Partly allowed

Kum. Karishma v. Azgar

Karnataka HC22 Nov 2023CRL.A/1786/2017

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed the appeals against the acquittal of the accused for attempt to murder under Section 307 IPC, holding that multiple blows with an axe on vital parts established intention to kill, and sentenced him to 10 years' imprisonment. The acquittal for outraging modesty and POCSO offences was upheld.

What did the court decide?

The accused was convicted under Section 307 IPC and sentenced to 10 years' simple imprisonment and a fine of Rs. 20,000/-. The conviction under Section 324 IPC was modified. The acquittal under Sectio

Kum. Karishma Vs Azgar — Murder and Culpable Homicide | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22^ND DAY OF NOVEMBER, 2023

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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. 1786 OF 2017 (A)

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C/W

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CRIMINAL APPEAL NO. 491 OF 2017 (A)

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IN CRL.A.NO.1786/2017

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BETWEEN:

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KUM. KARISHMA D/O ANSAR PASHA, AGED ABOUT 21 YEARS, R/A BASAPPANADODDI VILLAGE, KOLLEGALA TALUK, CHAMARAJNAGAR DIST-571 440

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Digitally signed by D HEMA Location: HIGH COURT OF KARNATAKA

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…APPELLANT

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(BY SMT. ARCHANA K M., AMICUS CURIAE )

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AND:

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AZGAR

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S/O AKBAR, AGED ABOUT 26 YEARS R/A BASAPPANADODDI VILLAGE, KOLLEGALA TALUK, CHAMARAJNAGAR DIST-571 440

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THE STATE OF KARNATAKA

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THROUGH RAMAPURA P.S. CHAMARAJANAGAR DIST-571 313 (REPRESENTED BY SPP HIGH COURT OF KARNATAKA AT BENGALURU-01)

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…RESPONDENTS (BY SRI. VINAYAKA V S., AMICUS CURIAE FOR R1; SMT. K.P. YASHODHA, HCGP FOR R2)

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THIS CRIMINAL APPEAL IS FILED U/S.372 OF CR.P.C PRAYING THAT TO SET ASIDE THE ORDER OF ACQUITTAL DATED 18.11.2016 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, CHAMARAJANAGARA IN SPL.C.NO.12/2015 AND CONVICT THE RESPONDENT NO.1 FOR THE OFEFNCE P/U/S 307 OF IPC.

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IN CRL.A.NO.491/2017

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BETWEEN:

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STATE OF KARNATAKA BY RAMAPURA POLICE STATION CHAMARAJANAGAR REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BENGALURU -560001.

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…APPELLANT

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(BY SMT. K.P. YASHODHA, HCGP)

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NC: 2023:KHC:42106-DB CRL.A No. 1786 of 2017 C/W CRL.A No. 491 of 2017

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AND:

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AZGAR S/O AKBAR, AGED ABOUT 26 YEARS, BASAPPANADODDI VILLAGE, KOLLEGALA TALUK -571 440

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…RESPONDENT

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(BY SRI. VINAYAKA V S., AMICUS CURIAE )

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THIS CRIMINAL APPEAL IS FILED U/S.378(1) & (3) OF CR.P.C PRAYING TO (A) GRANT LEAVE TO FILE AN APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, CHAMARAJANAGARA IN SPL.C.NO.12/2015 THEREBY ACQUITTING ACCUSED/RESPONDENT OF THE OFFENCES P/U/S 354, 307 AND 326 OF IPC SECTION 11(IV) READ WITH SECTION 12 OF POCSO ACT (B) SET ASIDE THE AFORESAID JUDGMENT AND ORDER OF ACQUITTAL AND (C) CONVICT AND SENTENCE THE ACCUSED FOR THE OFFNECE P/U/S 354, 307 AND 326 OF IPC AND SECTION 11(IV) READ WITH SECTION 12 OF POCSO ACT.

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THESE APPEALS COMING ON FOR HEARING THROUGH PHYSICAL HEARING/VIDEO CONFERENCE THIS DAY, DR. H.B.PRABHAKARA SASTRY, J., DELIVERED THE FOLLOWING:

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COMMON JUDGMENT

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The appellant-complainant has filed Criminal Appeal No.1786/2017 under Section 372 of Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as the Cr.P.C.') and the State has filed Criminal Appeal No.491/2017 under Section 378 (1) and (3) of Cr.P.C., both challenging the judgment of conviction dated 18.11.2016 and order of sentence dated 19.11.2016 passed by the learned Prl.District & Sessions Judge, Chamarajanagara (hereinafter for brevity referred to as the Sessions Judge's Court') in S.C.No.12/2015 acquitting the accused of the offences punishable under Sections 354, 326 and 307 of Indian Penal Code, 1860 (hereinafter for brevity referred to as `IPC’), and Section 11(iv) read with Section 12 of Protection of Children from Sexual Offences Act, 2012 (hereinafter for brevity referred to as 'POCSO Act').

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The summary of the case of the prosecution is that alleged victim/complainant - PW-1(CW-1) (henceforth referred to as the 'victim') is a native and resident of Basappanadoddi Village, Kollegala Taluk within the limits of complainant Police

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Station. However, for about few years she was at Bengaluru. During that time the accused had sent her a message over cellphone stating that he is loving her. After return to her village - Basappanadoddi, the accused stated that it was him, who sent the message and thereafter both the accused and the victim started talking to each other. Thereafter, the accused asked the victim to convince her parents to withdraw a case said to have been filed by them against one Sri. Zameer Beig and Sri. Zameel Beig, who were said to be the employers of the accused, however, the victim was hesitant to ask her parents to compromise the matter. In that regard, accused threatened the victim that, if, she does not accede to his request, he would not only avoid marrying her, but, also kill her, however, the victim had ignored the said warning of the accused.

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That being the case, on the date 27.12.2013 at about 10.00 a.m. to 10.30 a.m., while the victim was coming out from the lavatory of her house, the accused holding an Axe in his hand had inflicted three blows upon the backside of her neck and another blow on her chest, inflicting injuries upon her. Screaming due to the pain, the victim fell down. Her mother, PW-2 who had

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rushed to the spot, after seeing the incident shifted her daughter/victim with the help of others to the hospital and got her medically treated. In the hospital, the victim gave a complaint against the accused as per Ex.P.1, which came to be registered in the complainant-Police Station in Crime No.180/2013 against the accused for the offences punishable under Sections 354 and 307 of IPC. After completing the investigation, the police filed charge sheet against the accused for the offences punishable under Sections 354 and 307 of IPC.

