Karnataka High Court
Narasimha Murthy Alias Murthy vs State By Kyatasandra Police on 2 November, 2012
1 Crl.A.No.972/2007
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 2ND DAY OF NOVEMBER, 2012
BEFORE
THE HON'BLE MR. JUSTICE A.S. PACHHAPURE
CRIMINAL APPEAL No.972 OF 2007
BETWEEN:
NARASIMHA MURTHY ALIAS MURTHY
S/O VENKATAPPA
AGED 28 YEARS
JANUPANAHALLI
TUMKUR.
... APPELLANT
(BY SRI: S N BHAT, ADV)
AND:
STATE BY KYATASANDRA POLICE
TUMKUR.
... RESPONDENT
(BY SRI:KARUNAKAR, HCGP)
THIS CRL.A. IS FILED UNDER SECTION 374(2)
CR.P.C AGAINST THE JUDGEMENT DT.25/5/2007 IN
S.C.NO.144/2004 ON THE FILE OF COURT OF III ADDL.
S.J. AT TUMKUR - CONVICTING THE APPELLANTS/ACCUSED
FOR THE OFFENCES OF ATTEMPT TO MURDER AND CASTIST
ATTACK PUNISHABLE UNDER SECTION 307 IPC AND SECTION
3(1) (X) OF SC/ST (PREVENTION OF ATROCITIES) ACT,
1989 READ WITH SECTIONS 504 AND 506 IPC, AND
SENTENCED APPELLANT/ACCUSED FOR OFFENCE UNDER
SECTION 307 IPC TO UNDERGO RIGOROUS IMPRISONMENT FOR
THREE YEARS AND TO PAY A FINE OF RS.5000/- AND IN
DEFAULT, TO UNDERGO FURTHER SIMPLE IMPRISONMENT FOR
A PERIOD OF 12 WEEKS AND TO UNDERGO IMPRISONMENT FOR
SIX MONTHS AND TO PAY A FINE OF RS.500/- AND IN
DEFAULT TO UNDERGO SIMPLE IMPRISONMENT FOR A PERIOD
2 Crl.A.No.972/2007
OF SIX WEEKS FOR THE OFFENCE UNDER SECTION 3(1)(Z)
OF THE SCs/STs (PREVENTION OF ATROCITIES) ACT READ
WITH SECTIONS 504 AND 506 IPC. THE SUBSTANTIVE
SENTENCES SHALL RUN CONCURRENTLY.
THIS CRL.A. COMING ON FOR HEARING, THIS DAY
THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T
The appellant has challenged his conviction and sentence for the offence punishable under Sections 307, 504 and 506 of IPC and under Sections 3(1)(x) and (xi) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the Act of 1989' for short) on a trial held by the III Addl. Sessions Judge, Tumkur.
2. Sans unnecessary details, the prosecution version, unfolded during the Trial is as under:
The appellant is accused before the Trial Court said to belong to Kuruba community. PW5 - Jayamma is the mother of PW4 - Bhagya and they are said to be belong to Bovi community. The appellant has his house in front of the house of PWs.4 and 5. On 06.08.2004 at about 8.00 p.m. when PWs.4 and 5 3 Crl.A.No.972/2007 were in their house, the appellant said to have abused them in vulgar language as 'Bovi Munde' and when PW5 questioned, the appellant with an intention to eliminate PW5 - Jayamma said to have caused assault with the Chopper and PW5 apprehending injury and to avoid it brought her hands across and sustained injuries to her fingers. The appellant is said to have assaulted with chopper and caused grievous and simple injuries to PW5 - Jayamma. In the incident, PW4 - Bhagya, PW.6 - Ganganna and PW.7
- Papanna intervened and rescued PW5 - Jayamma. They snatched the chopper from the hands of appellant who is said to have ran away from the place. Immediately thereafter, PW5 - Jayamma was taken to the hospital for treatment.
On the next day morning, a complaint came to be filed by PW4 - Bhagya in terms of Ex.P4. PW10 - K Ramesh, Police Sub-Inspector registered a complaint and sent FIR to the Magistrate. During the investigation, the spot mahazar - Ex.P2 was held in the presence of attesting witnesses and MO1 - chopper and MO2 - bloodstained saree were seized. 4 Crl.A.No.972/2007 Statement of the witnesses were recorded and caste certificate - Ex.P7, FSL report - Ex.P8, serology report - Ex.P10 were collected and on completion of the investigation, chargesheet came to be filed against the appellant for the charges aforesaid.
