Partly allowed

Uday Kumar B.G. v. Shantha Kumar

Karnataka HC6 Nov 2023CRL.A/1354/2017

Case brief

AI extract

What is this about?

Appeal against acquittal for offences under Sections 504, 324, 307 IPC. The High Court partly allowed the appeal, convicting accused Nos.1 and 2 under Section 324 read with Section 34 IPC for voluntarily causing hurt with surgical blades, but confirmed acquittal for other offences and for accused Nos.3 and 4.

What did the court decide?

Appeal partly allowed; accused Nos.1 and 2 convicted under Section 324 r/w 34 IPC and sentenced to 6 months simple imprisonment plus fine of ₹3,000 each; acquittal for other offences and for accused N

Uday Kumar B.G. Vs Shantha Kumar — Criminal Trial and Appeal | Karnataka HC (2023)

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NC: 2023:KHC:39532-DB CRL.A No. 1354 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6^TH DAY OF NOVEMBER, 2023 PRESENT

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THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY

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AND

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THE HON'BLE MR JUSTICE UMESH M ADIGA CRIMINAL APPEAL NO.1354 OF 2017 (A)

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BETWEEN:

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Uday Kumar B.G. S/o Gopal Krishna, Aged about 25 years, Gandlahalli Village, Kasaba Hobli, Srinivasa Pura Taluk, Kolar District - 563 138.

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…APPELLANT

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(By Sri. Narayana Reddy M., Advocate)

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AND:

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Digitally signed by D HEMA Location: HIGH COURT OF KARNATAKA

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Shantha Kumar

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S/o Muniyappa,

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Aged about 35 years.

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Harish

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S/o Sonnappa

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Aged about 32 years.

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Ashok S/o Sonnappa Aged about 28 years.

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Muniyappa S/o Krishnappa Aged about 65 years.

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Respondent Nos.1 to 4 are residing at Gandlahalli Village, Kasaba Hobli, Srinivasa Pura Taluk, Kolar District - 563 138.

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State by, Srinivasapura Police Station, Represented by State Public Prosecutor, High Court Building, High Court - 560 001.

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…RESPONDENTS

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(By Sri. M. Sharass Chandra, Advocate. for R1 to R4; Sri. P. Thejesh, HCGP for R5)

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This Criminal Appeal is filed under Section 372 Cr.P.C, praying to set aside the Judgment dated 05.07.2017 passed by the I Additional Sessions Judge, Kolar in S.C.No.164/2014 - acquitting the respondents/accused for the offence punishable under Sections 324, 504 and 307 read with Section 34 of IPC.

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This Criminal Appeal, coming on for Final Hearing, this day, Dr. H.B.PRABHAKARA SASTRY J., delivered the following:

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JUDGMENT

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The Original Complainant has filed this appeal under Section 372 of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as 'the Cr.P.C.'),

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challenging the judgment of acquittal dated 05.07.2017, passed by the learned I Additional Sessions Judge, Kolar (hereinafter for brevity referred to as the 'Sessions Judge's Court') in S.C.No.164/2014, acquitting the accused Nos.1 to 4 of the offences punishable under Sections 504, 324 and 307 read with Section 34 of the Indian Penal Code, 1860 (hereinafter for brevity referred to as 'the IPC').

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The summary of the case of the prosecution is that, in connection with drawing a separate water pipeline to the house of accused No.1 from a bore-well tank built for the common use of all the villagers of Gandlahalli which had taken place on 01.12.2013, the accused Nos.1 to 4 in furtherance of their common intention to assault and kill PWs-1 to 3, assaulted PWs-1 to 3 with two surgical blades and two clubs, on 02.12.2013 at 9.30 p.m., in front of Shri Chandramouleshwara Tempe situated at Gandlahalli Village within the limits of complainant police station and in the said process, also abused PWs-1 to 3 in filthy language and inflicted injuries upon them and

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thereby have committed offences punishable under Sections 504, 324 and 307 read with Section 34 of IPC.

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After perusing the materials placed before it and hearing both side, the Sessions Judge's Court framed charges against the accused Nos.1 to 4 for the offences punishable under Sections 504, 324 and 307 read with Section 34 of IPC. Since the accused Nos.1 to 4 pleaded not guilty, the trial was held, wherein, in order to prove the alleged guilt against the accused Nos.1 to 4, the prosecution got examined in all sixteen (16) witnesses as PW-1 to PW-16, got produced and marked documents from Exs.P1 to P18 and got produced Material Objects from MO-1 to MO-5. From the accused Nos.1 to 4 side, ten (10) documents were got marked as Exs.D1 to D10.

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After hearing both side, the learned Sessions

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Judge’s Court, by its judgment dated 05.07.2017, acquitted the accused Nos.1 to 4 of the offences punishable under Sections 504, 324 and 307 read with

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Section 34 of IPC. Challenging the same, the appellantoriginal complainant has preferred the present appeal.

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The appellant-original complainant is represented by the learned counsel and respondent Nos.1 to 4/accused Nos.1 to 4 are being represented by their learned counsel and complainant/respondent No.5 is being represented by the High Court Government Pleader. The learned counsel for the appellant, the learned counsel for the respondents (accused) and the learned High Court Government Pleader are physically appearing in the Court.

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The Sessions Judge’s Court records were called for and the same are placed before this Court.

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Heard the arguments from both side. Perused the materials placed before this Court, including the memorandum of appeal, impugned judgment and the Sessions Judge’s Court records.

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For the sake of convenience, the parties would be henceforth referred to as per their rankings before the learned Sessions Judge’s Court.