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After committal of the matter in C.C.No.184/2014, from the Court of Additional Civil Judge and JMFC at Kollegala, the matter was made over to the Fast Track Court, Kollegala and was registered under S.C.No.50/2014. During the pendency of the said case before the Court, by the prosecution, through a memo, it was brought to the notice of the Fast Track Court that the alleged incident attracts even offence punishable under Section 11(iv) read with Section 12 of the POCSO Act and request was made to make over the case to the Special Court. After hearing, the learned Presiding Officer of the Fast Track Court, Kollegala, by order dated 16.01.2015, ordered for transfer of the case to

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the jurisdictional Special Court, Chamarajanagara. Accordingly, the matter came up before the Court of the Principal District and Sessions Judge, Chamarajanagara, which is also Special Court under POCSO Act (hereinafter for brevity referred to as Special Judge's Court) and the case was renumbered as Special Case No.12/2015.

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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 for the offence punishable under Sections 324, 354, 326 and 307 of `IPC’ and Section 11(iv) read with Section 12 of POCSO Act. Since the accused pleaded not guilty, the trial was held, wherein, in order to prove the alleged guilt against the accused, the prosecution got examined in all nineteen (19) witnesses as PW-1 to PW-19 and got produced and marked 21 documents from Exs.P.1 to P.21 and got produced Material Objects from MO-1 to MO-7. From

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the accused side, neither any witness was examined nor any documents were got marked as exhibits. 3. After hearing both side, the Special Judge’s Court, by its judgment dated 18.11.2016, though acquitted the accused for the offences punishable under

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Sections 354, 326 and 307 of IPC, and Section 11(iv) read with Section 12 of POCSO Act, however, it convicted the accused for the offence punishable under Section 324 of IPC and sentenced him accordingly. Aggrieved by the same, the victim has preferred an appeal in Crl.A.No.1786/2017 and State has preferred an appeal in Crl.A.No.491/2017.

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The State is represented by the learned High Court Government Pleader. In Crl.A.No.1786/2017, the accused was respondent No.1, though served but remained unrepresented, however, in Crl.A.No.491/2017, where the accused was the sole respondent, he appeared through his counsel and was being represented by his counsel. However, the said learned counsel for the accused in Crl.A.No.491/2017 since has remained absent for few dates of hearing, this Court by its order dated 10.11.2023 appointed learned counsel Sri. V.S. Vinayaka as Amicus Curiae for the

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accused/respondent in both the appeals.

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Simultaneously, noticing the continuous absence of the learned counsel for the appellant in Crl.A.No.1786/2017 also,

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on the very same day, this Court appointed learned counsel Smt. K.M. Archana, as Amicus Curiae for the victim/appellant in Crl.A.No.1786/2017. Consequently, the learned counsel who were earlier appearing for the appellant in Crl.A.No.1786/2017 and learned counsel for the accused in Crl.A.No.491/2017 stood relieved in these matters.

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The Sessions Judge’s Court records were called for

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and the same are placed before this Court.

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Heard the arguments from both side in both the appeals. 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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Learned HCGP for the appellant/State in Crl.A.No.491/2017 in her argument submitted that the

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evidence led by the prosecution, more particularly, the evidence of PW-1 and PW-2 shows that at the time of commission of the offence the accused not only had the knowledge, but also the intention to take away the life of the victim, since, he had threatened in express terms to PW-1 that he is going to kill her, in case, if she does not accede to his request of pursuing her parents from withdrawing a case filed by them against his employers. It is with the said intention, since he has inflicted multiple blows with the Axe - M.O.1, the offence punishable under Section 307 of IPC has been established.

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She further contended that relying upon the judgment of Hon'ble Apex Court in the case of SADAKAT KOTWAR AND ANOTHER VS. STATE OF JHARKHAND reported in 2021 SCC OnLine SC 1046 , learned HCGP submitted that where the weapon used is deadly weapon and the injury inflicted on vital parts of the body, the offence squarely attracts Section 307 of IPC.

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Learned HCGP further contended that since, the offence has been committed in front of the lavatory facing a public road, during broad daylight, against a minor girl, the accused has committed the offence of outraging the modesty of the victim. Further, the evidence of prosecution that the victim was minor on the date of offence, has not been denied by the accused in any way. Further, the evidence led by the prosecution, more particularly of PW-1 and PW-2 go to show that prior to the date of incident, on several occasions, the accused was sending SMS messages to the victim stating that he was loving her, was teasing her and following her while she was pursuing her studies at Bengaluru. As such, the offence under Section 11(iv) read with Section 12 of POCSO Act also stands established. However, the trial Court without appreciating the evidence placed before it, in its proper perspective and without giving any reasons, has only noticed the injuries inflicted upon the victim by the accused and by itself concluding that the injuries are simple in nature, had acquitted the accused of the offences punishable under

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Sections 307, 326 and 354 of IPC and under Section 11(iv) read with Section 12 of POCSO Act, which is erroneous. As such, impugned judgment warrants interference at the hands of this Court and appeal deserves to be allowed.

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Learned Amicus Curiae for the appellant in Crl.A.No.1786/2017 in her argument, apart from adopting the points canvassed by the learned HCGP, has submitted that the evidence of PW-1 and PW-2, as a victim to the incident and as an eye-witness to the incident, have come in an uniform manner and has withstood the detailed cross-examination from the accused side. Both of them have stated that it was accused and accused alone who inflicted grievous injuries upon the victim. The trial Court mistook the grievous injuries, though stated by the PW-1 - Doctor, as simple in nature and ignored the fact that the proven guilt not only attracts the Section 326 of IPC but also Section 307 of IPC.

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Learned Amicus Curiae further contended that in order to attract Section 307 of IPC, it is not always necessary that there must be grievous injuries on the part of the victim,

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suffice if, intention or knowledge of the assailant is proved. In her support, she relied upon the judgment of Hon'ble Supreme Court in the case of STATE OF MADHYA PRADESH VS. HARJEET SINGH AND OTHERS reported in MANU/SC/0238/2019 and also the judgment of Hon'ble Apex Court in S.K. KHAJA VS. STATE OF MAHARASHTRA reported in 2023 SCC OnLine SC 1093 (Crl.A.No.1183/2011 dated 23.08.2023) . Learned Amicus Curiae further contended that all the essentials of Section 307 of IPC has clearly been made out by the prosecution through cogent evidences of PW1 and PW-2 corroborated by the medical evidence, however, the Special Court without appreciating the evidence in their proper perspective, in few sentences, observed that the proven guilt attracts only Section 324 of the IPC and not the other offences.

