Karnataka High Court
Chanda Pasha @ Pappaya Chanda vs State Of Karnataka on 24 January, 2013
1 Crl.A 198/06
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 24TH DAY OF JANUARY, 2013
BEFORE:
THE HON'BLE MR. JUSTICE A.S.PACHHAPURE
CRIMINAL APPEAL No.198 OF 2006
BETWEEN:
Chanda Pasha @ Pappaya Chanda,
S/o. late Kalamastan Sab @ Mastan Sab,
57 years,
R/o. Poolsha Mohalla,
4th Cross, Opp. Urdu School,
Bommadinager, Kolar. ... APPELLANT/S
[By Sri. B.M. Mohan Kumar, Adv.- Amicus Curiae]
AND:
State of Karnataka,
Rep. by S.P.P.,
High Court,
Bangalore. ... RESPONDENT/S
[By Sri. Satish R. Girji, HCGP.]
***
This Crl.A. is filed u/Section 374(2) Cr.P.C.
against the Judgment dt.1-08-05 passed by the I
Addl. S.J., Kolar, in SC No.192/04 - convicting
the appellant-accused for the offence punishable
under Section 307 of IPC and sentencing him to
2 Crl.A 198/06
undergo rigorous imprisonment for 7 years and to
pay fine of Rs.2000/-, in default to undergo
rigorous imprisonment for 6 months.
This Crl.A. coming on for Final Hearing, this
day the Court delivered the following:
JUDGMENT
The appellant has challenged his conviction and sentence for the offence punishable under Section 307 IPC., on a trial held by the Addl. Sessions Judge, Kolar.
2. The facts relevant for the purpose of this appeal are as under:
P.W.1-Ansar Khan, the injured was a petty businessman and there was enmity between the appellant/accused and P.W.1. On 10/11.07.2004, at 12.10 a.m., P.W.1 was attending "kavvali"
programme arranged in the village. At that time, the appellant holding a knife said to have assaulted P.W.1 on his face, as a result he sustained injury up to the lips. Again the 3 Crl.A 198/06 appellant/accused assaulted P.W.1 with the knife and thereby, he sustained injury on the back and thereafter the appellant escaped from the place of the incident. P.W.1-injured was taken to the hospital and on intimation, the Police appeared and he filed the complaint Ex.P1, which came to be registered in crime No.59/04 for the offence punishable under Section 307 IPC. During the investigation, spot mahazar-Ex.P3 was held and the statements of the witnesses were recorded. The cloths on the body of the injured-M.Os.1 to 3 were seized and the M.O.4-knife was recovered and shirt M.O.5 was seized. After collecting the injury certificate, a charge sheet came to be filed against the appellant for the offence punishable under Sections 307, 324 and 506 IPC.
During the trial, the prosecution examined P.Ws.1 to 9 and in their evidence documents Exs.P1 to 16 and M.Os.1 to 5 were got marked. The statement of the appellant was recorded under 4 Crl.A 198/06 Section 313 Cr.P.C. He has taken a defence of total denial. But, no defence evidence was led.
3. I have heard learned Amicus Curiae for the appellant and learned High Court Government Pleader.
4. The point that arises for my consideration is?
Whether the appellant has made out any grounds to warrant interference in the Judgment and Order impugned in this appeal?
5. P.W.1-Ansar Khan is the injured and P.W.2-Maula is his brother, who went to the hospital after hearing assault on his brother. P.W.3-Sadiq Pasha was examined to prove the incident and he is an eye-witness. Though P.W.5- Syed Hathik Ahamad is an eye-witness to the prosecution, he has not supported the case of the prosecution.
5 Crl.A 198/06
6. The scrutiny of the evidence of P.W.1- Ansar Khan reveals that on the date of the incident i.e., on 10.07.2004 at about 11.30 p.m., he had gone to see "Kavvali" programme arranged and the appellant took him to a near by place and assaulted him with some object. He sustained injury on the cheek, lips and also on the buttock. He was unable to identify the weapon. He states that the accused escaped from the place of the incident and he was taken to the hospital by his brother Maula and another and was treated in different hospitals.
