Karnataka High Court
Nagesh @ Thammi S/O Manjayya vs State Of Karnataka Reptd By Spp on 29 January, 2013
1 Crl.A 345/06
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 29TH DAY OF JANUARY, 2013
BEFORE:
THE HON'BLE MR. JUSTICE A.S.PACHHAPURE
CRIMINAL APPEAL No.345 OF 2006
BETWEEN:
Nagesh @ Thammi,
S/o. Manjayya,
Aged about 27 years,
Coolie,
R/at Petekeri,
Balehonnur,
N.R.Pura Taluk. ... APPELLANT/S
[By Sri. Subhash Kowdichar, Adv. for
M/s. Subhash and Rajesh Associates, Advs.]
AND:
State of Karnataka,
Rep. by State Public Prosecutor,
High Court Building,
Bangalore. ... RESPONDENT/S
[By Sri. Satish R. Girji, HCGP.]
***
This Crl.A. is filed u/Section 374(1) Cr.P.C.
against the Judgment dated 19.11.2005 passed by
the Prl. S.J., Chikmagalur in S.C. No.19/2005,
convicting appellant-accused for the offence
punishable under Section 307 of IPC and sentencing
him to undergo rigorous imprisonment for 5 years.
2 Crl.A 345/06
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 Sessions Judge, Chikmagalur.
2. The facts relevant for the purpose of this appeal are as under:
P.W.2-Krishna is the son of P.W.1-Lakshmi and P.W.9-Rukmini is the sister's daughter of P.W.1- Lakshmi. The appellant who is the accused before the trial Court is said to have fallen in love with P.W.9-Rukmini and as the accused was a person of bad conduct, Somu i.e., the brother of P.W.9 and P.W.2-Krishna, cousin brother of P.W.9-Rukmini were against the marriage of the accused with Rukmini. On 01.11.2004 at about 7.00 p.m., P.W.2- Krishna went to the arrack shop of P.W.7- 3 Crl.A 345/06 Ramachandra @ Chokkanna accompanied by P.W.8- Lokesha. The accused was also in the arrack shop when these persons went to drink liquor. On the way back, P.W.2-Krishna and P.W.8-Lokesha said to have asked the accused to discontinue the love relationship with Rukmini and while they were proceeding, P.W.8-Lokesha left them and went to his house. It is stated that there was an altercation between P.W.2-Krishna and the accused and at that time, the accused is said to have assaulted P.W.2-Krishna with the sickle which was brought by him. As a result, Krishna suffered injuries on the neck and thereafter, the accused ran away from the place of the incident. The injured fell down and lost consciousness at the place and he was shifted to the Government Hospital. On intimation of this incident over phone, the Police also came to the place and after securing P.W.1-Lakshmi, the mother of the injured, recorded her complaint-Ex.P1 and it was registered 4 Crl.A 345/06 in Crime No.158/2004 for the offence punishable under Section 307 IPC. The FIR and the complaint were sent to the Magistrate. P.W.12, P.S.I., held the spot mahazar-Ex.P2 and seized M.Os.2 and 3 in the presence of P.Ws.3 and 4. Statements of the witnesses were recorded. The injured was shifted to Wenlock Hospital, Mangalore as the gravity of the injury was severe. After the arrest of the accused, he led the Police and the attesting witnesses i.e., P.W.5-Dennis D'Souza and another to Hanumanagalli at Balehonnuru near by a cut tree and underneath the said tree, he produced the sickle-M.O.1, which was seized under mahazar- Ex.P3. The seized articles were sent to the opinion of the experts. The statement of the injured-P.W.2 was recorded. Injury certificate and other documents were collected and on completion of the investigation, the charge-sheet was laid against the accused for the offence punishable under Section 307 IPC.5 Crl.A 345/06
During the trial, the prosecution examined P.Ws1 to 12 and in their evidence got marked the documents Exs.P1 to 15 and M.Os.1 to 3. The statement of the accused was recorded under Section 313 Cr.P.C. He has taken the defence of total denial. No defence evidence was led. Anyhow, the accused got marked the document Ex.D1 in the evidence of P.W.2.
The trial Court after hearing learned counsel for the parties and on appreciation of the material on record, held that the appellant guilty for the charge under Section 307 IPC and ordered him to undergo rigorous imprisonment for 5 years. Aggrieved by the conviction and sentence, the present appeal is filed.
3. I have heard learned counsel for the appellant and also learned High Court Government Pleader for the respondent-State. 6 Crl.A 345/06
4. The point that arises for my consideration is;
Whether the appellant has made out any grounds to interfere with the Judgment and Order of conviction and sentence for the offence punishable under Section 307 IPC?
5. Learned counsel for the appellant contended that except the injured-P.W.2-Krishna, whose evidence is not corroborated with the evidence of independent witness, such evidence cannot be relied upon. He also contends that there are discrepancies so far as the weapon used in the incident and as it goes to the root of the case, the appellant could have been acquitted. He would further contended that the incident has taken place in the night and there was no occasion for the injured to identify the appellant/accused. It is his alternative contention that the sentence of imprisonment for 5 years awarded is on the 7 Crl.A 345/06 higher side and it has to be reduced to considerably. On these grounds, he has filed the present appeal for setting aside the conviction and sentence.
Learned High Court Government Pleader supports the Judgment and Order of the trial Court and submits that the evidence of the injured corroborated by the evidence of the doctor itself is sufficient to sustain the conviction.
6. P.W.9-Rukmini does not say about her love affair with the accused. P.W.1-Lakshmi, P.W.2-Krishna-injured state about the said affair. The scrutiny of their evidence reveals that in the cross-examination, except the suggestion that the accused had no love affair with Rukmini, nothing is elicited to disbelieve the version.