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The learned counsel for the appellant in his brief arguments submitted that the evidence of PW-1 to PW-3 is corroborated by the medical evidence of PW-12. The accused had come prepared and armed with blades to kill PWs-1 to 3. Thus, their intention to take away the life of PWs-1 to 3 is established. He further submitted that evidence of PW-4, PW-5 and PW-6 who are the eyewitnesses have fully supported the case of the prosecution and go to show that they have not only witnessed the incident but also have shifted the injured to the hospital by rescuing them from the attack and assault of the accused. He further submitted that, evidence of PWs-1 to 3 who are the injured eye-witnesses is reliable and their evidence is sufficient to hold the accused as guilty of the alleged offences. However, the Sessions Judge's Court without appreciating the evidence lead by the prosecution in its

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proper perspective has passed an erroneous judgment resulting in the acquittal of the accused. As such, the same deserves to be interfered with and the appeal deserves to be allowed.

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The learned High Court Government Pleader appearing for respondent No.5/State in his argument while supporting the argument addressed by the learned counsel for the appellant further added that PWs-1 to 3 have withstood the thorough searching cross-examination from the accused side. Further, PWs-4, 6 and 7 have fully supported the case of prosecution. PW-2 has clearly stated that before inflicting injury, the accused have uttered that

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they are going to kill these persons and thereby had exhibited their intention to kill PWs-1 to 3. With this, he submitted that since the Sessions Judge’s Court had acquitted the accused though there was sufficient evidence available to prove the alleged guilt against the accused, the impugned judgment warrants interference at the hands of this Court.

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11. In support of his arguments, the learned High Court Government Pleader also relied upon a judgment of the Hon'ble Apex Court in the case of LAKSHMAN SINGH Vs. STATE OF BIHAR (NOW JHARKHAND) and connected matters reported in (2021) 9 Supreme Court Cases 191 and submitted that the evidence of PWs-1 to 3 being injured eye-witnesses is sufficient to hold the accused guilty of the alleged offences.

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12. The learned counsel for respondent Nos.1 to 4 in his argument submitted that, the complaint at Ex.P1 describes the weapon used as ‘knife’ and the ‘club’. Whereas, PW-12, the Doctor has stated that he could not

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find any injuries which might have been caused by the assault with the club. The learned counsel further submitted that complaint as well the evidence of PW-1 calls the weapon used as ‘knife’. When infact, MOs-1 and 2 were surgical blades. He further submitted that there is no uniformity in the evidence of PW-1, PW-2, PW-3, PW-4, PW-6, PW-7 and PW-8 about the alleged overt acts of the

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accused as against PW-1 to PW-3. This also creates a doubt in the case of prosecution. He further submitted that PWs-1 to 9 are inter-se relatives and as such, they are interested witnesses. Hence, the Sessions Judge’s Court has rightly proceeded not to solely rely upon their evidence. The learned counsel also stated that all injuries said to have been found on PWs-1 to 3 were simple in nature and had really the accused intended to take away the life of anyone of them, they would have used more deadly weapons and would have inflicted grievous injuries

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upon anyone of PWs-1 to 3. Thus, it is considering these aspects, since the Sessions Judge’s Court has rightly acquitted the accused of the alleged offences, the same does not warrant any interference at the hands of this Court.

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After hearing the learned counsels from both side, the points that arise for our consideration in this appeal are:

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(i) Whether the prosecution has proved beyond reasonable doubt that on the date, 02.12.2013 at about 9.30 p.m., in front of Shri Chandramouleshwara temple situated at Gandlahalli village within the limits of complainant police station, the accused Nos.1 to 4 in furtherance of their common intention, intentionally insulted and thereby gave provocation to PW-1 to PW-3 intending and knowing it to be likely that such provocation would cause them to break the public peace or to commit any other offence, thereby have committed an offence punishable under Section 504 read with Section 34 of IPC?

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[ii] Whether the prosecution has proved beyond reasonable doubt that on the date, time and place mentioned above, in point No.1, the accused Nos.1 to 4 in furtherance of their common intention inflicted injuries upon PWs-1 to 3 by voluntarily assaulting them with surgical blades and clubs and voluntarily caused hurt and thereby have committed an offence punishable under Section 324 read with Section 34 of IPC?

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[iii] Whether the prosecution has proved beyond reasonable doubt that on the date, time and place mentioned at point No.1 above, the accused Nos.1 to 4 in furtherance of their common intention to cause the death of PWs-1 to 3 have

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assaulted PWs-1 to 3 with surgical blades and clubs with the knowledge and intention of causing the death of PWs-1 to 3 and by their process had the accused be and thereby, had PW-1 or PW-2 or PW3 being dead in the incident, the accused would have been guilty of murder, and thereby, have committed an offence punishable under Section 307 read with Section 34 of IPC?

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[iv] Whether the impugned judgment of acquittal warrants any interference at the hands of this Court?

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14. Among the sixteen (16) witnesses examined by the prosecution, PWs-1 to 9 have spoken about the alleged incident. Among these three (3) witnesses, PW-1, PW-2 and PW-3 claim themselves to be the injured witnesses in the alleged incident.

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PW-1/CW-1/Udaya Kumar, PW-2/CW-2/ Venkata chalapath y, PW-3/CW-3/Gopalakrishna who claim to be the injured in the alleged incident have uniformly stated in their evidence that, with respect of drawing of water pipeline in the village, a quarrel had taken place between accused

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and themselves on the previous day of the incident, i.e., on 01.12.2013. On the next day, i.e., on 02.12.2013, there was a lamp ceremony (Lakshadeepothsava) going on at Shri Chandramouleshwara temple in their village, Gandlahalli. On that day, at about 9.30 p.m., while they had been to the temple and were in the precincts of the temple, accused Nos.1 to 4 armed with weapons like knife

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and club approached them and abusing them in filthy language, assaulted them. PWs-1 and 2 have stated that accused No.1-Shantha Kumar assaulted PW-2

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Venkatachalapathy with the knife and inflicted bleeding injuries. Accused No.2-Harish assaulted PW-1 Udayakumar with a similar knife and inflicted bleeding injuries. PWs-1 and 2 have further stated that accused No.3 assaulted PW-3 Gopalakrishna. PW-2 has further stated that accused No.4 assaulted them all with club.