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Learned Amicus Curiae for the victim further contended that the age of the victim as on the date of the incident was only 17 years and the same has not been denied or disputed from the accused side. The evidence of PW-1 shows that the

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accused was teasing her and sending her obscene messages knowing fully well that she was minor in her age, as such, Section 11(iv) read with Section 12 of POCSO Act has stood proven.

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The Forensic Science Laboratory (for short 'FSL') report along with the Serology report have clearly established the presence of blood stains on the dress material worn by the victim at the time of incident and also on the weapon i.e., Axe - M.O.1. It is established that the group of blood found on the weapon and the dress material worn by the victim were matching with the blood group of the victim, which is B^+ve , as such, both through oral evidence, through documentary evidence and scientifically also, the prosecution has proved that the accused has attempted to kill PW-1, by inflicting multiple injuries upon her through the weapon - M.O.1. Said weapon was also identified by none else than the victim herself and the photograph of the scene of offence shows the said weapon on it. However, the trial Court without considering all these important and clinching evidences has straight away

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jumped to the conclusion that though the act of the accused in assaulting victim has been established, but, the same cannot be considered as an act of attempt to cause death of victim, resulting in acquitting the accused from the major offence of Section 307 of IPC and Section 11(iv) read with Section 12 of POCSO Act. As such, interference of this Court is warranted by allowing the appeal filed by the complainant.

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Per contra , learned Amicus Curiae for the accused in both the appeals, in his argument, at the outset, fairly conceded that according to his information the accused has not preferred any appeal against the impugned judgment. He submitted that the nature of the injuries said to have been sustained by the victim in the alleged incident is simple in nature, as stated by the PW-11 - Doctor, where the victim was said to have been taken treatment as an inpatient. Further, the very same Doctor has also stated that the injuries with the M.O.1 are inflicted with force, then, there was all the possibility of fracture of Cervical Bone, which, in the instant case, has not occurred. As such also, it can not be held that

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the accused had any intention to kill PW-1. Thus, the Special Court has rightly acquitted the accused of the offence punishable under Section 307 of IPC. He further contended that the prosecution has utterly failed to prove that the alleged act of the accused, in any way, can be called as outraging the modesty of a woman, since, the act of assault and act of outraging the modesty are two different offences. With this, he submitted that since the trial Court, has after proper analysis of the evidence, had rightly acquitted the accused of the offences punishable under Sections 307, 326 and 354 of IPC and under Section 11(iv) read with Section 12 of POCSO Act and 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,

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the points that arise for our consideration in these appeals are:

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1) Whether the prosecution has proved beyond reasonable doubt that on the date 27.12.2013 at about 10.30 a.m. while CW1 -victim being a minor girl had been to

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nature call to the lavatory in her house in Basappanadoddi village, Kollegala Taluk, within the limits of complainant Police Station, the accused while the victim was coming out from the lavatory assaulted her and voluntarily caused grievous hurt by dangerous weapon i.e., an Axe and inflicted blows on her neck and chest and thereby committed an offence punishable under Section 326 of IPC?

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2) Whether the prosecution has proved beyond reasonable doubt that on the time, date and place mentioned above, the accused assaulted CW-1, the victim, intending to outrage and knowing that his act would be likely that he will thereby outrage her modesty has committed an offence punishable under Section 354 of IPC?

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3) Whether the prosecution has proved beyond reasonable doubt that on the date, time and place mentioned above, the accused assaulted CW-1, the victim, with an Axe on her neck and chest with an intention to cause the death of CW-1, the victim and knowing that under the

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circumstances, his act may cause her death, in which case, he would be guilty of murder, has assaulted CW-1 and thereby has committed an offence punishable under Section 307 of IPC?

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4) Whether the prosecution has proved beyond reasonable doubt that on the date, time and place mentioned above, by his act of following CW-1, the victim and teasing her and also sending her lustful messages has committed an offence punishable under Section 11(iv) read with Section 12 of POCSO Act?

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1. Whether, the impugned judgment of acquittal warrants any interference at the hands of this Court?

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Before proceeding further in analysing the evidence

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led in the matter, it is to be borne in mind that it is an appeal against the judgment of acquittal of accused for the offence punishable under Sections 307, 326 and 354 of IPC and under Section 11(iv) read with Section 12 of POCSO Act. Therefore, the accused has primarily the double benefit. Firstly, the presumption under law is that, unless his guilt is proved, the

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accused has to be treated as innocent in the alleged crime. Secondly, the accused is already enjoying the benefit of judgment of acquittal passed under the impugned judgment. As such, bearing the same in mind, the evidence placed by the prosecution in the matter is required to be analysed.

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(a) Our Hon’ble Apex Court, in its judgment in the case of Chandrappa and others -vs- State of Karnataka, reported in (2007) 4 Supreme Court Cases 415 , while laying down the general principles regarding powers of the Appellate Court while dealing in an appeal against an order of acquittal, was pleased to observe at paragraph 42(4) and paragraph 42(5) as below:

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“ 42(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

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42(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.”

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(b) In the case of Sudershan Kumar -vs- State of Himachal Pradesh reported in (2014) 15 Supreme Court Cases 666, while referring to Chandrappa’s case (supra),

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the Hon’ble Apex Court at Paragraph 31 of its Judgment was pleased to hold that, it is the cardinal principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of acquittal. The Appellate Court, in such a case, would interfere only for very substantial and compelling reasons.

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of Kerala, reported in (2022) 8 Supreme Court Cases 440, at Paragraph 25 of its judgment, the Hon’ble Apex Court was pleased to observe as below:

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“ 25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, the appellate Court has to consider whether the trial court’s view can be termed

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as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate Court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters.”

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The above principle laid down by it in its previous case was reaffirmed by the Hon’ble Apex Court, in the case of Ravi

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Sharma -vs- State (Government of NCT of Delhi) and another reported in (2022) 8 Supreme Court Cases 536 and also in the case of Roopwanti Vs. State of Haryana and others reported in AIR 2023 SUPREME COURT 1199 .

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It is keeping in mind the above principles laid down by the Hon’ble Apex Court, we proceed to analyse the evidence placed in this matter.

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In support of its case, the prosecution has examined nineteen (19) witnesses from PW-1 to PW-19 and got marked twenty one (21) documents from Exs.P.1 to P.21

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apart from MOs-1 to 7. After closure of prosecution side, statement of the accused contemplated under Section 313 of Cr.P.C. was recorded. The accused totally denied the case of the prosecution and did not lead any defence evidence.

