Bangalore District Court
State By Bandepalya vs Byrachi S/O Bommar on 22 December, 2017
IN THE COURT OF THE CHIEF METROPOLITAN
MAGISTRATE, BENGALURU CITY
Dated this the 22nd day of December 2017
Present:
Sri S.Nataraj, B.A.L., L L.B.,
Chief Metropolitan Magistrate,
Bengaluru
C.C. No.24322/2017
Complainant : State by Bandepalya
Police, Bengaluru City
(By Sr. APP)
-V/s-
Accused : Byrachi s/o Bommar,
28 yrs, No.T-3, Ashirvad
Building, Near Saibaba
Temple, Cambridge Layout,
Indiranagar, Bengaluru.
(By U.Prasannakumar, Advocate/Standing Counsel)
Date of offence : 31-08-2017
Offences : U/S 326, 506 of IPC
Plea of the accused : Accused Pleaded
not guilty
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Final order : Accused Convicted for an
offence punishable under
Section 325 of IPC
Date of Judgment : 22-12-2017
J U D G M E N T U/S 355 of Cr.P.C.
The Police Sub-Inspector of Bandepalya Police
Station has filed charge sheet against accused for the
offences punishable under Section 326 and 506 of
IPC.
2. The case of prosecution in brief is that-
On 31-08-2017, CW1 Vandana was traveling in
BMTC bus route No.24 (600-C), proceeding towards
Attibele, by sitting in 4th row window seat of driver
side. At about 12.30 p.m., the said bus was stopped in
the Kudlu Gate Traffic Signal, Hosur Road,
Bengaluru. At that time, the accused who was outside
the bus came near the window and by seeing CW1
had winked, for which CW1 had resisted with anger,
immediately the accused assaulted the complainant
with blade on the back side of her neck, as a result of
which she sustained grievous bleeding injury and also
3 CC No.24322/2017
the accused threatened CW1 to kill her, if she lodged
complaint to police. Thereby the accused person
committed the aforesaid offences.
3. Accused is in J.C. After furnishing the
charge-sheet copies, Charge for the offences
punishable under Section 326 and 506 of IPC was
read over and explained in the language known to
accused, he pleaded not guilty and claimed to be tried.
4. The prosecution in order to prove its case has
examined in all eight witnesses as PW1 to 8, got
marked the documents as Ex.P1 to 6 and the half
blade used by accused for commission of offence as
MO1. Thereafter the accused is examined under
Section 313 of Cr.P.C. He denied the incriminating
evidence appeared against him and stated that he has
no defence evidence.
5. Heard arguments on both sides.
6. The points that arise for my consideration are-
1) Whether the prosecution
proves beyond all reasonable
doubt that accused person
committed the offences
punishable under Section 326
and 506 of IPC?
2) What order?
4 CC No.24322/2017
7. My answer to the above points are as under.
Point No-1: Partly in the Affirmative
Point No-2 : As per final order
REASONS
Point No-1:
8. The prosecution allegation is that on 31-08-
2017 at 12.30 p.m., while the complainant was
traveling in BMTC bus route No.24 (600-C) by sitting
in 4th row of driver side, near Kudlu Gate traffic
signal, the accused who was outside the bus had
misbehaved by seeing the complainant. When the
complainant had shown anger towards the accused, he
had caused grievous bleeding injury to her, by
assaulting with a blade and also threatened her with
dire consequences of life.
9. The learned Sr.APP submitted his arguments
that the prosecution by examining the witnesses
established its case beyond all reasonable doubt, there
is no suspicion in the case of prosecution. The
evidence of victim, eyewitness and medical evidence
are consistent. There is no reason to disbelieve the
prosecution case and hence prayed for conviction.
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10. On the other hand, the learned standing
counsel for accused argued that the evidence of
complainant is inconsistent with the eyewitness. It is
improbable to believe the version of prosecution
witnesses that within a second, the incident was
occurred. The blade which was alleged to have been
used by the accused while assaulting the complainant
does not contain blood stains, the seizure of said blade
is not established. There is a material inconsistent in
the oral evidence of prosecution with that of medical
evidence. The prosecution failed to prove its case
beyond all reasonable doubt and hence prayed to
acquit the accused.
