Bangalore District Court
Madesha @ Fighter vs State Of Karnataka By on 4 October, 2018
IN THE COURT OF THE LIX ADDL.CITY CIVIL
& SESSIONS JUDGE, BANGALORE CITY (CCH-60)
Dated this the 4th day of October 2018
PRESENT
Sri B. B.Jakati, B.A., LL.B., (Spl.)
LIX ADDL.CITY CIVIL & SESSIONS JUDGE
BANGALORE CITY
Crl. Appeal No.1045/2017
APPELLANT/S: 1. Madesha @ Fighter,
Madesha,
S/o Late Chennaiah
Aged about 44 years,
R/at No.47, 20th cross
Bhuvaneshwarinagara,
Bengaluru.
2. Raghu @ Raghavendra,
S/o Siddaiah,
Aged about 26 years,
R/at 19th cross
Bhuvaneshwarinagara,
K.P. Agrahara,
Bengaluru.
(By Sri K. Shyamsundar,
Advocate)
2 Crl.Ap.No.1045/2017
-Vs-
RESPONDENT/S: State of Karnataka by
K.P. Agrahara Police Station,
Bengaluru.
(By Public Prosecutor)
JUDGMENT
This is a Criminal Appeal filed under Section 374(3) of Cr.P.C. challenging the legality and correctness of the judgment of conviction and order of sentence passed by the 44th ACMM, Bengaluru in C.C.No.1881/2013 dated 05.07.2017.
2. The essential facts required for disposal of this appeal are that the P.W.1/Raju and P.W.2 are the friends and both of them known to appellants/accused Nos.1 and 2. On 01.11.2012 at about 7.00 P.M. the P.W.1 and 2 were having tea near S.L.V. Condiments situated in 20th cross of Bhuvaneshwari Nagar, Bengaluru and at 3 Crl.Ap.No.1045/2017 that time both accused picked up quarrel with P.W.2. The accused have assaulted the P.W.2 by their hands all over the body and even the accused No.1 given blow to P.W.2 with his fist on cheek and therefore, the tongue of P.W.2 was cut and separated and thereby the P.W.2 sustained grievous injury. The P.W.1 / Raju tried to pacify the quarrel and at that time both accused have abused him with filthy language and even given life threat to P.W.1 and 2. The P.W.2 was admitted in Gayatri hospital for treatment. The P.W.1 taken P.W.2 to the hospital. P.W.2 was not in a position to talk and therefore, he did not inform the Police. Even P.W.1 not informed the Police on 01.11.2012. But on 03.11.2012 the P.W.1 approached the Police and filed his first information. The Police registered the crime against both the accused and launched the investigation. During the investigation the Investigating Officer has arrested both 4 Crl.Ap.No.1045/2017 the accused and found that both accused have committed the offences punishable under Section 323, 325, 504, 506 read with Section 34 of IPC. Accordingly, PSI of K.P. Agrahara Police Station filed charge sheet against both accused for the above said offences.
3. Both accused appeared before the trial court through their counsel and they pleaded not guilty. In order to prove the guilt of the accused, the prosecution examined six witnesses as P.W.1 to PW.6 and got marked documents at Ex.P.1 to P.6 and one Material Object at M.O.1. The trial court examined both accused under Section 313 of Cr.P.C. They have denied the incriminating evidence and they have not adduced any evidence in their defence. After hearing both parties, the trial court has held that both accused are guuilty for the offence under Section 323, 325, 504, 506 read with 5 Crl.Ap.No.1045/2017 Section 34 of IPC. After hearing both accused, the trial court has passed the sentence to pay fine of Rs.500/- each for the offence punishable under Section 504 read with Section 34 of IPC and in default shall undergo SI for 15 days. Further sentenced to pay fine of Rs.500/- each for the offence punishable under Section 323 read with Section 34 of IPC and in default shall undergo SI for 15 days. Further, to pay fine of Rs.2,000/- each for the offence punishable under Section 506 read with Section 34 of IPC and in default shall undergo SI for one month. Further the accused No.1 sentenced to undergo RI for two years three months and to pay fine of Rs.5,000/- for the offence punishable under Section 325 of IPC and in default shall undergo SI for two months. Further, the accused No.1 was directed to pay compensation of Rs.35,000/- to the injured witness i.e. Sri L. Manjunath for the injuries suffered by him on his tongue and to pay 6 Crl.Ap.No.1045/2017 medical expenses incurred by him. Against this judgment of conviction, both accused preferred the appeal under Section 374(3) of Cr.P.C. on various grounds.
4. The LCRs have been secured. Inspite of providing sufficient opportunity appellant/accused not advanced the argument. The learned Public Prosecutor in his argument justified the judgment of conviction and order of sentence passed against the accused.