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Among the nineteen witnesses examined by the prosecution, PW-1 (CW-1) victim was shown as complainant and an injured witness. PW-2 (CW-2) Umera Bhanu, mother of the victim, PW-3 - Zakeer, PW-4 - Mohammed Rafique, PW-5 - Fayaz, PW-8 - Zameer Beg, PW-9 - Zameel Beg were shown by it as eye witnesses to the alleged incident. PW-6 - Ansar @ Ansar Pasha is father of the victim and he came to the spot after the incident. PW-7 Riyaz Pasha and PW-10 - Firoz Khan are pancha witnesses to spot mahazar marked at Ex.P.5. PW-11 - Dr.Samson is Medical Officer of Janani Hospital, Kollegal, who gave treatment to PW-1. So also PW-18 - Dr.Khaleed issued wound certificate and PW-19-Smt.Blaise is Administrative officer of Holy Cross Hospital, Kamagere who produced MLC register extract. PW-12 - Smt.Nirmala is Headmistress who gave date of birth certificate based on school records and marked at Ex.P.14 and admission register extract

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marked at Ex.P.15. PW-13 Nazeem Pasha, PW-14 -Zafar Khan are pancha witnesses to seizure mahazar marked at Ex.P.8 under which, clothes of PW-1 were seized. PW-15 - Shekharaju is ASI who received the complaint and registered the case and sent the same to the Court, PW-16- Smt. Chayakumari is Scientific Officer who examined the clothes of PW-1. PW-17 - Basavaraju is PSI, who investigated the case and submitted charge sheet against the accused.

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According to the prosecution, both the accused and the victim were the residents of Basappanadoddi Village and they knew each other since prior to the incident. The said aspect is not disputed from the accused side. On the other hand, the said aspect is stated by PW-1 and PW-2 in their evidence, which has not been denied by the accused. Moreover, the accused himself by taking a contention in the form of his defence by making suggestions to PW-1, PW-2 and PW-6 to that effect has shown that the victim was a person known to him and that he was loving the victim, however, the parents of the victim were not giving her in marriage to him.

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Though PW-1, PW-2 and PW-6 have denied the said suggestion that due to avoiding of the marriage of the victim with the accused, a false case has been filed by them through PW-1, however, the evidence, the accused and victim were known to each other has remained un-denied. Furthermore, PW-1 has stated that after the initial incident of the accused sending her a message to her cell phone as ‘I love you’, thereafter, they started talking with each other and the same resulted in one loving the other has not specifically denied from the accused side. PW-2, the mother of the victim also had spoken about the said love between the accused and the victim. However, the same was what she claims to have heard from her daughter, i.e., the victim.

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About the incident said to have taken place on 27.12.2013, among the nineteen (19) witnesses examined by the prosecution, it is PW-1, PW-2, PW-3, PW-4, PW-5, PW-6, PW-11, PW-18 and PW-19 are shown to have stated about the same. Among the above witnesses, even though PW-3/CW-3/Zakeer, PW-4/CW-4/Mohammed Rafique, PW-5/CW-5/Fayaz were shown by the prosecution as

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the persons rushing to the spot of the incident immediately after hearing the screaming of PW-1 and seeing the accused in the place and also the weapon. However, all these three witnesses have pleaded their total ignorance about the incident. As such, the prosecution could not get any support from these three witnesses even after treating them as hostile and subjecting them to cross-examination, the prosecution could not get any support from them.

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According to the prosecution, the victim was a minor as on the date of the alleged offence. PW-1 in her examination-in-chief itself has stated that her date of birth is 10.08.1996. The same has not been denied in her cross-examination.

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PW-1/CW-1/Karishma, the victim in her evidence after stating that while she was studying in High School at Bengaluru, she received a message as ‘I love you’ and subsequently, after her return to her village, she came to know that it was the accused who had sent the message, ‘I love you’. Admitting the same, the accused started loving her and both of them decided to marry.

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About the incident

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proceeded to state that, on the date, 27.12.2013 in the morning at about 10.00 a.m. to 10.30 a.m., while she was coming out of the lavatory of the house, the accused assaulted her on her neck three times with an axe and assaulted on her chest one time, due to which assault, she fell down. Her mother (PW-2) and CW-3 to CW-5 rushed to the spot. Having seen those persons rushed to the spot, the accused by throwing the axe, which he was holding, ran away from the place. Thereafter, she was shifted in an Auto-rickshaw to Holy Cross Hospital, Kamagere and after getting the first-aid treatment there, at the advice of the doctor, she was shifted in an Ambulance to Janani Hospital, Kollegal. The witness in specific term has stated that with an intention to kill her, the accused had assaulted her in such a manner. She also stated that she was an inpatient in the said hospital at Kollegal for a day, at which time, the police visiting her has recorded her statement, which she has identified at Ex.P1. She also clarified that due to her immobility of the limbs, she could not put her signature to the said complaint, however, has put her thumb

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mark on it. Stating that she can also identify the weapon used by the accused in assaulting her, the witness has identified an axe, which was marked at MO-1. She also stated that due to the assault made by the accused, the dress worn by her at the time of incident got blood-stained. Those clothes were collected by the doctor. Stating so, the witness has identified a veil, pyjam, chudidhar top, an inner-wear like banian and bra, which were marked from MOs-2 and 6 in the Court. Further, stating that the incident took place near the door of the lavatory, the witness has identified a photograph at Ex.P2 as the one showing the place of the offence. Seeing an axe in the said photograph fallen on the ground, she has stated that it was the axe, which was marked at MO-1.

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PW-1 was subjected to a detailed cross-examination

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from the accused side wherein she adhered to her original version. In her cross-examination, she gave more details about the incident and the love affair between her and the accused. She stated that though the accused has agreed to marry her, however, her family members were not agreeable

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for the same. She clarified in her cross-examination that though there were adjacent houses as neighbours, however, at the incident, they did not come to the spot but her mother came. She specifically stated that with an intention to kill her, the accused has assaulted her.

¶139

PW-2/CW-2/Umera Bhanu, the mother of the victim in her examination-in-chief has also stated that as on the date of the incident her daughter was aged 16 to 17 years. The said statement of PW-2 has also not been denied from the accused side.