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PW-1 in his evidence has further stated that

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accused assaulted PW-3 Gopalakrishna when he rushed to his rescue. Though the villagers attempted to rescue

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them, however, the accused threatened them. The witness has further stated that his Uncle, by name, Manjunatha joined by others shifted them to R.L.Jalappa Hospital at Kolar in a Car.

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The witness has further stated on the next date morning, i.e., on 03.12.2013, the police visited R.L.Jalappa Hospital and recorded his statement, which statement, the witness has identified at Ex.P1, stating that the knives used by the accused in assaulting them were the knives used for conducting operation, the witness has identified MOs-1 and 2 calling them as surgery blades. Identifying two clubs at MOs3 and 4, the witness has stated that those two are the eucalyptus clubs used by the accused in assaulting them. He also identified a nicker at MO-5 stating that the same was worn by Venkatachalapathy (PW-2) at the time of the incident.

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This witness was subjected to a detailed crossexamination wherein he gave some more details about the incident. He even stated that at the time of assaulting them, the accused were abusing them in filthy languages and in return, these people were also abusing them in the same

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degree. He also stated that a gathering surrounded around them while the incident was going on. However, this witness in his cross-examination has also stated that initially, when he noticed about the incident, he was at a distance of about 100 meters from the place of the incident, seeing from there the accused assaulting PW-2/ Venkatachalapathy, he rushed to the spot and by the time, he reached the spot, Venkatachalapathy, the injured had already fallen on the earth. At that time, accused No.2/Harish assaulted him (this witness) with a surgery blade and inflicted bleeding injuries. He denied the suggestion that due to political rivalry, a false case has been lodged against him.

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PW-2 and PW-3 were also cross-examined from

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the accused side in detail. However, giving the topography of the place of offence, the witnesses have given more details about the alleged incident. PW-2 has even stated that the villagers who were there, attempted to pacify the quarrel but they could not. He denied the suggestion that,

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at the recommendation of one Shri.Srinivasa, an IPS Police Officer, a false case has been lodged against the accused by them.

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PW-3 in his cross-examination after giving some more details about the incident has also stated that in the process, there was some altercation between the accused and these people, which continued for about thirty (30) minutes. He denied the suggestion that couple of incriminating statements stated by him in his evidence has not been stated at the earliest opportunity by him before the police. This witness also denied a suggestion that due to political rivalry, a false case has been lodged against the accused.

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PW-4/CW-4/Shivakumar and PW-6/CW-6/

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Guruprasad in their evidence like PW-1 have stated that previous day to the incident, i.e., on 01.12.2013, there was a quarrel between the accused and the injured with

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respect to drawing a separate water line to the house of accused No.1/Shantha Kumar. In the said connection,

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when the villagers rejected the proposal of accused No.1 to have a separate water line to his house from a public bore-well, the enraged accused No.1/Shantha Kumar had damaged the bore-well pipe as well the switch board. Stating so, both PWs-4 and 6 have stated that in the said background, the alleged incident had taken place on the night of 02.12.2013 near Shri Chandramouleshwara temple in their village, Gandlahalli when hundreds of people have gathered for a lamp festival in the said temple. It was at that time, the accused inflicted injuries upon PW-1, PW-2 and PW-3. Both these witnesses have stated that accused No.1 and accused No.2 assaulted the injured with the blades inflicting bleeding injuries upon them. However, neither of them have alleged any overt acts as against accused Nos.3 and 4. Both these witnesses have stated that, joined by PW-5 (CW-5) Arunkumar, these people shifted the injured PWs-1 to 3 in a Car to R.L.Jalappa Hospital at Kolar and got them admitted there.

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In the cross-examination of PW-4, after reading out some portions of the statement of the witness before the Investigating Officer under Section 161 of Cr.P.C., it was elicited that Ex.D4, Ex.D5 and Ex.D6 were not stated by him as such it was an omission made by the witness in his evidence, which statement he has made before the Investigating Officer. Similarly, in the cross-examination of PW-6, it was elicited that portion of his statement before the Investigating officer marked at Ex.D1 was an omission in his evidence. However, both these witnesses adhered

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to their original version about the occurrence of the incident and they being eye-witnesses to the incident. Both these witnesses have denied the suggestion that due to political rivalry, a false case has been lodged against the accused by the complainant.

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PW-5/CW-5/Arunkumar whom the prosecution projected as an eye-witness to the incident though has spoken about the alleged incident and PWs-1 to 3 sustaining injuries in the said incident, however, stated

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that he was not an eye-witness to the incident since by the time, he rushed to the spot after noticing the altercation that was going on, the incident had already completed. However, the witness has stated that such an incident of an assault upon PWs-1 to 3 has taken place on the night of 02.12.2013 in front of Shri Chandramouleshwara temple of Gandlahalli. This witness has also stated that immediately after the incident, the injured were shifted to R.L.Jalappa Hospital at Kolar. The witness has stated that the next day after the incident, he was enquired by the police.

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Since this witness has not fully supported the case of the prosecution and though stated about the incident but also contended that he was not an eye-witness to the incident, he was treated as hostile at the request of the prosecution and the prosecution was permitted to crossexamine him. However, even in his cross-examination, the prosecution could not elicit from the witness that he was an eye-witness to the incident. Still, the witness

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maintained that he knows about the incident since after noticing the altercation, by the time he rushed to the spot, the incident had just then completed.