11. On careful consideration of the submissions
of both sides, I have carefully perused the materials
available on record. Herein, the prosecution has to
prove the offences against accused in terms of Section
326 and 506 of IPC. In this regard, it is necessary to
appreciate the oral evidence of prosecution witnesses.
12. The prosecution in order to prove the
allegations made against accused examined CW1
Vandana as PW1. She deposed that on 31-08-2017
when she was traveling in 600(C) BMTC bus, near
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Kudlu Gate Signal, the accused who was outside the
bus was acting indecently on seeing her. When she
resisted by showing anger, the accused assaulted on
her right side of the neck with blade through the
window and caused bleeding injury. She was shifted
to Springleaf Health Care Pvt. Ltd. Hospital for
treatment. PW1 has identified the complaint as Ex.P1,
mahazar as Ex.P2 and the blade used for assault as
MO1.
13. Similarly, PW2 Suresh being an eyewitness
to the incident deposed regarding the alleged assaulted
made by accused with blade to PW1, shifting of PW1
to hospital and informing the matter to her mother
through phone. PW3 Sharadamma, the mother of
complainant in her evidence deposed that she came to
know about the incident from her daughter in hospital,
wherein PW1 had sustained cut injury by means of
blade.
14. PW4 Jagadeesh being the mahazar witness
has spoken about the drawing of Ex.P2 mahazar after
registration of the case. PW6 Venugopal speaks about
the investigation conducted by him in this case such as
registration of case, drawing of mahazar, recording of
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the statements of witnesses, collecting wound
certificate of injured and submission of charge sheet
against accused. PW5 Dr. Bhanupriya, the Medical
Officer who had treated the complainant at first
instance deposed about the treatment given to PW1
and issuance of wound certificate as per Ex.P3.
15. PW1 to 6 have been cross-examined by the
Standing Counsel and denied the version of
prosecution case. From the cross-examination of
above said witnesses, it is not disputed that on 31-08-
2017 at about 12.30 p.m., the complainant was
traveling in BMTC bus route No.24 (600-C), sitting
by the side of window in 4th row of driver side. In the
cross-examination of PW5 Dr.Bhanupriya, the
accused has not disputed the deep cut wound 10 cm
long sustained by PW1 on her right side behind the
neck. It is the suggestion made to above said witness
that the injury mentioned in Ex.P3 wound certificate
may be caused by sharp glass piece. If the above said
suggestion is considered, the injury sustained by
complainant on 31-08-2017 is admitted. It is not
suggested or elicited in the cross-examination of PW1
as to how she had sustained injury on her neck if not
8 CC No.24322/2017
while traveling in the bus on the above said date.
Further in the cross-examination of PW1 it is not
suggested that she sustained injury by a glass piece in
some other way other than the prosecution version.
16. PW2 Suresh being an eyewitness in his
evidence has also supported the prosecution case and
deposed about the injury caused by accused with
blade to the complainant. PW1 and 2 being the main
witnesses have clearly identified the accused who has
caused assault to complainant. No doubt in the cross-
examination of PW2, the accused disputed his
presence in the bus on the date of incident. It is
significant to note here that PW2 is not related to
complainant. When such being the fact, there was no
necessity for PW2 to depose against the accused and
in favour of complainant. If really PW2 was not
traveling in the bus on the date of incident and he had
not witnessed the incident, he would not have taken
the complainant to hospital for treatment. Therefore,
there is no reason to disbelieve the evidence of PW1,
2 and 5. The ocular evidence is in conformity with
medical evidence.
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17. That apart in the cross-examination of PW5,
the injury sustained by complainant is not disputed.
The injured and eyewitness PW2 have also identified
the accused before the court. The complainant
immediately after taking treatment had lodged
complaint against accused. It is elicited in her
evidence that prior to incident; she did not knew the
accused. The complainant would not have lodged
complaint against accused by mentioning his name, if
he has not caused injury. The accused at first instance
after incident was apprehended by the people gathered
at the spot, who disclosed his name and thereafter the
accused had escaped from the spot.