7. As could be seen from the cross-
examination of P.W.1, the defence is that P.W.1- injured himself assaulted the accused, who sustained injury and that the injured while chasing the accused fell down and sustained the injuries. The injury certificate of the accused is also produced at Ex.P8. He was taken to the hospital on 11.07.2004 at 2.45 p.m. and found to 6 Crl.A 198/06 have sustained injury over the right thumb of about 2" blood stain and there were no other injuries. As could be seen from the history, it is stated that he sustained self-injury by a dragger. These injuries are simple. If this injury certificate is looked into in the context of the defence taken in the cross-examination of P.W.1, the presence of the appellant [accused] at the place of the incident is not in dispute. The observation made in the injury certificate-Ex.P8 would lead to an inference about the presence of the accused at the place of the incident. Though it is contended by the learned Amicus Curiae that it is not a self-inflicted injury, the perusal of the statement of the witnesses does not reveal that the accused sustained alleged injuries at the hands of P.W.1-injured. When the presence of the accused at the place of the incident is not in dispute, the question would be only with regard to the injuries sustained by P.W.1 and to prove the 7 Crl.A 198/06 injury sustained by P.W.1, the prosecution has examined the doctor-P.W.6, who issued the certificate-Ex.P6 and it reveals the history as an incident of assault on 11.07.2004 at 12.30 a.m. due to an assault by Chand i.e., the accused using knife. It is relevant to note that within 15 minutes of the incident, the injured was in the hospital and the name of the accused was revealed before the doctor as an assailant. Injury No.1 was a cut wound of 14 cm. length extending from 2 cm. above and lateral to the outer canthus of left eye to the upper lip. He also sustained lacerated wound of 2 x 1 x 0.5 cm. on the lateral and outer aspect of left buttock. The doctor-P.W.7 has no interest in either of the parties. The name of the accused was recited in the history column as stated by P.W.1. Such evidence assumes importance and the evidence of P.W.7-doctor corroborates the evidence of the injured-P.W.1. Later, the injured was taken to Devaraj Urs Medical College and 8 Crl.A 198/06 Hospital and was examined by one Dr.Vedamurthy, Casualty Medical Officer and the injury certificate is at Ex.P16.
8. Learned Amicus Curiae contended that Ex.P16 reveals the date of the incident as 09.07.2004 due to the assault and therefore claimed that the evidence of the injured cannot be accepted. The perusal of Ex.P16 reveals that the injured was examined on 11.07.2004 at 2.15 a.m. i.e., immediately after the incident and thereafter, it appears that the doctor, who issued the injury certificate-Ex.P16 has committed a mistake by mentioning the date of the incident as 09.07.2004 instead of 11.07.2004. A mere mistake committed by the doctor while issuing the injury certificate-Ex.P16 is not sufficient to discard the evidence of P.W.1 and other material placed on record.
9 Crl.A 198/06
9. The prosecution has also examined P.W.3- Sadiq Pasha, who was also present at the time and at the place of the incident occurred and he saw the accused assaulting with the knife and running away from the place of the incident. He states about the injury caused to P.W.1 on the buttock and in the cross-examination it is elicited that there was also an injury on the cheek. He is an independent witness and not a relative of P.W.1. Therefore, the evidence of P.W.1 is corroborated by the evidence of P.W.3 and also the medical evidence.
10. An injured generally does not implicate an innocent and do not leave the person who really caused the harm. If the material placed on record is accepted on the basis of the principle aforesaid, this much of material is sufficient to hold that the appellant has caused the assault on P.W.1 and thereby P.W.1 sustained injuries mentioned in the injury certificate. Though the 10 Crl.A 198/06 attesting witnesses for the recovery of the weapon have not supported the case of the prosecution, there is no reason to discard the evidence of the Police Officer, who recovered the weapon from the appellant. The doctor has also opined that the injury sustained by P.W.1 could be caused by the weapon like M.O.4-knife. Though the attesting witness for the mahazar Ex.P3 has not supported the case of the prosecution, the evidence of P.W.9-Investigating Officer is sufficient as he stated about the recovery of the weapon from the appellant. There is no reason to disbelieve the evidence of P.W.9 so far as the recovery of M.O.4- knife. The prosecution has examined the attesting witnesses, the doctor and also the Investigating Officer.
11. So far as the assault is concerned, it is relevant to note that the appellant held a dangerous weapon like M.O.4-knife. The first blow was on the face and head, the second was on the 11 Crl.A 198/06 back side, which fell on the buttock. If the intention of the accused was to take the life of the injured-P.W.1 by use of knife, he could have assaulted on the abdomen and the fact that he assaulted the appellant with the knife on the head a harder part, would at the most lead to the conclusion that he had an intention to cause injuries and it cannot be said by any stretch of imagination that he had an intention to kill P.W.1. Therefore, the conviction of the appellant [accused] for the charge under Section 307 IPC is erroneous and illegal.
12. As P.W.1-Ansar Khan had sustained simple injuries by use of a dangerous weapon, the offence falls within the purview of Section 324 IPC and hence he is guilty of the said offence. Taking into consideration the fact that the appellant is aged about 60 years as on the date of the incident, a reasonable sentence has to be ordered. 12 Crl.A 198/06
In the result, the appeal is allowed in part, setting aside the conviction of the appellant for the charge under Section 307 IPC., he is acquitted of the said charge. He is convicted for the offence punishable under Section 324 IPC and is ordered to undergo rigorous imprisonment for one year and to pay a fine of Rs.2,000-00, in default to undergo simple imprisonment for 3 months. The appellant is entitled to set off under Section 428 Cr.P.C. The trial Court is directed to secure the presence of the appellant to undergo the sentence.
The fee of Sri. B.M. Mohan Kumar, learned Amicus Curiae is fixed at Rs.5,000-00 and the same shall be paid by the State.
Sd/-
JUDGE.
Ksm*