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This witness was subjected to detailed cross-

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examination from the accused side wherein he adhered to his original version. He has shown his presence in a place very near to the place of the incident, hardly, about 50 meters from the place of incident. However, in his crossexamination, he has attempted to give an impression that, by the time he rushed to the spot, the altercation was still going on and he attempted to pacify both side. He also stated that he saw the accused No.1 was holding a blade in his hand and he has also seen PW-2 sustaining bleeding injuries on his head and lying on the earth. Thus, the evidence of this witness though is unsafe to believe as an eye-witness witnessing the occurrence of the incident in its entirety, however, can be believed to the extent that an incident of attack upon PWs-1

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to 3 and assaulting them had taken place on the date,

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time and place alleged in the charge and PWs-1 to 3 sustaining bleeding injuries in the incident.

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PW-7/CW-8/Shivakumar is another witness

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whom the prosecution projected as an eye-witness to the incident. This witness also, in his evidence, apart from reiterating about the previous day's quarrel regarding drawing of a separate water line from bore-well to the house of accused No.1 has proceeded to speak about the alleged incident dated 02.12.2013. This witness specifically stated that on that day, in the night of about 9.30 pm, outside the Chandramouleswara temple compound, accused No.1 and accused No.2 inflicted injuries upon PW-2 and PW-1 with operation knives and caused bleeding injuries upon them. At that time, when PW-3, Gopalakrishna rushed to the rescue of the injured, the accused assaulted him and inflicted injuries upon him also. It is then, he (this witness) joined by others, including PW-5 and PW-6, shifted the injured to R.L.Jalappa Hospital in the Car belonging to PW-5. This

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witness, in his cross-examination, adhered to his original version and did not permit the defence side to weaken his evidence given in his examination-in-chief.

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PW-1, PW-2, PW-3, PW-4 and PW-7 even

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identified two surgical blades at MOs-1 and 2 as the weapons used by accused Nos.1 and 2 in inflicting injuries upon PWs-1 to 3. PW-1 and PW-2 identified two clubs at MOs-3 and MO-4 as the one’s used by the accused in assaulting them. PWs-1 and 2 also identified a nicker at MO-5. PW-1 stated that the said nicker was worn by PW-2 at the time of the incident. However, PW-2 stated that the said nicker must have been worn by accused No.1 Even PW-3, PW-4 and PW-7 also have identified the said nicker at MO-5 stating that the said nicker was worn by PW-2 at the time of the incident. Thus, the above witnesses apart from narrating about the incident and claiming themselves as eye-witnesses have also identified the weapons alleged to have been used in the commission of the crime.

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PW-8/CW-10/Chowdappa though was

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projected as another eye-witness to the alleged incident, however, has stated that accused Nos.1 and 2 assaulted PW-1 and PW-2 with blades and inflicted bleeding injuries. It was at that time, these people pacified them and rescued the assaulted. Stating so, the witness has identified the two surgical blades at MO-1 and MO-2 as the weapons used by the accused. However, since this witness did not speak about the involvement of accused Nos.3 to 5 in the commission of the crime and the use of two clubs at

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MOs-3 and 4, the witness was treated as hostile and the prosecution was permitted to cross-examine him.

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Since the prosecution could not get any

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support from the witness about the involvement of accused Nos.3 and 4 in the commission of the crime and making use of two clubs at MOS-3 and 4 by them except bringing out that the portions marked at Exs.D9 and D10 were the portions of the statement though given before

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the Investigating Officer has not been stated by the witness in his evidence, the defence could not elicit any further statement favourable to it in the cross-examination of this witness.

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PW-9/CW-9/Mahesh was one more witness examined by the prosecution showing him as an eyewitness to the alleged incident. Though this witness stated that on the day of lamping ceremony in the temple in their village at Gandlahalli, some altercation had taken place. However, he stated that he does not know that, who assaulted whom in the said altercation. But this witness stated that in the said incident, he has shifted injured PW1, PW-2 and PW-3 to R.L.Jalappa Hospital for their treatment. This witness was treated as hostile and the prosecution was permitted to cross-examine him. However, he did not support any further the case of the prosecution and adhered to his original version. This witness was not cross-examined from the accused side. As such, the evidence of this witness about the incident of

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altercation on the day of lamping ceremony in the temple of their village and PWs-1 and 3 sustaining injuries and further those three injured being shifted to R.L.Jalappa Hospital for their medical treatment has remained undenied from the accused side.

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The above evidence of PW-1 to PW-9 speaks about the occurrence of the incident. Their evidence, more particularly of PW-1, PW-2, PW-4, PW-6 and PW-7 further shows that, on the previous day, i.e., on 01.12.2013, a dispute had taken place between accused No.1/Shantha Kumar and PWs-1 to 3 in connection with the drawing of water pipeline from the village common bore-well. In that connection, accused No.1 was said to have insisted for drawing a separate water line to his house, which was opposed by other people including PWs-1 to 3. It is in the said background, according to PWs-1 to 9, the incident in question is said to have taken place on 02.12.2013. The evidence of these witnesses about there being a lamp festival at Shri Chandramouleshwara temple at Gandlahalli

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on 02.12.2013 and that a large gathering had assembled near the temple to witness the festival has remained undenied and undisputed. There is no specific denial from the accused side in the cross-examination of any of the above witnesses that neither the accused nor PW-1, PW-2 and PW-3 did participate in the said festival, as such, were present in the temple premises or precincts at the time of the incident. Infact, nowhere in the cross-examination of PWs-1 and 2, the occurrence of the incident of PW-1, PW2 and PW-3 being attacked and assaulted by some persons

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and PW-1 to PW-3 sustaining bleeding injuries in the incident has been denied. It is only from the evidence of PW-3 onwards upto PW-9, a suggestion was made denying the occurrence of the incident but no such suggestion was made in the cross-examination of PWs-1 and 2. It was only suggested to PW-1 and PW-2 in their crossexamination that accused have not assaulted PW-1 to PW3 and inflicted injuries upon them. But it was not denied that, an incident of assault upon PW-1 to PW-3 had taken

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place on that night, where PW-1 to PW-3 had sustained bleeding injuries.

