Karnataka High Court
Jeethu @ Jithendra Shetty vs The State Of Karnataka on 21 March, 2018
Equivalent citations: AIRONLINE 2018 KAR 2692, 2018 (4) AKR 158
Author: K.Somashekar
Bench: K.Somashekar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF MARCH 2018
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL APPEAL NO.505/2010
BETWEEN:
JEETHU @ JITHENDRA SHETTY
AGED ABOUT 35 YEARS
S/O.LATE NARAYAN SHETTY
R/O.MUDUMANE, ALANGARUGUTHU
NADSELU VILLAGE
UDUPI TALUK & DISTRICT.
... APPELLANT
(BY SRI.C.H.JADHAV, ADV.)
AND:
THE STATE OF KARNATAKA
BY PADUBIDRI POLICE STATION
REPTD., BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
BANGALORE-560 001.
... RESPONDENT
(BY SRI.K.NAGESHWARAPPA, HCGP)
THIS CRL. APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C. PRAYING THAT THIS HON'BLE COURT MAY BE
PLEASED TO SET ASIDE THE CONVICTION AND SENTENCE
RECORDED BY THE LEARNED SESSIONS JUDGE, UDUPI IN
S.C. NO.17/2009 BY ORDER DATED 30-04-2010 CONVICTING
THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 504
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AND 307 OF IPC. THE APPELLANT/ACCUSED SENTENCED TO
UNDERGO R.I. OF 4 YEARS AND PAY A FINE OF RS.5,000/-
(RS.FIVE THOUSAND) AND IN DEFAULT TO UNDERGO S.I.
FOR A PERIOD OF 6 MONTHS FOR THE OFFENCE P/U/S 307
OF IPC.
THIS CRL.APPEAL IS COMING ON FOR HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the judgment of conviction and order of sentence passed by the Sessions Judge, Udupi District, Udupi in S.C.No.17/2009 dated 30.04.2010, convicting the accused/appellant herein, for the offences punishable under Sections 504 and 307 of IPC and sentencing him for the offence punishable under Section 307 of IPC to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.5,000/- to the victim and in default, to undergo simple imprisonment for a period of six months.
2. The factual matrix of the appeal are as under:
On 26-03-2008, at about 10.00 p.m., the accused was taking food along with the complainant Karunakara 3 Poojary and Ganapathy Kamath at S.S.Bar, Padubidri. During the discussion, the accused abused the complainant with a filthy language and broke a soda bottle by hitting the same to the table and stabbed the complainant with the said soda bottle on his stomach and again stabbed the complainant in front of the S.S.Bar on his stomach, as a result of which, the complainant sustained grievous injuries.
3. In pursuance of the act of the accused, a complaint came to be registered in Crime No.31/2008 and the Investigating Officer has taken up the investigation and laid a chargesheet against the accused for the offences punishable under Sections 504 and 307 of IPC wherein the accused pleaded not guilty of the charges framed and claimed to be tried. Accordingly, plea of the accused has been recorded.
4. In order to prove its case, the prosecution in all examined 11 witnesses as PWs. 1 to 11 and got marked as 4 many as 21 documents as at Exs.P.1 to P.8(a). Apart from that, material objects were marked as MOs. 1 to 4. Thereafter statement under Section 313 was also recorded wherein the accused denied the allegations made against him, however, he did not come forward to adduce the defence evidence as contemplated under law.
5. On appreciation of the oral and documentary evidence let in by the prosecution, by the impugned judgment of conviction and order of sentence, the Trial Court convicted the accused for the offence punishable under Section 307 of IPC and has been imposed sentence as stated supra. Being aggrieved by the same, the present appeal is preferred by the accused.
6. Heard Sri.C.H.Jadhav, learned counsel for the appellant and Sri K.Nageshwarappa, learned Government Pleader for the State.