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More importantly, PW-12, Smt.A.Nirmala, the Head Mistress of Government Higher Primary School, Basappanadoddi Village in her evidence has stated that at the request of the Investigating Officer in this matter, she has verified the school records and based upon the details recorded in the school records, she has issued a date of birth certificate of the victim, who was an alumni of their school, certifying that date of birth of the victim as per the school records was 10.03.1996. In that regard, she has issued a

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certificate as per Ex.P14. She further stated that the admission register brought by her to the Court in its original also mentions the recording of the date of birth of the victim as 10.03.1996. Stating so, she has produced a copy of the admission register extract, which copy, the Special Court after comparing the same with the original register proceeded to mark it as Ex.P15. The witness has identified her signatures in both the documents. A perusal of Ex.P14, which in fact is a Transfer Certificate and Ex.P15, which is a copy of relevant portion of admission register maintained by the school go to show that the date of birth of the victim recorded therein is 10.08.1996 but not 10.03.1996. However, since the documents being the photo copies and the ink appearing to be not bright and legible, the date was confusing to be 10.03.1996. As such, though PW-12 in her oral evidence has stated that as per the school records, the date of birth of the victim was 10.03.1996, however, the very same school records produced by the same witness shows the date of birth of the victim as 10.08.1996.

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Added to the same, the evidence of PW-12 that date of birth of victim has been recorded in the school records and the same are reflected in Exs.P14 and P15 has not been denied in the cross-examination of the said witness. Incidentally, the cross-examination of the said witness also appears to be jumbled with some portion of the crossexamination of PW-11, probably due to keeping the evidence of PW-11 as a format in the computer system without deleting the copied portion of the evidence in the second page of the evidence of PW-11, as such, the continuation of the crossexamination of PW-12 in page No.2, by a bare reading go to show that it is not of PW-12 but of some other witness. The availability of the deposition of PW-11 go to show that the contents of page No.2 of PW-11 has been copied in page No.2 of deposition of PW-12 also. However, neither the witness (PW-12) nor the Presiding Officer have noticed it, but they have subscribed their signatures to the said deposition. Still the fact remains that the say of PW-12 that date of birth of the victim girl who was their ex-student is recorded in the school

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records extracts of which are at Ex.P14 and Ex.P15 has not been denied in her cross-examination.

¶147

As observed above, both Exs.P14 and P15 shows the date of birth of the victim as 10.08.1996. Further, PW-1 herself in her examination-in-chief had stated her date of birth as 10.08.1996, which has not been denied in her crossexamination. Thus, it stands proved that the date of birth of the victim is 10.08.1996. As such, as on the date of the alleged offence, which is on 27.12.2013, the victim was aged seventeen (17) years four (4) months and seventeen (17) days, as such she was a child under the POCSO Act also.

¶148

PW-2/CW-2/Umera Bhanu, the mother of PW-1, the victim has stated that as on the date of incident, which was on 27.12.2013, her daughter PW-1 had gone to lavatory at about 10 O'clock in the morning. While she was returning from the shop after purchasing the goods, she saw the accused holding an axe in his hands moving towards the direction of her house from his house. Being surprised as to why the accused is going towards her house that too carrying an axe with him, she was

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looking at that, by which time, her daughter came out from the lavatory, while she was bolting the door of the lavatory, the accused went to her and assaulted on her neck with the axe, which he was holding. While she was seeing the accused inflicted one more blow upon her, looking at that, she screamed. CW-3 to CW-5 also came running to the spot. Having seen PW-2 and CW-3 to CW-5 rushing to the spot, the accused threw the axe he was holding, in the spot and ran away from there. Thereafter, these people attended to the victim and getting an Auto-rickshaw shifted the injured from Basappanadoddi Village to the Holy Cross Hospital at Kamagere. PW-2 further stated that PW-4/CW-4/ Rafique telephoned to her husband (PW-6/CW-6/Ansar) about the incident. The doctor at Kamagere Hospital after giving first-aid treatment advised to take the injured to some other hospital. Accordingly, the injured/PW-1 was shifted to Janani Hospital at Kollegala, where she was an inpatient for a day. The doctor had suggested to take the injured to the other hospital,

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accordingly, the injured was taken to NIMHANS at Bengaluru and was admitted there.

¶153

Coming to the history of the alleged incident, PW-2 has stated that she enquired with PW-1, her daughter in that regard, for which, PW-1 stated that while she was in her grandmother’s house at Bengaluru, one day, a message came to her mobile phone as ‘I love you’. She ignored such message, which did not have the sender’s name. After her return to her village, Basappanadoddi, the accused telephoned to her and stated that it was him who had sent her the said message and also stated that he is loving her. The witness also stated that PW-1 consented to the said love, as stated to her. This incident has happened about six (6) months prior to the incident. It is thereafter, the accused was calling her daughter over the phone now and then.

¶154

PW-6/CW-6/Ansar, the father of the victim has stated in his evidence that as on the date of the incident, he was away from his house on his work. However, he was informed by Rafique (PW-4/CW-4) over the telephone that

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while his (this witness) daughter-PW-1 was coming out from the lavatory near her house, the accused assaulted her with an axe on her neck. PW-2 to PW-4 rushed to the spot and having seen them rushing to the spot, the accused threw the axe at the spot and ran away from the spot. It is thereafter, PW-2 to PW-4 administered water to PW-1 and shifted her to Holy Cross Hospital at Kamagere in an Auto-rickshaw. The witness stated that PW-4 who had telephoned him has also stated to him since the clothes worn by the injured are blood-stained due to the incident, the other set of clothes were required to be brought. Accordingly, he taking another set of clothes went to Holy Cross Hospital at Kamagere. From there, he went to Janani Hospital and gave clothes to PW-1 who changed her dress.

¶157

PW-6 has further stated that in his enquiry with PW-1 about the incident, she stated that the accused had sent a message earlier as ‘I love you’. That message was repeated by the accused again. Later on, she came to know that it was the accused who was sending her such messages. After her return

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to the village from Bengaluru, the accused confessing that it was him who had sent such message has also proposed to marry her. The witness has further stated that though the accused was ready to marry her, initially, PW-1 was not agreeable to the same. Later, she also agreed to marry him. As such, they were talking to each other over the phone.

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The witness has further stated that after collecting bloodstained clothes worn by his daughter/the victim at the time of the incident had produced the same before the investigating officer, who by drawing a seizure panchanama as per Ex.P8 has seized the same. Stating that he would identify the weapon used in the commission of the crime and the clothes worn by his daughter at the time of the incident, the witness has identified the axe at MO-1 and clothes at MO-2 to MO-5.