18. Furthermore, it is also mentioned in the
complaint that the accused was working in HGS
company as a cook. It is not the case of accused that at
the time of alleged incident, he was in the said
company. In the absence of such material, it has to be
accepted that the accused had caused injury to the
complainant with blade. The said blade has been
identified by PW1 as MO1, which is seized by police
by drawing mahazar at Ex.P6. However, PW7
Shankar and PW8 Lakshman being the Seizure
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Mahazar witnesses did not support the case of
prosecution. Though these witnesses were treated as
hostile and cross-examined, nothing substantial could
be elicited during their cross-examination in respect of
Ex.P6.
19. Mere the seizure mahazar witnesses turned
hostile, is not a ground to dis-believe the entire case of
prosecution. The evidence of PW6 - IO is clear about
the seizure of MO1 blade and the Medical Officer has
deposed that the injury mentioned in Ex.P3 may be
caused by MO1. Further, the evidence of PW1 is
supported by PW2 the eyewitness. PW3 , the mother
of PW1 immediately after coming know about the
incident visited the hospital and noticed injury
sustained by PW1 on her right side neck. On enquiry,
PW3 came to know that the accused had caused injury
to her daughter. The evidence of PW1 in respect of
spot mahazar is supported by the mahazar witness
PW4.
20. According to the evidence of PW5
Dr.Bhanupriya, the injury sustained by complainant is
described as follows-
11 CC No.24322/2017
Right side behind back - deep cut wound
10 cm long
As per PW5, the said injury is grievous in nature and
it could be caused by MO1 half blade. Whether the
said injury falls within the ambit of grievous hurt
under Section 320 IPC is to be looked into.
21. It is useful to refer the judgment of Hon'ble
Supreme Court reported in 2005 SCC (Cri) 695 in
the case of Mathai Versus State of Kerala, wherein
his Lordship has observed thus:
14. "Grievous hurt" has been defined in
Section 320 IPC, which reads as follows:
"320. Grievous hurt.- The following kinds
of hurt only are designated as "grievous':
First. - Emasculation.
Secondly.-Permanent privation of the sight
of either eye.
Thirds-Permanent privation of the hearing
of either ear.
Fourthly. -Privation of any member of joint.
Fifthly. -Destruction or permanent
impairing of the powers of any member of
joint.
Sixthly. -Permanent disfiguration of the
head or face.
12 CC No.24322/2017
Seventhly.-Fracture of dislocation of a bone
or tooth.
Eighthly.-Any hurt which endangers life or
which causes the sufferer to be during the
space of twenty days in severe bodily pain,
or unable to follow his ordinary pursuits.
15. Some hurts which are not like those
hurts which are mentioned in the first seven
clauses, are obviously distinguished from a
slight hurt, may nevertheless be more
serious. Thus a wound may cause intense
pain, prolonged disease or lasting injury to
the victim, although it does not fall within
any of the first seven clauses. Before a
conviction for the sentence of grievous hurt
can be passed, one of the injuries defined in
Section 320 must be strictly proved, and the
eighth clause is no exception to the general
rule of law that a penal statute must be
construed strictly.
16. The expression "any instrument which,
used as a weapon of offence, is likely to
cause death" has to be guaged taking note of
the heading of the section. What would
constitute a "dangerous weapon" would
depend upon the fact of each case and no
generalisation can be made.
17. The heading of the section provides
some insight into the factors to be
considered. The essential ingredients to
attract Section 326 are (1) voluntarily
causing a hurt; (2) hurt caused must be a
13 CC No.24322/2017
grievous hurt; and (3) the grievous hurt
must have been caused by dangerous
weapons or means. As was noted by this
Court in State of U.P. v. Indrajeet there is
no such thing as a regular or earmarked
weapon for committing murder or for that
matter a hurt. Whether a particular article
can per se cause any serious wound or
grievous hurt or injury has to be determined
factually. As noted above, the evidence of
the doctor (PW.5) clearly shows that the
hurt or the injury that was caused was
covered under the expression "grievous
hurt" as defined under Section 320 IPC. The
inevitable conclusion is that a grievous hurt
was caused. It is not that in every case a
stone would constitute a dangerous weapon.
It would depend upon the facts of the case.