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7. Keeping in view the submission made by them and perusal of the impugned judgment and the evidence on record, the only point that arise for consideration in this appeal is-
Whether the judgment of conviction and order of sentence held against the accused are justifiable in law?
8. Learned counsel for the appellant, during the course of arguments has taken me through the impugned judgment rendered by the trial Court and contended that the order of sentence is contrary to the facts and law. The prosecution has not placed any evidence to establish that the accused has caused injuries over the person of the injured beyond all reasonable doubts. There is inordinate delay in filing the complaint and also in examining the eye- witnesses to the incident and the said delay was caused to give definite shape to the case. The Prosecution has not ventured to establish the case against the accused. The evidence of P.W.1/complainant is unnatural, artificial and 6 not credit-worthy to hold that the accused had caused injuries to the complainant by stabbing him with the broken soda bottle, on the vital parts of the stomach. Despite that, the trial Court has erroneously come to the conclusion that the accused has caused injuries over the person of the injured-complainant, which is beyond all reasonable doubts and the same is required to be revisited by re-appreciation of entire evidence on record. It is further contended that the Prosecution has not placed any cogent and corroborative evidence to prove that the accused had any intention to cause the alleged offence inflicting stab injuries over the person of the injured-P.W.1, who has been subjected to examination and also cross-examination at length. It is his further submission that the trial Court has not appreciated the evidence in proper perspective. Therefore, re-appreciation of entire evidence on record insofar as motive for committing the alleged offence and causing injuries over the person of P.W.1 as indicated in the wound certificate at Ex.P5 is necessary. It is further 7 contended that the trial Court has not appreciated the manner in which the alleged incident ought to have taken place between the accused and the complainant/P.W.1. Even according to the prosecution, there was no intention to commit the alleged offence as narrated in the complaint at Ex.P1 and causing injuries on stomach. The evidence of doctor-P.W.8 who provided treatment to the injured and issued wound certificate has not supported the case of the prosecution and the same is required to be revisited. The trial Court has misdirected and misread the entire evidence placed by the prosecution. In order to establish the guilt of the accused, the ingredients relating to the offence under Section 307 of IPC has not been properly established by the Prosecution.
9. M.Os.1 to 4 were seized by the Prosecution from the scene of occurrence under the seizure mahazar drawn on 30-03-2008, i.e. after lapse of four days of the incident. On that ground alone, the impugned judgment is required to 8 be set aside. The learned counsel for the appellant has placed reliance on the decision of Hon'ble Supreme Court in the case of SHYAM SHARMA v/s STATE OF MADHYA PRADESH AND ANOTHER reported in (2017) 9 SCC 362, wherein the Apex Court held that the firearm injury caused without any premeditation and injury suffered by the victim was not on the vital part of his body, the prosecution has failed to prove that the accused intended to cause death of the injured. In the present case, the injuries inflicted over the injured as indicated in Ex.P5 whereas, injury No.1 is grievous in nature and injury No.2 is simple in nature. The grievous hurt is defined under Section 320 of IPC, there are 8 kinds of hurts as enumerated under the aforesaid Section. As such, the learned counsel for the appellant has placed reliance on the judgment of the Hon'ble Supreme Court in the case of SAKHARAM v/s STATE OF MADHYA PRADESH AND ANOTHER reported in (2015) 10 SCC 557 the Apex Court held that the grievous hurt is defined in Section 320 IPC. To make out the offence of voluntarily 9 causing grievous hurt, there must be a specific hurt voluntarily inflicted and coming within the eight kinds of hurt as enumerated in Section 320 IPC. Further held that the injury in question if grievous hurt, the sentence has to be reduced. The occurrence was a sudden fight and in a fit of passion. Even in the present case also, the accused abused the complainant in filthy language and broke the soda bottle and then stabbed on the stomach of the complainant with the said broken soda bottle, as a result of which, the complainant sustained injuries as indicated in the wound certificate. However, there was no premeditation or intention to cause death of PW.1 and the same has been seen in the evidence of the prosecution.