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In his cross-examination, from the accused side, he specifically stated that he was not an eye-witness to the incident. As such, the entire evidence of PW-6 about the alleged incident is purely an hear-say based upon what he

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claims to have heard from one Rafique (PW-4) and his daughter.

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The evidence of PW-1 and PW-2 about the incident is that the accused was a person known to them and was loving PW-1 and was willing to marry her. Both of them were talking to each other over the phone.

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The evidence of PW-1 that the accused assaulted her with an axe on 27.12.2013 while she was coming out from the lavatory near her house, though has been denied in the crossexamination of the witness by making denial suggestion, however, except making denial suggestion, nothing could be elicited in the cross-examination of PW-1 to suspect her evidence regarding the alleged incident. In the above circumstances, there is no reason to disbelieve or suspect the evidence of PW-1, which evidence inspires confidence in the Court to believe. The Hon’ble Apex Court in the case of

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LAKSHMAN SINGH VS. STATE OF BIHAR (NOW JHARKHAND)

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and connected matters reported in (2021) 9 Supreme Court

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Cases 191, in sub-paragraphs 9.1 and 9.2 of its judgment, referring to its previous judgment in the case of Abdul Syeed Vs. State of M.P., [(2010) 10 SCC 259] , was pleased to observe that, the evidence of the injured witnesses is entitled to a great weight and very cogent and convincing grounds are required to discard their evidence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein. It was further observed by their Lordships that, "being injured witnesses, their presence at the time and place of occurrence cannot be doubted".

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In the instant case, in addition to the evidence of PW-1, the evidence of PW-2 as an eye-witness has also corroborated with the case of the prosecution. She has made it clear that she was an eye-witness to the alleged incident. She too has described about she having seen the accused proceeding towards her house carrying an axe with him and being surprised she watching as to what accused was doing,

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however, within no time, the accused assaulting her daughter with the very same axe inflicting injuries upon her. Even in her cross-examination also except making a suggestion of denial, nothing could be elicited from the accused side to shaken the evidence given by her in her examination-in-chief. Thus, the evidence of PW-1 and PW-2 comes with a cogent manner corroborating each other and giving a uniform and full account of the alleged incident of the accused assaulting the victim with an axe, which he was holding at the time of the incident. Both the witnesses have identified the said axe at MO-1.

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The evidence of PW-1 as victim and PW-2 as an eye-witness has been further corroborated by the medical evidence. The prosecution has examined PW-18 (CW-14) Dr.Khaleed, the then-Chief Medical Officer of Holy Cross Hospital, Kamagere. The said witness has stated that one Dr.Pavan previously working in the said hospital has examined the victim on 27.12.2013 who was brought to their hospital at about 11.00 a.m. with an history of assault by a neighbour boy. The necessary entries in MLC register also has been made

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to that effect. The injured had sustained contusion over right side of the neck and deep multiple laceration wound over the back of the neck. She had also sustained multiple abrasions. The witness has stated that those injuries were grievous in nature and were possible to be caused when assaulted with the axe at MO-1. The witness has given clarification stating that since cervical bone and veins were there in the neck region and the lacerated wounds were deep, he has mentioned that those injuries were grievous in nature. Stating that the wound certificate has been issued from the records maintained by the hospital, the witness has identified the said wound certificate at Ex.P19.

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Though in his cross-examination from the accused side, he stated that he has not personally treated the injured but in his evidence in examination-in-chief, he has stated that it was Dr.Pavan who had treated the injured. However, due to his non-availability, it is him who has given the evidence based on the records maintained by the hospital.

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The prosecution also got examined one Smt.Blaise said to be the Administrative Officer of Holy Cross Hospital at Kamagere as PW-19. The said witness in his evidence has stated that one Dr.Pavan was working in the hospital from 23.12.2013 to 29.12.2013. However, she does not know where the said doctor is working now. As per the records maintained by the hospital on 27.12.2013, the said Dr.Pavan had examined the victim in the case and a mention to that effect is there in the MLC register of the hospital. A police intimation was also given in respect of the said medico-legal case. Stating so, the witness produced a copy of the intimation given to the police and got it marked as Ex.P20, an extract of the MLC register was marked as Ex.P21 and his signatures in those documents. She also stated that Ex.P19 was issued by PW-18, Dr.Khaleed based upon the MLC register. She also gave information that since the said Dr.Pavan was not available in the hospital, it was Dr.Khaleed who issued Ex.P19. The evidence of this witness was not cross-examined from the accused side. As such, the evidence given by this witness has

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remained undenied and undisputed and establish that the victim after the incident was taken first to Holy Cross Hospital at Kamagere where treating it as a medico-legal case was given first-aid treatment where the doctor has found out the injuries as reflected in the wound certificate as at Ex.P19.

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PW-11/CW-13/Dr.Samson, the Medical officer at Janani Hospital, Kollegala in his evidence has stated that in the afternoon of 27.12.2013, one Smt.Umera Bhanu, the mother of the victim had brought PW-1, the victim with the history of assault with an axe on the victim on that date at about 11.00 a.m. They came to know that the injured was first taken to Holy Cross Hospital, Kamagere, from there, the patient was referred to their hospital. The witness stated that he examined the injured and noticed that she had sustained lacerated wounds at four places on the back side of her neck. She had also sustained one more lacerated wound on the chest portion. The victim was admitted as an inpatient in their hospital on 27.12.2013 and was discharged on the next day afternoon. The witness identified the wound certificate at Ex.P11 stating that

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it was issued by him and identified an extract of a case-sheet and got it marked as Ex.P12. The witness has stated that the said case-sheet pertains to the victim who was treated in their hospital. He also stated that the blood group of the victim was also tested in their hospital, in which regard, he has issued a certificate as per Ex.P13. He further stated that if a person is assaulted with MO-1, the injuries mentioned in Ex.P11 are possible to be caused. If the assault is with force by MO-1, the assaultee may also die. In his cross-examination from the accused side, the witness gave more details about the treatment given to the injured. Except eliciting further details, nothing could be elicited by this witness in his crossexamination to make his evidence in examination-in-chief a doubtful one. As such, the evidence of PW-11 and PW-18 further corroborates the evidence of PW-1 and PW-2 that in the assault committed by the accused upon the victim, she sustained multiple injuries as shown in the wound certificate at Ex.P19. Further, both PW-11 and PW-18 after seeing the axe at MO-1 have stated that if a person is assaulted with the said

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weapon, the injuries found on the victim and mentioned in Ex.P11 are possible to be caused. Therefore, the presence of the injuries on the victim and the nexus between the weapon and injury has been established from the evidence of these two doctors.