5. I have meticulously perused the records and the grounds of Appeal taken by the accused. In the Appeal Memo the accused have contended that inadmissible evidence has been accepted by the trial court; omissions and contradictions and improvements appearing in the evidence of prosecution is overlooked by the trial court; the material witnesses including the 7 Crl.Ap.No.1045/2017 Investigating Officer have not been examined and the conviction is passed on interested versions of P.W.1 and
2. On these main grounds, the accused sought to set aside the judgment of conviction and order of sentence.
6. Looking to the contentions taken by the accused and the prosecution, the following points arise for my determination:
1. Whether the trial court committed any error on fact and in law in convicting the accused for the offence under Sections 323, 325, 504, 506 read with Section 34 of IPC?
2. What Order?
7. My finding to the above points are as under:-
POINT No.1 :- In the Negative
POINT No.2 :- As per final order,
8 Crl.Ap.No.1045/2017
for the following:-
REASONS
8. POINT No.1 AND 2 :- The P.W.1 and 2 are
the victims of the crime. P.W.5 is the eye witness to the incident. P.W.3 is one of the panch witnesses to the seizure Panchanama at Ex.P.3. P.W.4 is the Police Constable who have apprehended both accused and produced before the Investigating Officer. P.W.6 is the Medical Officer. The Investigating Officer has not been examined. The other eye witnesses have not been examined.
9. The P.W.1 and 2 in their evidence have categorically stated that on 01.11.2012 at about 7.00 P.M. when they were near the bakery situated at 20th cross of Bhuvaneshwari Nagar, both accused picked up quarrel with P.W.2. They have stated that both accused abused them in filthy language. According to them 9 Crl.Ap.No.1045/2017 accused No.1 given blow to the cheek of P.W.2 with his fist and therefore, tongue of P.W.2 was cut and separated and thereby P.W.2 sustained bleeding injury. They have also stated that both accused have given life threat. These statements made by P.W.1 and 2 are consistent with each other. There is no improvement, contradiction or omission in respect of this act of the accused. P.W.1 and 2 have stated that after the incident P.W.1 taken the P.W.2 to Gayatri nursing home at Vijayanagar and in that hospital P.W.2 took treatment. They have stated that P.W.2 was not in a position to talk and on 03.11.2012 at about 12.45 P.M. the P.W.1 went to the Police Station and filed complaint against both accused. P.W.5 has stated that he was knowing both the accused and P.W.1 prior to the incident. He states that on 01.11.2012 at about 7.00 P.M. he was also present near the bakery and drinking coffee. He states that P.W.1 and 10 Crl.Ap.No.1045/2017 2 were present near the bakery and at that time both accused came and started to abuse the P.W.1 and 2 in filthy language. He has stated that the accused have given blow with fist to P.W.2 and therefore, the tongue of P.W.2 cut and separated. He has stated that when P.W.1 came to the rescue of P.W.2, the accused have given life threat to P.W.1. This statement of P.W.5 is supporting the statement of P.W.1 and 2.
10. P.W.5 is not the friend or enemy of P.W.1, 2 or accused. In the cross-examination it has been suggested that on the date of giving evidence before the court P.W.5 came along with P.W.1 to the court and P.W.1 was in the open court when P.W.5 deposed. These are the statements extracted by the accused in the cross- examination of P.W.5. These statements of P.W.5 and presence of P.W.1 while recording the evidence of P.W.5 do not show the interest of P.W.5 with P.W.2 or on 11 Crl.Ap.No.1045/2017 P.W.1. He is not interested with the victims and even he has no enmity. The P.W.5 is independent witness and he has supported the statement of P.W.1 and 2. Therefore, the trial court has rightly believed the evidence of P.W.1, 2 and 5 in ascertaining the truth of the allegation against the accused for the above said offences.
11. The P.W.6/Medical Officer has stated that on 01.11.2012 at about 8.00 P.M. P.W.2/Manjunath came to the hospital and he has given treatment. He has further stated that at the time of treatment he found head injury, cut injury on the tongue, swelling near both eyes and abrasions including swelling on the face of P.W.2. He has identified the P.W.2 by perusing the photographs at Ex.P.4 and P.5. His certificate is at Ex.P.6. He has given opinion that first two injuries were grievous in nature and other two injuries were simple. The opinion expressed by the P.W.6/expert is not 12 Crl.Ap.No.1045/2017 disputed by the defence. It has been suggested that P.W.1 fell on hard surface in drunken condition and sustained injuries. The witness has denied possibility of injuries shown in Ex.P.6 in the event of falling of a person on hard surface in drunken condition. Therefore, the evidence of P.W.6 is sufficient to hold that as on 01.11.2012 the P.W.2 sustained injuries shown in Ex.P.6 and he took treatment in Gayatri hospital, Vijayanagar, immediately after the incident. The evidence of P.W.6 is trust worthy and it is supporting the evidence of P.W.1, 2 and 5.