3. During the trial, the prosecution examined PWs.1 to 11 and got marked documents Exs.P1 to P10 and Mos.1 to 4. Statement of the appellant was recorded under Section 313 Cr.P.C. He has taken a defence of total denial. No defence evidence was led. The Trial Court after hearing the counsel for parties and on appreciation of the material placed on record, convicted the appellant for the aforesaid charges and sentenced him to undergo rigorous imprisonment for a period of three years for the offence under Section 307 of IPC and to pay fine of Rs.5,000/- and lesser sentence for other offences. Aggrieved by the conviction and sentence, the present appeal has been filed.
4. I have heard learned Counsel for the appellant and also learned HCGP for the State. 5 Crl.A.No.972/2007
5. The point that arise for my consideration is:
"Whether the appellant has made out grounds to warrant interference in his conviction and sentence for the offence punishable under Sections 504, 506, 307 of IPC and under Sections 3(1) (x) and
(xi) of the Act of 1989?"
6. Learned counsel for the appellant referring to the evidence of injured and other eye witnesses contended that the prosecution has failed to establish the guilt beyond reasonable doubt and he submits that in the evidence there are material discrepancies as regards to manner of incident and that the prosecution has not produced any evidence to show that PW5 - Jayamma has sustained grievous injuries and further more, the production of MO1 - Chopper is doubtful and claims further that there is no material on record even for the offence under Sections 3(1) (x) and (xi) of the Act of 1989. In the circumstances, he submits that the conviction 6 Crl.A.No.972/2007 and sentence ordered by the Trial Court is erroneous and illegal.
7. On the other hand, learned HCGP supporting the judgment and order of the Court below submits that apart from the evidence of injured PW5
- Jayamma, there is evidence of PW4 - Bhagya, the daughter of PW5 and the neighbours PW6 - Ganganna @ Gangabovi and PW7 - Papanna. Hence, he claims that the Trial Court was justified in ordering conviction and sentence.
8. So far as the offence under Section 3(1)
(x) and (xi) of the Act of 1989 is concerned, as could be seen from the complaint - Ex.P4, it is stated that the appellant abused PW5 - Jayamma as 'Bovi Munde' and said to have used vulgar language in abusing her. In the complaint, except the word 'Bovi Munde', other vulgar language used by the appellant has not been stated. Furthermore, though PW4 - Bhagya who was the daughter of PW5 - Jayamma was present in the house, in her evidence, even she does not refer the word 'Bovi Munde' said to have 7 Crl.A.No.972/2007 been uttered by the appellant in abusing her mother. She only states that the appellant used vulgar language in abusing her mother. As could be seen from the evidence of PW6 - Ganganna @ Gangabovi, though he states that there was a galata and that the appellant used vulgar language, nowhere there is reference to the words uttered by the appellant. PW7 - Papanna, has partly turned hostile to the prosecution. He states that he has not stated before the police about the appellant having used the word 'Bovi Munde' and that part of his statement is marked as Ex.P3. So except PW5 - Jayamma, no other witnesses have stated about abusive or insulting words uttered by the appellant. In the said circumstance, the Trial Court ought not to have relied upon the interested version of PW5 - Jayamma so far as abusive words and therefore, in my opinion, conviction of the appellant for the charge under Section 3(1) (x) and (xi) of the Act of 1989 based is the absence of independent evidence is not proper.
8 Crl.A.No.972/2007
9. PW1 - Dr.Suresh Babu examined PW5 - Jayamma on 06.08.2004 at about 10.00 p.m. in the Government Hospital at Tumkur. On examination, he found the following injuries:
"a) Lacerated wound over the
right thumb # middle phalanx;
b) Lacerated wound over left
palm with # index finger at base;
c) Lacerated wound over left
thumb; and
d) Lacerated wound over left
parietal region."