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PW-1 to PW-3 have uniformly stated that

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they were assaulted by the accused, more particularly, from accused No.1 and accused No.2 and all these three witnesses sustained bleeding injuries in the incident. Their evidence is further corroborated with the evidence of PW4, PW-6, PW-7 and PW-8. Though the learned counsel for the respondent Nos.1 to 4 contended that there is a discrepancy among these witnesses about the individual overt acts of the accused, however, a comparison of the evidence of PW-1, PW-2, PW-3, PW-4, PW-6, PW-7 and PW-8 about the alleged overt acts of accused Nos.1 to 4 gives no room to accept the said argument of the learned counsel for respondent Nos.1 to 4, particularly, in respect

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to the alleged overt acts of accused No.1 and accused No.2. All these witnesses except PW-6 have uniformly stated that it was accused No.1 who assaulted PW-2 and inflicted bleeding injuries upon him and it was accused

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No.2 who assaulted PW-1 and inflicted bleeding injuries upon him. In addition to that, PW-3 has further added that accused No.2 assaulted even PW-2 also, so also, accused No.1 also assaulted PW-1. However, among these six (6) witnesses, it was only PW-2 who has spoken about the alleged involvement of accused Nos.3 and 4 in inflicting injuries upon the injured. Though PW-1 has stated that accused Nos.3 and 4 were present at the time of the incident, however, he has not attributed any overt acts against them. Similarly, PW-3, PW-4, PW-6, PW-7 and PW-8 have not attributed any overt acts as against accused Nos.3 and 4. In the said circumstance, it is hard to believe the involvement of accused Nos.3 and 4 in the alleged commission of the crime, and about they sharing any common intention with accused Nos.1 and 2. On the other hand, the uniformity in the evidence of PW-1, PW-2, PW-3, PW-4, PW-7 and PW-8 go to show only one point that accused No.1 has assaulted PW-2 and accused No.2 has assaulted PW-1 with surgical blades and inflicted injuries upon PW-1 and PW-2.

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One of the contention of the learned counsel

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for respondent Nos.1 to 4 was that there was misdescription of the alleged weapon. In the complaint, the alleged weapon used in the commission of the crime is shown to be ‘knife’, whereas the weapons marked as MO-1 and MO-2 are surgical blades. He further submitted that witness also have used the word ‘knife’ in describing the weapon, when infact, it is surgical blade.

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No doubt, the description of the weapon said

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to have been used by accused Nos.1 and 2 in assaulting PW-1 and PW-2 is described as knife in the complaint, which is given by none else than PW-1 himself. The said witness even in his evidence also has initially described the said weapon as ‘knife’ only. However, in the second paragraph of the examination-in-chief at page No.2, he

¶140

has described the said weapon as the knife used in conducting operation. Immediately, in the very next sentence, he has used the word ‘surgery blade’ while describing those two weapons and identifying them at MO-

¶141

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1 and MO-2. This clearly go to show that the witnesses, more particularly, PW-1 though had a general knowledge of what a knife is, but could not specifically distinguish too precisely, a surgical blade from a knife. As such, as a common knife in colloquial language, he identified Mos-1 and 2 as knife and described it as a knife used in conducting operation. Similarly, PW-3 also has stated that it is a surgical knife. PW-4 who claims himself to be one more witness to the incident has in his examination-inchief itself has stated that PWs-1 to 3 were assaulted by

¶143

the accused with the use of surgery blades. Therefore, the alleged mis-description of MO-1 and MO-2 as knife at one place and surgery blade at another place would not take away the case of the prosecution. Rather, as observed above, PW-1 has made use of those two words as interchangeable, which was his limitation of knowledge about the weapon. As such, the argument of the learned counsel

¶144

for respondent Nos.1 to 4, as well, the observation of the Sessions Judge’s Court that there is some discrepancy in

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describing the weapon at MOs-1 and 2, which affects the case of the prosecution is not acceptable.

¶147

The learned counsel for respondent Nos.1 to 4 also canvassed a point that PWs-1 to 9 are interested witnesses. As such, the Sessions Judge’s Court has rightly disbelieved their evidence.

¶148

No doubt, PWs-1 to 3 have shown to have been relatives inter-se . However, it is not the case of the prosecution and not even the case of the accused that the remaining witnesses, i.e., PW-4 to PW-9 are all the relatives of the injured. Assuming for a moment that they are all from the same village and may be, some amongst them belonging to the same political party, by that itself, it cannot be inferred that they are interested witnesses aiming at ensuring the conviction of the accused in the crime. As such, when the evidence of PWs-1 to 9, otherwise is also trustworthy and reliable. Merely because,

¶149

some among them are relatives with one another and

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some of them belonging to the same political party cannot make their evidence, a suspectable one.