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The further corroboration placed by the

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prosecution to prove its case that the accused has committed the alleged act is the FSL report, which is at Ex.P7. Though PW-15/CW-16/M.Shekharaju, the then-ASI of the complainant police station has spoken about he receiving medical-legal case from Holy Cross Hospital, Kamagere and recording the statement of the victim at Janani Hospital, Kollegala and registering a crime in their station in Crime No.180 of 2013 and thereafter, submitting an FIR as per Ex.P16 to the Court, the next witness PW-17/ CW-22/ Basavaraju who is the investigating officer in the case has stated about he visiting the spot of the offence and drawing the panchanama as per Ex.P5 and at that time, seizing an axe found fallen in the spot, which is at MO-1 and collecting sample mud and

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blood-stained mud from the spot, which are identified as MO-6 and MO-7. He has also stated that he had requested the doctor to examine the blood grouping of the victim (PW-1). Accordingly, the blood grouping of the victim was done and it was ascertained that it was B^+ve blood. The very same witness has also stated that during the investigation, he has also seized the clothes worn by the victim at the time of the incident under seizure mahazar, which was marked as Ex.P8. He sent the seized articles including the axe and the clothes of the victim to their examination to the Regional Forensic Science Laboratory (for short, RFSL) at Mysuru and subsequently has received a report from the said laboratory as per Ex.P17.

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PW-16/CW-15/Dr.Chaya Kumari, Scientific Officer, RFSL at Mysuru has stated that her laboratory received the articles sent by the investigating officer in this matter, which was seven (7) in number and submitted them for their chemical examination. After recording the finding of the examination, she has prepared a report as per Ex.P17 and

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given it to the investigating officer. The witness has identified

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the articles at MO-1 to MO-7 and the articles that were received in her laboratory and examined by her. The said report at Ex.P17, which has not been denied or disputed specifically from the accused side shows that the articles that were sent for the chemical analysis were MO-1 to MO-7. Among those articles except in the sample mud mixed with concrete pieces, all other articles were found stained, which after examination revealed to be blood-stained and it was human blood with ‘B’ group. As observed above, the blood group testing of the victim, the report of which is at Ex.P13 also shows that it was of the group B^+ve . Thus, the dress worn by the victim at the time of the incident and also the axe said to have been used by the accused in commission of the crime were all found stained with the victim’s blood. This further corroborates the evidence of the victim, eye-witness as well as the doctor about the incident and the weapon used. As such, it has to be held that the prosecution has proved that it was the accused and accused alone who inflicted injuries upon the

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victim by assaulting her on the date, time and place mentioned above, with the axe at MO-1.

¶196

The next point that would be considered is, whether the acts of the accused in assaulting PW-1 and inflicting four injuries can be construed as an act of attempting to commit murder of the victim?

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The learned HCGP for the State and the learned Amicus Curiae for the victim in their arguments vehemently submitted that to attract Section 307 of IPC, it is not necessary that the injured should have sustained grievous injuries. The absence of the injuries also can attract Section 307 of IPC. Still in the instant case, the victim has sustained four lacerated wounds on the vital parts of her body.

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In Sadakat case (supra) relied upon by the learned HCGP, the Hon’ble Apex Court was pleased to observe that use of the deadly weapons and causing of the injury on the chest and stomach, which are the vital parts of the body has shown that the accused has committed an act of attempt to murder attracting Section 307 of IPC.

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However, the said observation was made by their Lordships considering the facts and circumstances of the case before it and confining to the same.

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In the case of Harjeet Singh (supra) relied upon by the learned Amicus Curiae for the victim, the Hon’ble Apex Court was pleased to hold that if the assailant acts with an intention or knowledge that such action might cause death, and hurt is caused, then the provisions of Section 307 Indian Penal Code would be applicable. It was further observed that there is no requirement for the injury to be on a "vital part" of the body, merely causing 'hurt' is sufficient to attract Section 307 of Indian Penal Code.

¶202

In the case of S K Khaja (supra) which was also relied upon by the learned Amicus Curiae for the victim, the Hon’ble Apex Court was pleased to hold that merely because the injuries sustained by the complainant were very simple in nature, that would not absolve the accused from being convicted for the offence under Section 307 of IPC. What is

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important is an intention coupled with the overt-act committed by the accused.

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A bare reading of Section 307 of IPC itself makes it clear that to attract Section 307 IPC, it is not always necessary that the assaulted or victim should sustain some injury. What makes an act of the accused an attempt to murder is, his intention or knowledge under the circumstance leading to an act, which act, if results in causing the death, would be guilty of murder. However, to assess the quantum of the sentence for the brutal act of an attempt to murder, any hurt caused to the victim would augment to enhance the quantum of the sentence. Thus, the presence of the injuries upon the victim in the act of attempt to murder would lead in pronouncing a higher sentence in the case where the injuries are not sustained by him. As such, presence or the nature of injury cannot be the sole criteria to decide, whether the alleged act attracts Section 307 of IPC.

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In the instant case, no doubt, as analysed above, the prosecution has established that the accused assaulted

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PW-1 and inflicted four injuries upon her. However, merely by the presence of those four injuries, it cannot be deduced that the accused attempted to cause the death of the victim in order to call the acts of the accused as an attempt to kill the victim. The other essential ingredient of Section 307 of IPC, which is the knowledge and/or intention on the part of the accused plays a vital role.

¶209

In the instant case, though the learned HCGP for the State and the learned Amicus Curiae for the victim vehemently contended that the prosecution has proved the intention of the accused in alleged commission of crime, however, the learned Amicus Curiae for the accused in his arguments contended that except some allegations regarding the motive, the prosecution has utterly failed to prove the motive.

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PW-1, the victim in her evidence has stated that after she started loving the accused with same reciprocity, the accused who was working under one Zameer Beig and Zameel Beig (CW-7/PW-7 and CW-8/PW-8) asked the victim to pursue

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her parents to compromise the matter with Zameer Beig and Zameel Beig. However, she was scared to request her parents to compromise the matter. Then, the accused stated to her that in case, if she does not pursue her parents to compromise the matter, he would kill her and would not love her any further and also would not marry her. However, she ignored the same stating that the accused is merely uttering it without an intention to do it. Thus, PW-1 attributes that her non-acting as requested by the accused in the alleged matter of compromise by her parents with one Zameer Beig and Zameel Beig has made the accused to attempt to kill her by inflicting injuries upon her. However, PW-1 could not give any details as to which particular case the accused wanted her parents to compromise.