He has certified that Injury Nos.1 and 2 are grievous and Injury Nos.3 and 4 are simple injuries. PW5 - Jayamma was brought to the hospital through her daughter PW4 - Bhagya and PW7 - Papanna, the relative of PW5 - Jayamma with a history of assault. As could be seen from the evidence of PW1 - Dr.Suresh Babu, he states that in the register, the name of appellant is mentioned as the person who caused the assault. So within two hours of the incident, the injured PW5 - Jayamma was in the 9 Crl.A.No.972/2007 hospital with a history of assault and there is reference of the name of appellant who caused injuries referred to supra. From the evidence of PW1 - Dr.Suresh Babu and the injury certificate - Ex.P1, it could be said that PW5 - Jayamma is an injured.
10. Generally, the injured does not implicate an innocent and does not leave a person who has really caused harm. In this context, if the evidence of PW5 - Jayamma is perused, she states in her evidence that on 06.08.2004 at about 8.00 p.m. the appellant came in front of her house and started abusing her in vulgar language and when she questioned as to why the appellant is abusing her, then immediately he started to give blow with chopper which he had concealed on the back side. PW5 - Jayamma, apprehending blow on her head immediately brought her hands across and thereby sustained injuries to her fingers. She also states that the appellant gave a second blow and caused other injuries. But PW5 - Jayamma has not mentioned in the complaint that the appellant had brought 10 Crl.A.No.972/2007 chopper having concealed it on the back side. As could be seen from the complaint, it is mentioned that the appellant with an intention to cause the death caused assault with chopper. So, the question as to whether the chopper was concealed or not is not a material to discard the evidence of injured witness. Except PW4 - Bhagya, the other witnesses do not state as to whether the chopper was snatched from the hands of appellant. The discrepancy that has been brought on record is not a material discrepancy and as there is a long gap of about two years in between the date of incident and the date of recording the evidence, such discrepancies are natural and are not sufficient to reject the case of prosecution. It is relevant to note that the perusal of evidence of PW5 - Jayamma, PW4 - Bhagaya, PW6 - Ganganna @ Gangabovi and PW7 - Papanna it is consistent, cogent and acceptable so far as the assault by the appellant with chopper with an intention to cause assault on the head of PW5 - Jayamma and she having brought her hands in between at the time of assault sustained injuries to her 11 Crl.A.No.972/2007 fingers. So apart from the evidence of PW5 - injured, the other witnesses have supported their version and as could be seen from the cross examination, nothing is elicited to disbelieve their evidence and to falsely implicate the appellant. So the intention of appellant in causing assault with chopper on the head would indicate his intention to kill PW5 - Jayamma. In such circumstances, the scrutiny of material placed on record reveals clinching evidence for the offence under Section 307 of IPC.
11. So far as the other offences are concerned, as the witnesses does not refer to the vulgar language used by the appellant or abusive or insulting words used by the appellant, I do not think that the appellant could be convicted for the offence under Sections 504 or 506 of IPC.
12. Furthermore, as the injured PW5 - Jayamma was in the hospital within two hours of the incident and as PW5 - Jayamma discloses the name of appellant who caused assault, the mere fact that the complaint 12 Crl.A.No.972/2007 has been filed on the next day morning at about 7.00 a.m. itself is not sufficient to hold that the delay has been misused by the prosecution to implicate the accused falsely. So, from the material placed on record as there is abundant evidence for the offence under Section 307 of IPC, the conviction ordered by the Trial Court has to be confirmed and the appellant has to be acquitted of the other charges.
13. So far as the sentence is concerned, the Trial Court has ordered sentence of rigorous imprisonment for three years. Taking into consideration the fact that appellant was aged 25 years at the time of incident and has a family to maintain, I think the imprisonment has to be reduced reasonably.
14. In the result, appeal is allowed in part. Conviction of the appellant for the charge under Sections 3(1) (x) and (xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and under Sections 504 and 506 of IPC are set aside. He is acquitted for the said charges. 13 Crl.A.No.972/2007
Conviction of the appellant for the offence under Section 307 of IPC is confirmed. He is ordered to undergo rigorous imprisonment for a period of two years and to pay the fine as ordered by the Trial Court with default sentence.
As the accused has been brought under warrant, he is ordered to be taken to custody to undergo the sentence.
A copy of this order shall be made available to learned High Court Government Pleader.
Sd/-
JUDGE *bgn/-