¶153

From the above analysis, it has come out clearly that evidence of PW-1 to PW-3 about the incident and involvement of accused Nos.1 and 2 has come in a uniform manner and has withstood the thorough searching cross-examination from the accused side. The Hon’ble Apex Court in Lakshman Singh's case (supra) was pleased to observed that the evidence of injured witness is entitled to a great weight and very cogent and convincing grounds are required to discard his/her evidence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his

¶154

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evidence on basis of major contradictions and

¶156

discrepancies therein. Further, being an injured witness, his presence at the time and place of occurrence cannot be doubted.

¶157

Thereafter, the Hon’ble Apex Court in its another judgment in Ashok Kumar Vs. State of Uttar Pradesh and connected matters in (2022 SCC OnLine SC 1525) in para Nos.134 and 183 was pleased to reiterate its observation regarding the evidentiary value of the injured eye-witnesses. By referring to its several of the previous cases including Lakshman Singh's case (supra) it has reiterated the principle laid down by it that the evidence of the injured witness cannot be discarded with and can be the sole basis for conviction, provided, the evidence of such an injured eye-witness imbibes confidence in the Court to believe the same.

¶158

In the instant case, it is not only the evidence of PWs-1 to 3 as injured witness which has uniformly alleges overt acts against the accused, more

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particularly, as against accused Nos.1 and 2, but also the evidence of PW-4, PW-6, PW-7 and PW-8, which further corroborates with the evidence of PWs-1 to 3. Among these, the evidence of PW-6 and PW-7 further go to show that, with the help of others, they shifted the injured to R.L.Jalappa hospital immediately after the incident. In that regard, the evidence of PW-9 that injured PW-1, PW-2 and PW-3 were shifted in his Car to R.L.Jalappa hospital has remained undenied and undisputed. Thus, the evidence of these witnesses unequivocally go to show that

¶161

it was accused No.1 and accused No.2 alone who inflicted injuries to PW-2 and PW-1 respectively by assaulting them with surgical blades, which are at MO-1 and MO-2.

¶162

35. All the above witnesses have stated that in

¶163

the incident, PW-1, PW-2 and PW-3 sustained bleeding injuries. The evidence of PW-1 to PW-3 that they sustained

¶164

bleeding injuries due to the assault committed upon them has been further corroborated by the medical evidence of PW-12 (CW-13/Dr.Bharath), the Casualty Medical Officer.

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The said witness in his evidence has stated that on 02.12.2013 at about 10.20 p.m., PW-1, PW-2 and PW-3 visited the hospital with history of assault. On examining PW-1 (Udayakumar), he noticed that the injured had sustained a cut lacerated wound of 8 X 3 cm present over the anterior aspect of right arm. In his examination of PW-2 (Venkatachalapathy), the Doctor noticed two lacerated wounds over the injured; one over the scalp midline parietal region measuring 8 X 5 cm and another over left flexor region near wrist. According to PW-12, the Doctor, PW-3 (Gopalakrishna) was found sustaining a deep cut lacerated wound measuring 5 X 2 cm over the dorsal surface of left hand. The Doctor has opined that all the above injuries found on PW-1, PW-2 and PW-3 were simple in nature. Stating that he has issued wound certificate with respect to the same, the witness has identified three wound certificates, at Ex.P4, Ex.P5 and Ex.P6 and his signatures therein. The witness has also opined that the injuries found on the injured, which are mentioned in Exs.P4 to P6 are likely to occur if a person is

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assaulted with MO-1 and MO-2. In his cross-examination, the witness ruled out the possibility of the injuries found on PWs-1 to 3 having been caused due to an assault with clubs at MO-3 and MO-4. On the said aspect, the argument of the learned counsel for respondent Nos.1 to 4 that the evidence of eye-witnesses to the incident, as well, the medical evidence makes it hard to believe the use of the clubs at MO-3 and MO-4 and the involvement of the accused Nos.1 to 4 to the commission of the crime, cannot be over-looked or rejected. Thus, the evidence of the injured witnesses, i.e., PW-1 to PW-3 stands not only corroborated by the evidence of eye-witnesses, i.e., PW-4, PW-6, PW-7 and PW-8 but also stands corroborated by the medical evidence of PW-12.

¶169

Even though the said PW-12 in his cross-examination at

¶170

one place has admitted a suggestion that the surgical blades, MO-1 and MO-2 cannot be held by hands without the handle, however, the same would not take over the case of prosecution for the reason that, handling of MO-1 and MO-2 by a Doctor is different from making use of the instrument in a crude

¶171

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manner by a common man or an assailant who intend to attack and inflict injuries upon another person. It is not the evidence of PW-12, the Doctor that without a handle, the said instrument cannot be handled or made use of inflicting injuries upon the attacked. As such, merely because a handle is required to hold the said surgical blade, according to medical opinion, would not lead anyone to conclude that without the handle, the said surgical blade cannot be held or used in an un-scientific manner by anyone including the accused. This inference

¶173

gains support also for the reason that the very injured eye-witnesses, i.e., PW-1 to PW-3 have identified MO-1 and MO-2 as the weapon with which, they were inflicted injuries by the accused Nos.1 and 2. Further, PW-4, PW-6, PW-7 and PW-8 also have stated that PWs-1 to 3 were assaulted by accused Nos.1 and 2 with surgery blades and have identified the weapon in the Court. Even the very same Doctor, i.e., PW-12 also has stated in his evidence that the injuries found on PWs-1 to 3 are likely to occur if a person is assaulted with MO-1 and MO-2. As such, the stray

¶174

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sentence of PW-12 that MO-1 and MO-2 cannot be held by hand without a handle and absence of recovery of seizure of any such handle would not by itself take away the case of prosecution or imbibes any serious doubt in the case of the prosecution. As such, the last doubt expressed by the learned counsel for respondent Nos.1 to 4 as an obstacle to believe the case of prosecution also does not find a place in disbelieving or suspecting the case of prosecution. However, the learned Sessions Judge’s Court did not appreciate the evidence placed before it in proper perspective. On the other hand, in magnifying smaller doubt to a greater extent has proceeded to disbelieve the case of prosecution. Since the said finding of the Sessions Judge’s Court on the said point, according to our view was not warranted in the circumstance of the case and more particularly, in the light of the evidence placed before us, the same warrants interference at the hands of this Court.