At this juncture, it would be relevant to note
that in some provision e.g. Section 324 and
326 the "dangerous weapon" is used. In
some other more serious offences the
expression used is "deadly weapon" (e.g.
Sections 397 and 398). The facts involved
in a particular case, depending upon various
factors like sieze, sharpness, would throw
light on the question whether the weapon
was a dangerous or deadly weapon or not.
That would determine whether in the case
Section 325 or Section 326 would be
applicable.
14 CC No.24322/2017
22. Thus, in the above said case, the Apex Court
while considering the size of stone, which was used,
came to the conclusion that the said stone cannot be
said to be a dangerous weapon. Therefore, the
conviction is altered to Section 325 of IPC.
23. In the present case, the injury was caused to
complainant on her neck, which is a vital part of the
body. PW5, the doctor has described the injury as
grievous in nature and it is also described as
disfiguration injury. The injury is 10 cm long cut
injury caused by blade. The injury inflicted on vital
parts of the body such as neck, head, chest or
abdomen tend to endanger life and are therefore
dangerous as to make the victim waiver between life
and death. In this case, the injury is inflicted on the
neck by a sharp edged blade and is dangerous to life.
It falls within the ambit of 8th category under Section
320 of IPC. The accused with an intention to cause
injury had carried the blade with him, on the
resistance by complainant on account of his mis-
behaviour had caused injury to complainant.
24. The Hon'ble Supreme Court in the case of
Horilal and Another Versus State of U.P., 1970
15 CC No.24322/2017
AIR 1969, in order to justify the conviction under
Section 326 IPC observed that injuries must satisfy
the requirements of clause 7 or 8 of Section 320 of
IPC, otherwise, they will be treated as simple injuries.
Clause 7 and 8 of Section 320 of IPC provide that an
injury could only be designated as grievous if it is-
(i) a fracture or dislocation of a bone or
tooth, or
(ii) any hurt which may endangers life or
which causes the sufferer during the space
of 21 days in a severe bodily pain or
unable to follow his ordinary pursuits.
25. In the instant case, in the cross-examination
of PW1, it is elicited that she had taken treatment for
about one month, whereas PW5 deposed that the
complainant had taken treatment as out patient for a
day. Nevertheless the injury inflicted on the neck of
complainant is a vital part of the body. The blade was
used to inflict the injury and it is a grievous in nature,
which would have endangered the life of complainant,
which falls under Clause 8 first part of Section 320 of
IPC.
16 CC No.24322/2017
26. MO1 half blade was used for committing the
offence. Whether MO1 can be described as a
dangerous weapon needs to be considered, so as to
attract Section 326 IPC. The said half blade though is
sharp and used as a weapon for causing grievous hurt,
the same cannot bring the said weapon under the
category of 'dangerous weapon'. Hence, the question
of Section 326 of IPC coming into play will not arise
in the present case. In my considered view, the facts
of this case would fall under Section 325 of IPC and
not under Section 326 of IPC.
27. On the whole, I conclude that there is no
sufficient material to convict the accused for an
offence punishable under Section 326 of IPC.
However, it would be lawful for the court to hold the
accused is guilty of an offence punishable under
Section 325 of IPC, even though no specific charge
was framed for the said offence but is a lesser offence
than that of Section 326 of IPC, under the Chapter of
Offences Affecting The Human Body. Therefore, I
find no hurdles to convict the accused for an offence
punishable under Section 325 of IPC. Further, there
are no evidence on record to prove the offence of
17 CC No.24322/2017
Section 506 IPC against accused. To the extent of
Section 325 IPC, the prosecution proved the case
beyond all reasonable doubt. In the result, I answer
Point No-1 Partly in the Affirmative.
Point No-2:
28. In view of my finding to Point No-1 as
above, I proceed to pass the following:
ORDER
Under Section 248(2) of Cr.P.C., the accused is convicted for an offence punishable under Section 325 of IPC.
Under Section 248(1) of Cr.P.C., the accused is acquitted of an offence punishable under Section 506 of IPC.
To hear regarding sentence.
(Dictated to the Stenographer on Computer. The computerized print out taken by steno is revised, corrected and then pronounced by me in the Open Court on this day i.e., 22-12-2017) (S.Nataraj), Chief Metropolitan Magistrate, Bengaluru.
