.No.2570/2010 : 31 : that, on the date of the alleged incident, accused No.2 was not in the said house. P.W.2 injured in her evidence has clearly stated that she was assaulted jointly by accused Nos.1 and 2. P.W.3 in her evidence has specifically stated that while accused No.1 was assaulting her mother, accused No.2 was holding her mother and enabling accused No.1 to assault her.
The said evidence of both P.W.2 and P.W.3 alleging overt acts upon accused No.2 has not been specifically denied in their cross-examination. As such, the evidence of P.W.2 and P.W.3 also establishes that in the act of assault upon P.W.2 by accused No.1, the other accused, i.e., accused No.2 has also equally taken part in the crime. Thus, both the accused by jointly assaulting P.W.2 have shown their participation in the commission of the crime.
30. The learned counsel for the appellant in his argument also submitted that the evidence of P.W.3 cannot be believed since she is the daughter of P.W.2 as CRL.A.No.2570/2010 : 32 : such an interested witness. This argument also is not acceptable for the reason that, undisputedly the said P.W.3 is not only the daughter of P.W.2 but also the daughter of accused No.1. Thus, being a daughter of both accused No.1 and P.W.2, she is expected to have equal interest for both accused No.1 and P.W.2. Further, as observed above, her evidence has come in a natural manner and she has given an account of what made her to accompany P.W.2 and how she has witnessed the incident. As such, her evidence cannot be discarded calling it as the evidence of an interested witness.
31. Regarding the place of incident and recovery of cloths of P.W.2, though panchas to the panchanama at Exs.P11 and P6 have not supported the case of the prosecution, but P.W.7 the mother of P.W.2 has stated that the cloths of the injured which are at M.O.2 to M.O.5 were given to the police by her. Secondly, P.W.9 who is the neighbour of accused No.1 as well as son of the elder sister of accused No.1 has categorically stated that, when CRL.A.No.2570/2010 : 33 : he went to the house of the accused after coming to know about the incident, he saw accused No.1 standing next to the injured P.W.2 (by then had fallen on the floor) holding Muddekolu at M.O.1 in his hand. The Investigating Officer has spoken about he drawing a seizure panchanama and seizing the said Muddekolu from the spot under panchanama at Ex.P11.
32. P.W.9, an independent witness has noticed the said Muddekolu as the one, which was held by accused No.1 at the time of the incident. Therefore, even though the panchas to the seizure panchanama have not supported the case of the prosecution, the evidence of other witnesses including P.W.2, P.W.3, P.W.7 and P.W.9 establishes that the place of offence was the house of accused No.1 in Hosahalli and articles M.O.1 to M.O.6 were seized by the police.
33. Regarding motive behind the commission of the crime, the prosecution version is that, since P.W.2 asked CRL.A.No.2570/2010 : 34 : to pay money to perform the marriage of her daughter, being enraged, the accused attempted to kill her. As observed above, the evidence of P.W.2, P.W.3, P.W.4 and P.W.9 clearly establishes that the brothers of accused No.1 and the villagers had given 2 acres of land and a open space (yard) to P.W.2. She wanted to pool the fund to perform the marriage of her daughter, for which, she approached her husband on the date of the incident asking him to retain the said open space of 5 cents for himself and to pay her money or to sell that open space and to pay her the sale amount. Enraged by this, accused assaulted her. This specific statement attributed motive for the acts of the accused has not been specifically denied from the defence side. Therefore, the motive behind the commission of the crime is also evident.
34. The learned counsel for the appellant/accused in his argument finally submitted that even if it is taken that the incident as alleged by the prosecution has occurred, still it would fail to attract the offence CRL.A.No.2570/2010 : 35 : punishable under Section 307 of IPC. The learned counsel submitted that the prosecution has failed to establish that the act of the accused in assaulting P.W.2 with an intention to take away her life and the alleged article used in assaulting her is not a weapon. Had really the intention of the accused were to take away the life of P.W.2, then they would have made use of different weapon and succeeded in their attempt.
35. The learned Government Pleader in his argument submitted that the very act of the injured sustaining bleeding injuries on her head itself go to show that the accused wanted to kill her. Further, P.W.3 also has stated that accused No.1 stating that he would kill P.W.2 has assaulted her.