12. The evidence of P.W.1, 2, 5 and 6 together show that the accused have assaulted P.W.2 and therefore, the P.W.2 sustained injuries shown in Ex.P.6. The two injuries sustained by P.W.2 were grievous in nature and other injuries were simple in nature. Such injuries are sufficient to attract Section 323 and 325 of 13 Crl.Ap.No.1045/2017 IPC. Even though the P.W.1 and 2 have not stated the motive on the part of the accused for causing the injuries, the knowledge on the part of the accused at the time of causing the injuries to the P.W.2 is sufficient to attract Section 323 and 325 of IPC as there was intention to cause injuries. The evidence on record is sufficient to hold that both accused have intentionally insulted P.W.1 and 2 by using filthy words. Even the evidence on record is sufficient to hold that there was threat to the life of P.W.1 and 2 in the hands of the accused on 01.11.2012. Based on this evidence, the trial court has rightly held both the accused guilty for the above said offences.
13. The P.W.3 is one of the panch witnesses to the seizure Panchanama at Ex.P.3 where-under the shirt of P.W.2 has been seized. The P.W.3 has supported the Panchanama at Ex.P.3. Ex.P.2 is the Panchanama of scene of offence and it was drawn in the presence of 14 Crl.Ap.No.1045/2017 P.W.1 and other two witnesses. The Investigating Officer and other two panch witnesses have not been examined. However, the P.W.1 and 2 including the P.W.5 have stated the place where the incident took place and such place tallies with the place shown in Ex.P.2. Therefore, non-examination of Investigating Officer who has drawn the Panchanama at Ex.P.2 and 3 and who has registered the FIR at Ex.P.1 is not fatal to the case of the prosecution.
14. The trial court has relied upon the decision in 2007 Crl.L.J. 3707, 2008 Crl.L.J. 1467, 2008 Crl.L.J. 3602, 2010 Crl.L.J. 1315 to believe the evidence of P.W.1 and 2. On re-appreciation of evidence of P.W.1, 2 and 5 the court finds that there is consistency in their evidence without any contradiction. The witnesses are trust- worthy and therefore, I hold that the trial court has 15 Crl.Ap.No.1045/2017 rightly believed the evidence of P.W.1, 2 and 5 for the proof of guilt of the accused.
15. The records indicate that the incident took place on 01.11.2012 at about 7.00 P.M. and whereas the first information at Ex.P.1 was given to the Police on 03.11.2012 at about 12.45 P.M. There is a delay in registration of FIR and this delay has to be explained by the prosecution. In order to explain the delay the P.W.1 in Ex.P.1 has stated that P.W.2 was not in a position to talk and he was under the impression that P.W.2 would report the Police and therefore, he did not report the Police till 03.11.2012. This is the explanation offered by the prosecution in the first information. The P.W.1 in his evidence has stated that he admitted the P.W.2 in the hospital and P.W.1 was not in a position to talk. Through this evidence the P.W.1 has explained the delay. 16 Crl.Ap.No.1045/2017
16. This delay explained by the prosecution is to be accepted for the reasons states hereinafter. The P.W.1 and 2 were knowing the accused prior to the incident and therefore, there was no possibility of false implication of the accused. The P.W.2 sustained grievous injuries and he was immediately admitted in the hospital. His tongue was cut, he was not in a position to report the incident to the Police. The Medical Officer who treated the P.W.2 ought to have reported in the incident to the Police who has not informed the Police. The P.W.1 was with the P.W.2 in the hospital and he engaged in providing medical treatment to the P.W.1. The P.W.2 was admitted in the hospital on 01.11.2012 with history of assault. In Ex.P.6 the names of both the accused have been shown. Therefore, there was no possibility either for the P.W.1 or for the P.W.2 to implicate the accused falsely in the case. Considering these materials on 17 Crl.Ap.No.1045/2017 record I hold that the delay has been properly explained by the prosecution and the delay would not create any doubt in the case of the prosecution.
17. The trial court based on the principles in the decision reported in 1994 Crl.L.J. 2141 has held that non-examination of Investigating Officer is not fatal to the case of the prosecution looking to the statements made by the prosecution witnesses. Such finding is found to be proper even after appreciation of evidence of P.W.1, 2 and 5.
18. Looking to the evidence on record and the finding recorded by he trial court, I hold that the trial court has not committed any error on fact and in law in convicting both the accused for the offence punishable under Sections 323, 325, 504, 506 read with Section 34 of IPC. Accordingly, point No.1 is answered and proceed to pass the following:
18 Crl.Ap.No.1045/2017
ORDER The Criminal Appeal filed under Section 374(3) of Cr.P.C. is hereby dismissed.
Send the copy of the
Judgment along with the records
to the lower court.
(Dictated to the Judgment-writer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 4th day of October, 2018).
(B.B. Jakati) LIX Addl. C.C. & Sessions Judge, BANGALORE CITY.19 Crl.Ap.No.1045/2017
04.10.2018:
ORDER The Criminal Appeal filed under Section 374(3) of Cr.P.C. is hereby dismissed.
Send the copy of the Judgment along with the records to the lower court.
(B.B. Jakati) LIX Addl. C.C. & Sessions Judge, BANGALORE CITY.20 Crl.Ap.No.1045/2017