11. In order to establish the guilt of the accused, the complainant has examined P.W.2 who claims to be the eyewitness to the incident. He deposed in his evidence that the accused was abusing the complainant and the accused held a broken soda bottle and stabbed the 10 complainant in the S.S.Bar and again outside the Bar i.e., in front of the Bar. The M.O.4/broken soda bottle was seized by the Investigating Officer while conducting the spot mahazar as per Ex.P2, the seizure mahazar was drawn on 30-03-2008 as per Ex.P3. But insofar as the evidence of P.W.2 is concerned, he being the eye-witness deposed that he was not aware as to how and where the complainant had suffered injuries. It clearly indicates that he was not the eye-witness to the incident. The statement of this witness was recorded on 14-09-2009, after lapse of several days of the incident.
12. P.W.4 was also examined by the Prosecution. However, he does not support the case of the prosecution. In his cross-examination, he has clearly admitted that he was not aware as to where and how P.W.1 was said to be caused injury. In that view of the matter, P.W.4 cannot be termed as eye-witness to the incident. The evidence of P.W.2 and P.W.3 run contrary to each other. In that 11 circumstance, the trial Court ought to have appreciated the evidence in proper perspective. Therefore, the learned counsel for the appellant would contend that the entire evidence on record is required to be re-appreciated by this Court and the judgment of conviction and order of sentence dated 30-04-2010 passed by the trial Court in S.C.No.17/2009 are to be set aside, by allowing the appeal.
13. Per contra, the learned Government Pleader appearing for the State has taken me through the evidence of P.W.1/complainant whereby he has narrated the occurrence of incident in the complaint. It is stated that the crime said to have occurred and alleged to have used broken soda bottle. The Investigating Officer after conducting spot mahazar on 30-03-2008 as per Ex.P2 has seized the pieces of soda bottle in the presence of P.W.5, P.W.9 and P.W.10, for which they have subscribed their signatures. The seizure mahazar has been marked as Ex.P3. The trial Court after appreciating the entire 12 evidence on record including the wound certificate at Ex.P5 which discloses that the complainant has suffered injuries to the vital parts of stomach. P.W.8/Doctor who provided treatment to the complainant and issued wound certificate which bears his signature at Ex.P5(a) has stated that the injury No.1 caused to the complainant with means of broken soda bottle and the same is grievous in nature. P.W.11 is the Investigating Officer. He has obtained the wound certificate from P.W.8 and laid charge sheet against the accused. The trial Court had appreciated the evidence in proper perspective and rightly convicted the accused for the offence punishable under Section 307 of IPC. Hence, the same does not warrant interference by this Court and therefore, sought for dismissal of the appeal as devoid of merits.
14. Keeping in view the arguments advanced by the learned counsel for the appellant and the learned High Court Government Pleader, it is relevant to state that on 13 26-03-2008 at about 10.00 p.m., the accused and complainant were taking food at S.S.Bar situated at Padubidri. During the discussion, the accused abused the complainant in filthy language, thereafter broke a soda bottle by hitting the same to the table and then stabbed the complainant with the said broken soda bottle on his stomach as a result, the complainant sustained injuries as indicated in Ex.P5. In pursuance of filing of the complaint at Ex.P1, FIR at Ex.P4 came to be filed. So also, the Investigating Officer conducted spot mahazar at Ex.P2 and drawn seizure mahazar at Ex.P3 in the presence of P.W.5, P.W.9 and P.W.10 who had also subscribed their signatures.