¶176

However, as observed above, even the evidence lead by the prosecution is not sufficient to hold that accused Nos.3

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and 4 were also involved in the commission of the crime.

¶179

Their mere alleged presence as per the evidence of PW-1 would not make them as a sharer of the common intention with the remaining accused Nos.1 and 2. Simultaneously, in the absence of any evidence lead-in against accused Nos.3 and 4 by any of the remaining witnesses including PW-2 and PW-3 it makes very unsafe to hold accused Nos3 and 4 also as equal partisans along with accused Nos.1 and 2 in the commission of the crime. As such, they deserve to enjoy the benefit of doubt expressed in their favour by the Sessions Judge’s Court.

¶180

From the above analysis, though it is proved

¶181

that the accused Nos.1 and 2 have by using MO-1 and MO-2, which are the surgical blades, as such, weapons which may inflict serious injuries upon a person, have inflicted injuries upon PWs-1 to 3 however, the prosecution could not able to place cogent evidence to show that, while inflicting injuries to PWs-1 to 3 by using MO-

¶182

1 and MO-2, the accused Nos.1 and 2 had any intention to

¶183

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cause death of PW-1 or PW-2 or PW-3 or all of them. Though the learned HCGP as well the learned counsel for the appellant in their arguments contended that PW-2 has stated that while assaulting him, the accused were telling that they are going to kill him, however, such a mere alleged utterance, in the circumstances of the present case, cannot be considered as the presence of any motive or knowledge on the part of the accused to kill PW-1 or PW-2 or PW-3. According to PW-1, among the gathering gathered there, a large group numbering about fifty (50) persons were the persons known to them and of their group. According to the very same witness, hardly there were any other supporters or the persons belonging to the accused. Under such circumstance, it is hard to believe that accused Nos.1 and 2 had any intention to eliminate PW-1 or PW-2 or PW-3. Moreover, had really the accused, more particularly, accused Nos.1 and 2 had any intention to kill PW-1 or PW-2 or PW-3, then, they would have come prepared with a more forceful or strong weapon to accomplish their purpose and would have achieved their

¶185

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purpose. On the other hand, in the instant case, the weapon

¶187

used is said to be two surgical blades measuring 2 to 3 inches in their length and the injury caused to PWs-1 to 3 are also simple in nature. Under the said circumstance, it cannot be held that the accused either had knowledge or intention to cause death of PW-1 or PW-2 or PW-3. As such, the act of accused Nos.1 and 2 cannot be called as the one attracting the offence punishable under Section 307 of IPC.

¶188

On the other hand, as analysed above, the act of the accused voluntarily causing injuries upon PWs-1 to 3 by making use of the weapon like sharp-edged surgery blades at MO-1 and MO-2 would attract the offence punishable under Section 324 of IPC.

¶189

Since accused Nos.1 and 2 being simultaneously acting in an uniform manner by attacking PWs-1 to 3 and inflicting multiple injuries upon them and the previous day incident of the quarrel between them with respect of drawing of a water pipeline would clearly go to show that accused Nos.1 and 2 had approached PWs-1 to 3 on the date of incident with pre-determined mind of attacking and assaulting

¶190

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PWs-1, 2 and 3. As such, it was not only they had common intention but they shared the common intention at the time of commission of the offence also. As such, Section 34 of IPC is also attracted in the instant case. Thus, the act committed by the accused proved to be an offence punishable under Section 324 read with Section 34 of IPC.

¶192

Though according to the prosecution, the accused in the commission of the crime also abused PWs-1 to 3 in filthy language and provoked them to break the public peace and in that regard, though PW-2 has stated that his people also retaliated with people abusing to them, however, none of the witnesses have stated about what abusive language or words used by the accused, more particularly, accused Nos.1 and 2 in the incident, which was sufficient to provoke PWs-1 to 3 to commit breach of public peace. The evidence of PWs-1 to 3 that accused abused them in filthy language itself is not sufficient to hold that accused made use of such words,

¶193

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unless the very words used by the accused, their gravity and the reaction, which those words received from the other side are brought to the notice of the Court through the cogent evidence. Since the prosecution has not placed any such evidence either through oral evidence or documentary, it is unsafe to hold the accused as guilty for the offence punishable under Section 504 read with Section 34 of IPC.

¶196

The motive behind the commission of such crime as stated by PW-1, PW-2, PW-3, PW-4, PW-6 and PW-7 is the dispute with respect to the alleged quarrel said to have taken place on 01.12.2013 with respect to drawing water pipeline from common bore-well to the villagers. Since the request of accused Nos.1 to 4 to have a separate water pipeline to their house was opposed by the villagers, more particularly, from PWs-1 to 3, the incident of attacking and assaulting PWs-1 to 3 on the date of incident has taken place. The same is evidenced in the evidence of the above witnesses. As

¶197

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such, the prosecution could able to establish the motive behind the commission of crime of voluntarily causing hurt to PWs-1 to 3 using dangerous weapons and by dangerous means.