7. On the date of the incident, the presence of the accused with the injured has been spoken to by P.W.6-K.G.Sahadeva and P.W.7-Ramachandra @ 8 Crl.A 345/06 Chokkanna. Though these 2 witnesses are independent witnesses and they have no interest either in the injured or the accused. P.W.8- Lokesha also speaks about the presence of the accused with the injured at the relevant point of time. The injured-P.W.2-Krishna had gone to the arrack shop with P.W.8-Lokesh. On the way-back from the arrack shop, Lokesha left both the injured and the accused and it is immediately thereafter the incident has taken place. So, at the time when the injured was with the accused it is the evidence of injured himself and that of P.Ws.7 to 9 and it is enough to accept the finding of the trial Court in relation to the presence of the appellant with the injured at the time of the incident.
8. P.W.2-Krishna, the injured states in his evidence that at 6.00 p.m., he went to Balehonnuru pete accompanied by Lokesh to the arrack shop of P.W.7-Ramachandra @ Chokkanna. While they were in 9 Crl.A 345/06 the said arrack shop, the appellant/accused came there and they consumed arrack. While they were returning to the house the injured-Krishna asked the appellant to discontinue his love affair with Rukmini. But, the appellant/accused refused to discontinue the relationship. On the way he took the sickle which he had tucked in his waist and assaulted on the back and front of the neck of P.W.2-Krishan. As a result, he fell down and the appellant ran away. Later the injured was shifted to the hospital.
9. The evidence led by the prosecution also reveals that there were street lights at the place of the incident occurred. So, there was no difficulty for P.W.2-Krishna to identify the assailant.
10. P.W.11-Dr.Sathish is the person, who treated the injured and he states in his evidence having noticed the following injuries: 10 Crl.A 345/06
1) A cut lacerated wound present over the front of neck which revealed injury to the larynix and muscles of the neck measuring 10 cm. x 5 cm. x 4 cm.
(2) There was a cut lacerated wound
present over the nape of the neck
measuring 1 cm. x 1 cm.
He referred the injured to the Wenlock Hospital, Mangalore. He is of the opinion that injury No.1 is grievous and injury No.2 is simple. Ex.P10 is the injury certificate and Ex.P11 is the letter of reference. Ex.P12 is the opinion of the doctor, in which he states that the injury could be caused by M.O.1-sickle. As the injured had suffered an injury to the larynix, it appears that he did not tell the doctor the name of the assailant and hence the history of the assault is mentioned as the assault by an unknown person with a sword. The injury suffered by P.W.2-Krishna has been amply proved from the evidence of P.W.11-doctor. 11 Crl.A 345/06
Therefore, P.W.2 had sustained grievous and a simple injury. The evidence of an injured cannot be lightly rejected. Generally the injured does not implicate an innocent and does not leave a person who has really caused the harm. The evidence of P.W.11-doctor corroborates the evidence of P.W.2-Krishna. So, when the medical evidence corroborates the evidence of the injured and when there was no reason to implicate the accused falsely, I think that the evidence of the injured itself is sufficient and it needs no corroboration. But, anyhow, the presence of the appellant/accused with the injured-P.W.2-Krishna is also proved from the evidence of P.Ws.6 to 8 and therefore, there is no difficulty in accepting the evidence of the prosecution.
11. Though there appears to be some discrepancy in relation to the weapon used in the incident, the injury certificate-Ex.P10 reveals mention of "sword" as the weapon used for the 12 Crl.A 345/06 offence, whereas the injured and other witnesses have stated that the assault was with a sickle. As the incident occurred in the night at about 7.30 p.m., may be that there was some discrepancy and that the evidence of injured-P.W.2-Krishna cannot be discarded as he firmly state that the assault having been caused with the sickle.
12. To further strengthen the case of the prosecution, it is relevant to note that P.W.12- Investigating Officer interrogated the appellant/accused on his arrest and thereafter the accused led the Police and P.W.5-Dennis D'Souza, to a place behind Bhadra Sports Club, there from underneath a cut tree, he produced the sickle- M.O.1 and it was seized under the mahazar-Ex.P3. This seizure has been amply proved from the evidence of P.W.5-attesting witness and P.W.12- Investigating Officer. After the seizure of M.O.1-sickle, it was sent for the opinion of the chemical expert and Ex.P15 is the report, which 13 Crl.A 345/06 reveals the trace of blood stain on the blade and expert has opined that it was of human origin. So, the recovery of the weapon at the instance of the appellant/accused and the blood stain found on the blade is of the human origin would further strengthens the case of the prosecution. Though there appears to be some delay in recording the statement of P.W.2-injured, as the incident has been satisfactorily proved by registering a complaint immediately after the incident and sending the FIR to the Magistrate forthwith, there are no circumstances to raise any doubt in the case of the prosecution.
13. So far as the sentence is concerned, it is relevant to note that both the injuries were on the neck, the injured was in the hospital for a period extending a month and as injuries are on the vital organ particularly over the neck and therefore, the intention of the appellant is to kill P.W.2-Krishna has been satisfactorily proved. 14 Crl.A 345/06 So far as the sentence is concerned, the trial Court has awarded imprisonment for 5 years. I do not find any justifiable grounds to exercise the discretion in reducing the sentence as the appellant has not made out any grounds to warrant the interference.
In the result, the appeal fails and it is dismissed. The conviction and sentence ordered by the trial Court are confirmed. However, the appellant/accused is entitled to the set off under Section 428 Cr.P.C. The trial Court shall secure the presence of the appellant/accused to undergo the sentence.
Sd/-
JUDGE.
Ksm*