15. Learned counsel for the appellant/accused contended that P.W.2 and P.W.3 being the eye-witnesses for the Prosecution have specifically stated in their evidence that they are not aware as to how the incident took place and sufferance of injuries by the complainant as narrated in the 14 complaint. They do not support the case of the prosecution. It is further relevant to state that there was no intention or premeditation to commit the alleged offence as narrated in the complaint. The alleged offence does not attract Section 307 of IPC, as such, the learned counsel placed reliance on the decision of the Hon'ble Supreme Court in SHYAM SHARMA case (supra), wherein it was held that the injured has sustained gunshot injury. The injury suffered was not on the vital part of his body. Hence, the prosecution has failed to prove that the accused had an intention to cause the injuries indicated at Ex.P5. Therefore, the appellant can only be convicted under Section 324 IPC and not under Section 307 IPC. Another decision of the Hon'ble Supreme Court relied upon by the learned counsel for the appellant in SAKHARAM case (supra) is relating to grievous hurt which as defined under Section 320 of IPC. To make out the offence of voluntarily causing grievous hurt, there must be a specific hurt voluntarily inflicted and coming within the eight kinds of 15 hurt as enumerated in Section 320 IPC. These two judgments relied upon by the learned counsel for the appellant/accused squarely applicable to the case on hand.
16. On going through the entire material evidence on record, I am of the opinion that the judgment passed by the trial court needs to be intervened and the judgment is required to be modified in respect of the offence punishable under Section 307 of IPC. Though charge sheet laid against the accused for committing the alleged offences, there is no enough material placed by the prosecution to prove the guilt against the accused for the offence under Section 307 of IPC insofar as intention or knowledge of the accused must be necessary to constitute the said offence. Without this ingredient being established, the offence under Section 307 of IPC cannot be held against the accused that the intention precedes the act attributed against him. However, the intention is to be covered from all circumstances and not merely from the consequences 16 for ensue. In the instant case, though the accused assaulted over the person of injured with means of M.O.4- broken soda bottle and injuries inflicted as indicated at Ex.P.5 issued by the doctor who provided treatment to him, it does not attract the offence under Section 307 of IPC, at the most, the accused can be held guilty of the offence punishable under Section 324 of IPC. Therefore, for the aforesaid reasons, the judgment of conviction passed by the trial Court requires modification. Keeping in view the infliction of the injuries over the person of injured and so also the ratio of the reliance placed by the learned counsel for the appellant in the case of SHYAM SHARMA (supra), whereby in that case also, the offence punishable under Section 307 of IPC has been converted into Section 324 of IPC as accordingly, the accused has been convicted for the offence under Section 324 IPC. Therefore, in order to determine whether the hurt caused is grievous, the extent of hurt and the intention of the offender have to be taken into account. But in the present case, the counsel has 17 placed reliance as stated supra as being rendered by the Hon'ble Supreme Court, they are squarely applicable to the case on hand. Therefore, the sentence passed by the trial Court needs to be modified.
17. For the foregoing reasons, the point framed by this court is answered by modifying the judgment of conviction and order of sentence dated 30.04.2010 passed by the Sessions Judge, Udupi District at Udupi in S.C.No.17/2009. The accused-appellant is convicted of the offence punishable under Section 324 of IPC. The accused-appellant was in judicial custody during the period of trial for a period of 40 days and the same is termed as the service of sentence.
18. The trial Court had imposed a fine of Rs.5,000/- and in default to undergo simple imprisonment for a period of 6 months. Keeping in view the evidence of P.W.1 being the injured, so also infliction of injuries over his person as indicated at Ex.P5, the same is required to be enhanced by 18 another sum of Rs.5,000/- in addition to Rs.5,000/- as already been held by the trial Court. As such, in all a sum of Rs.10,000/- as fine imposed against the accused. The said fine amount of Rs.10,000/- shall be payable to P.W.1 being the injured by way of compensation. The said fine amount shall be deposited by the accused before the trial Court, within a period of four weeks from the date of receipt of a copy of this judgment. Soon after deposit of the said fine amount, the same shall be disbursed to P.W.1 being the injured.
The appeal is accordingly allowed in part. The bail bond shall stand cancelled.
Sd/-
JUDGE mpk/-*