¶199

The defence of the accused were three fold in nature. The common defence, which has been taken from the accused side by making suggestion to PW-1, PW2, PW-3, PW-4 and PW-6 was that, the accused and PWs-1 to 3 belong to two different political groups, as such, due to political rivalry, a false case has been lodged against them. The second defence put forth by the accused in the cross-examination of PW-2 was that, one Shri.Srinivas said to be an IPS Officer was the relative of PW-2. As such, at the recommendation of the said Shri.Srinivas, a false case has been lodged against the accused. However, PW-2 had denied the said suggestion as false. No material in that regard has been placed by the accused, muchless, the alleged IPS Officer has falsely implicated the accused in a criminal case.

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Lastly, by making a suggestion to PW-14, the

¶202

Investigating Officer that he has filed a false charge-sheet due to political pressure, the accused attempted to take one more defence. However, the said Investigating Officer denied the said suggestion as true. As such, the defence taken by the accused also could not withstand and could not even succeed to weaken the case of the prosecution.

¶203

On the other hand, the evidence lead by the prosecution and as analysed above, the same would clearly prove beyond reasonable doubt that accused Nos.1 and 2 in furtherance of their common intention voluntarily caused hurt to PW-1, PW-2 and PW-3 by making use of dangerous weapons and in dangerous manner and thus, have committed offence punishable under Section 324 read with Section 34 of IPC. Since the Sessions Judge’s Court has failed to appreciate the evidence lead by the prosecution in proper perspective and presumed several things on its own, which were not warranted in the facts and circumstances of the case, the same warrants interference

¶204

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at the hands of this Court. Accordingly, we proceed to pass the following:

¶207

O R D E R

¶208

[i] The Appeal stands partly

¶209

allowed ;

¶210

[ii] The judgment of acquittal dated 05.07.2017 passed by the learned I Additional Sessions Judge, Kolar in S.C.No.164/2014 acquitting accused No.1/Shantha Kumar, son of Muniyappa; accused No.2/Harish, son of Sonnappa stands set aside, so far as acquitting accused Nos.1 and 2 for the offence punishable under Section 324 read with Section 34 of IPC;

¶211

[iii] Accused No.1/Shantha Kumar and accused No.2/Harish are convicted for the offence punishable

¶212

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under Section 324 read with Section 34 of IPC;

¶214

[iv] However, the judgment of acquittal of accused Nos.1 and 2 for the offences punishable under Sections 504 and 307 read with Section 34 of IPC and acquittal of accused Nos.3 and 4 for the offences punishable under Sections 504, 324 and 307 read with Section 34 of IPC stands confirmed.

¶215

HEARING ON SENTENCE

¶216

Heard the learned counsel for accused Nos.1 and 2, the learned counsel for the appellant and the learned HCGP for respondent No.5 regarding the sentence.

¶217

The learned counsel for respondent Nos.1 and 2 (accused Nos.1 and 2) submitted that the alleged incident had taken place about ten (10) years ago and that, all the parties including both the accused and injured

¶218

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are living a peaceful life in their village. He also submitted that accused No.2 is a practising Advocate and is totally innocent about the incident. Further stating that, accused Nos.1 and 2 are family holders having dependants upon them, prays for a most lenient view by ordering the minimum sentence.

¶220

Per contra , the learned counsel for the appellant and the learned HCGP submits that being the person having the knowledge of worldly affairs since the accused Nos.1 and 2 have committed a serious offence and inflicted bleeding injuries upon PWs-1 to 3, they deserve to be punished with maximum sentence that can be awarded for the proven guilt.

¶221

It is the sentencing policy that the sentence ordered must be proportionate to the gravity of the proven guilt. It shall be neither exorbitant nor for the name-sake.

¶222

Hence, keeping the above principle of the sentencing policy and considering the facts and circumstances of the case and also the alleged mitigating

¶223

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factors canvassed before the Court, we are of the view that accused Nos.1 and 2 are not entitled or eligible for the benefit of the Probation of Offenders Act, 1958. They deserve to be subjected to an order of sentence. Accordingly, we proceed to pass the following:

¶225

ORDER ON SENTENCE

¶226

[1] The accused No.1/Shantha Kumar, son

¶227

of Muniyappa and accused No.2/Harish, son of Sonnappa, residents of Gandlahalli Village, Kasaba Hobli, Srinivasa Pura Taluk, Kolar District are sentenced to undergo simple imprisonment for a period of six (6) months and to pay a fine of `3,000/- (Rupees Three Thousand only) each

¶228

and in default of payment of fine, to undergo a further simple imprisonment for fifteen (15) days for the offence punishable under Section 324 read with Section 34 of the Indian Penal Code, 1860.

¶229

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[2] The remaining part of the impugned judgment under appeal regarding destruction of MO-1 to MO-5 remains unaltered.

¶232

[3] The accused Nos.1 and 2 are entitled for the benefit of set-off under Section 428 of the Code of Criminal Procedure, 1973.

¶233

[4] Out of the fine amount paid by accused Nos.1 and 2, if any, PW-1, PW-2 and PW-3 are be given with a sum of `2,000/(Rupees Two Thousand only) each as compensation under Section 357 of the Code of Criminal Procedure, 1973.

¶234

[5] The accused Nos.1 and 2 (respondent Nos.1 and 2) herein shall surrender before the learned Sessions Judge's Court within forty five

¶235

(45) days from today and serve the sentence

¶236

as ordered above by this Court.

¶237

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(respondent Nos.1 and 2) are entitled for free copy of this judgment.

¶239

Registry to transmit a copy of this judgment along with Sessions Judge's Court records to the concerned Sessions Judge's Court immediately, for doing needful in the matter.

¶240

Sd/JUDGE

¶241

Sd/JUDGE

¶242

DH List No.:1 Sl No.:12

Uday Kumar B.G. v. Shantha Kumar

Case brief

What is this about?

What did the court decide?

Uday Kumar B.G. v. Shantha Kumar

Case brief

What is this about?

What did the court decide?

What the court decided

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