18 CC No.24322/201722-12-2017 Orders on Sentence Heard regarding sentence.
The Sr.APP submitted that the accused has committed the alleged offences against complainant who is young college going girl. Because of injury, there is a mark on her neck and there is chance of diminishing her marriage prospects. Hence prayed to award maximum punishment.
The standing counsel for accused submitted that the accused is aged about 28 years and native of Orissa State. The accused had come to Bengaluru for work, who is having aged mother and he is first offender. Hence lenient view may be taken and lesser punishment may be awarded. The period in which the accused is in Judicial Custody may be treated as sentence and he may be released.
On consideration of the above said contentions, I have gone through the prosecution records. Herein, the accused is found guilty of an offence punishable under Section 325 of IPC. Regarding punishment for the offence proved is concerned, Section 325 of IPC is 19 CC No.24322/2017 punishable with imprisonment for seven years and fine.
The Hon'ble Supreme Court in the case of State of Madhya Pradesh Versus Najab Khan, (2013) 9 SCC 509 held as under-
15) In view of the above, we reiterate that in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The Courts must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment.
20 CC No.24322/2017In view of above said settled law, in the instant case, the accused intentionally who had come with blade teased the complainant traveling in the bus. On her resistance, the accused caused bleeding injury with blade on her neck, which is a vital part of the body. The complainant being a young 20 years college going girl had suffered 10 cm cut injury on her neck, for no fault of her. It is noticed by the court during the course of examination of complainant that there is a 10 cm long injury mark on the neck of complainant. She has to carry the said injury mark through out her life. There is also chance of diminishing her marriage prospects. Hence considering the nature of injury, the weapon used by accused and manner in which he has caused injury to the complainant in a public place, I am of the considered view that Section 3 and 4 of Probation of Offenders Act cannot be made applicable to this case.
On the other hand, the proper and appropriate punishment has to be awarded to the accused for the offence proved. The victim has to be compensated in respect of the injuries suffered by her in terms of Section 357A of Cr.P.C. It is to be noted here that the 21 CC No.24322/2017 accused is aged about 28 years as per charge sheet and he is in Judicial Custody since 01-09-2017. Therefore, considering all the above said aspects, I deem it proper to pass the following:
ORDER The accused is sentenced to undergo S.I. for a period of three years and pay a fine of Rs.5,000/- in default he shall undergo S.I. for three months, for an offence punishable under Section 325 of IPC.
Under Section 428 of Cr.P.C., the period of detention undergone by accused during investigation, enquiry or trial of the case is given set off against the sentence of imprisonment and the accused shall serve remaining sentence.
Under Section 357A Cr.P.C., case is recommended for necessary compensation to PW1 Vandana, to the District Legal Services Authority, Bengaluru Urban District, Bengaluru.
MO1 being worthless is ordered to be destroyed after the completion of appeal period.22 CC No.24322/2017
Office to supply a free copy of judgment to the accused.
Also the office to issue conviction warrant accordingly.
Office to send the certified copy of this Judgment to District Legal Services Authority, Bengaluru Urban, for consideration of payment of compensation to PW1 Vandana.
(Dictated to the Stenographer on Computer. The computerized print out taken by steno is revised, corrected and then pronounced by me in the Open Court on this day i.e., 22-12-2017) (S.Nataraj), Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of the prosecution:-
P.W.1 : Vandana
P.W.2 : Suresh
P.W.3 : Sharadamma
P.W.4 : Jagadeesh
P.W.5 : Dr. Bhanupriya
P.W.6 : Venugopal
P.W.7 : Shankar
P.W.8 : Lakshman
23 CC No.24322/2017
List of Documents marked on behalf of the prosecution:-
Ex.P.1 : Complaint
Ex.P.2 : Mahazar
Ex.P.3 : Wound Certificate
Ex.P.4 : F.I.R.
Ex.P.5 : Voluntary Statement
of Accused
Ex.P.6 : Seizure Mahazar
List of Material objects produced:-
MO1 : Half Blade List of Witnesses examined & documents marked on behalf of the defence:
NIL CMM, Bengaluru.