36. In order to attract Section 307 of IPC, the prosecution is required to establish that, but for the failure of an attempt by the accused, the victim would have been killed in the incident. In the instant case, it is CRL.A.No.2570/2010 : 36 : not the case of the prosecution that the accused hatched a plan or made any conspiracy to commit the murder of P.W.2. It is also not the case of the prosecution that the accused had the knowledge of P.W.2 and P.W.3 gone to the house of the accused on the date of the incident. On the other hand, according to the prosecution without any intimation to accused Nos.1 and 2, P.W.2 and P.W.3 had been to their house. In the said house also had really the intention of the accused was to cause murder of P.W.2, then the accused would have various other instruments or weapons, like knife or sickle to use it as an instrument to assault P.W.2 and ensure her death. On the contrary, the material object used by the accused is a simple mini club like, kitchen instrument, which would be used in mixing and stirring of Millet flour in the preparation of Ragi balls. Thus, in the circumstance of the case the object cannot be called as weapon or instrument, which can be made use as a weapon in causing the death of a person.
CRL.A.No.2570/2010: 37 :
37. The wound certificate at Ex.P12 also go to show that the injuries sustained by the injured were in the nature of lacerated wound on the vital part of the body. However, the scalp depth bleeding lacerated wound measuring 4cm x 1cm though was found on the head of P.W.2, but the said injury was opined as simple injury by P.W.15. Thus, the nature of injury and how the said injury was caused to P.W.2 and the material object used in the commission of the said injury cannot lead to any inference that accused had any intention to cause the death of P.W.2. As such, the act of the accused though is a criminal act of voluntarily causing grievous hurt to P.W.2, but the same is short of an attempt to commit her murder. It is on this point, the Sessions Court erroneously came to the conclusion and was carried away by the evidence of P.W.3 that accused No.1 stated that he would kill P.W.2. The said finding of the Sessions Court which has held both the accused guilty of the offence CRL.A.No.2570/2010 : 38 : punishable under Section 307 of IPC deserves to be modified and confined to Section 325 of IPC.
38. The defence of the accused that P.W.2 had come to Hosahalli and she fell down on the way, which caused the injury upon her person has been categorically denied by the prosecution witnesses including P.W.2 and P.W.3, P.W.9 to whom those suggestions were made. Though P.W.2 stated that she had come to the village on the motorcycle, but her evidence does not mean that, on the previous day to the incident when she came to the said village, it was on the motorcycle of P.W.9. Similarly, P.W.9 has specifically denied that he had brought P.W.2 to their village on the previous day on his motorcycle. The medical evidence does not support the contention of the accused that the injuries sustained by P.W.2 can be caused by a fall from the motorcycle. Thus, the defence of the accused explaining the injury caused upon P.W.2 would not hold good.
CRL.A.No.2570/2010: 39 :
39. Therefore, from the analysis made above, it is clear that the prosecution though could not able to establish the offence punishable under Section 307 of IPC against the accused, but it has proved its case beyond reasonable doubt to hold both the accused guilty of the offence punishable under Section 325 of IPC.
40. Accordingly, I proceed to pass the following order:
ORDER The appeal is allowed in part. The judgment of conviction and order on sentence dated 09.02.2010 passed by the Fast Track Court III, Hosapete in S.C.No.91/2008 is modified to the extent that accused No.1-Sanna Mallajja S/o Dodda Nagappa and accused No.2-Smt.Kalamma W/o Sanna Mallajja who were convicted for the offence punishable under Section 307 of IPC are now held guilty only for the offence punishable under Section 325 of IPC.CRL.A.No.2570/2010
: 40 :
Consequently, the sentence imposed by the Sessions Court for the offence punishable under Section 307 of IPC is substituted to the sentence for the offence punishable under Section 325 of IPC, under which both accused Nos.1 and 2 are sentenced to undergo simple imprisonment for a period of three years and to pay a fine of `10,000/- each. In default of payment of fine amount, the accused shall undergo simple imprisonment each for a period of six months.
Rest of the terms of the order on sentence passed by the Sessions Court remains unaltered.
Registry to send a copy of this judgment along with LCR to the Court below forthwith for execution of the order.
Sd/-
JUDGE yan/mbs/svh