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Similarly, PW-2, the mother of the victim also in her evidence has stated that they had filed a case in Ramapura Police Station against Zameer Beig, Zameel Beig, Thajmulla, Noorjan and Mishrad Jan. The Court summons also had issued to them in the matter. As such, on 26.12.2013, which was previous date to the date of the incident, they had

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been to the Court at Kollegala. The witness has further stated that as she came to know that the accused had telephoned PW-1 and asked her (this witness) to compromise the matter since PW-1 kept quiet without doing anything, the accused once again telephoned her and threatened her that he would kill her and also, he would not love her and would not marry her. Inspite of the same, PW-1 just ignored it thinking that the accused is stating so with no intention to do it. The said motive attributed to the alleged offence by PW-2 in her examination-in-chief has not been denied in her crossexamination.

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The evidence of PW-2 about she filing a case against Zameer Beig and Zameel Beigand others, she attending to the Court on 26.12.2013, the previous date of the incident in question and also her evidence that the accused had telephoned the victim asking her to get the matter compromised by convincing her (PW-2) have all not been denied in the cross-examination in any manner. As such, the entire evidence of PW-2 attributing motive to the act of the

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accused in assaulting the victim with MO-1 has remained undenied and undisputed.

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PW-6, the father of the victim also in his evidence reiterated the summary of what PW-2 (his wife) has stated regarding the motive behind the commission of crime. This witness also has stated that the accused had exerted pressure upon his daughter (PW-1) to pursue her parents to compromise in the said case filed against Zameer Beig and Zameel Beig. PW6 has stated that accused was friend of Zameer Beig and Zameel Beig. Thus, PW-6 also attributed the motive behind the commission of the crime stating that since PW-1 did not accede to the request or demand of the accused and ensure the compromise of the case instituted by her parents, he committed the act of assaulting the victim with an axe. The said evidence of PW-6 attributing motive to the act of the accused in commission of the crime has not been denied in his cross-examination from the accused side.

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Thus, like the evidence of PW-2, even the evidence of PW-3 also regarding the motive in commission of the crime has remained undenied

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and undisputed from the accused side. This evidence of PW-1, PW-2 and PW-6 makes it clear that the accused was interested in making favour to one Zameer Beig and Zameel Beig and in ensuring the compromise of the matter for them, which was said to have been filed against them by the parents of the victim. Though the said Zameer Beig @ Zameer and Zameel Beig @ Zameel were examined as PW-8 and PW-9 by the prosecution, however, both of them have turned hostile and not supported the case of the prosecution but these two witnesses not supporting the case of the prosecution is not unexpected. It is for the reason that generally, a person against whom a criminal case is said to have been filed would not be supporting the case of that complainant in another case where complainant or his family is interested.

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Thus, irrespective of PW-8 and PW-9 not supporting the case of the prosecution since the motive attributed by the material prosecution witnesses, more importantly by PW-2 and PW-6, the motive behind the commission of the crime that the accused intended to ensure the compromise in the other criminal case

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instituted by the parents of PW-1 - the victim stands established.

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Even though the accused attempted to ensure the compromise in a criminal case filed by the parents of the victim is established, still, that itself may not be a foolproof evidence to hold that he intended to kill PW-1. The said gap is filled by the evidence of PW-1 and PW-2 who have specifically and categorically stated that being not happy due to the inaction on the part of PW-1, the victim in pursuing her parents to compromise the matter, the accused threatened to kill PW-1 that he would not only stop loving her but also would proceed to kill her. The said statements, said to have been made by the accused to PW-1 has been re-iterated both by PW-1 and other PWs. Further, as observed above, the alleged criminal case filed by the parents of the victim was slated for hearing in a Court at Kollegala on 26.12.2013, which was just the previous day of the incident in question. As observed above, the evidence of PW-2 given to that effect has not been denied from the accused side. Therefore, it can be inferred that since

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on the previous day, the other criminal case where the accused was interested in ensuring a clean chit either to his employer or his friends, i.e., Zameer Beig and Zameel Beig could not materialize, he has committed the act of assaulting PW-1 on the very next day, i.e., on 27.12.2013. In addition to the above, the parts of the organ to which the injury inflicted by the accused upon PW-1 also plays an important role in arriving at a conclusion whether the act of the accused results in attracting Section 307 of IPC.

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As observed above, the evidence of PW-18 coupled with the wound certificate at Ex.P19 would show that PW-1, the injured victim was found sustained with the contusion on the right side of her neck and deep multiple laceration wound over the back of the neck and multiple abrasions.

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PW-18 has opined that all these injuries as grievous

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by giving a reason that in the neck region, cervical bone and the veins carrying the blood were also found and it is in that place the injury has been inflicted. According to PW-1, the victim and PW-2, the eye-witness, the accused was not

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satisfied with inflicting a single blow on PW-1 with MO-1/axe. On the contrary, he inflicted three blows on her neck and one blow on her chest. Had the accused not intended to take away the life of the victim, he would not have inflicted multiple blows, which in the instant case, are four blows on the victim. The very act of the accused that he came to PW-1 duly armed with a deadly weapon, i.e., axe with a handle and without talking to her, lodging multiple blows upon her that too on the vital organ, i.e., neck and chest would clearly go to show that accused was not only known of the consequences of his act but also had an intention to take away the life of PW-1, the victim. However, the Special Court without analysing the evidence placed before it in its proper perspective merely carried away by the evidence of PW-11 that the injuries were simple in nature and in its single sentence reasoning observed that since the injuries found on PW-1 were simple in nature, the prosecution has failed to prove the offence punishable under Section 307 of IPC. With the said observation holding that the prosecution could able to prove that the accused has assaulted

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PW-1 and inflicted injuries upon her with the axe at MO-1 identified the said act of the accused as an offence punishable under Section 324 of IPC. Since the said reasoning given by the Special Court in the impugned judgment appears to be erroneous, in the light of the analysis made above, the impugned judgment warrants interference at the hands of this Court.

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The accused has also been charged with the offence

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punishable under Section 326 of the IPC. In the light of the analysis made above, and more particularly, the evidence of PW-18, the doctor that the injuries found on the victim was grievous in nature and the evidence has further proved that it was the accused who inflicted those injuries with the axe at MO-1 though Section 326 of IPC can also be pressed into service, since in the light of the observation that the prosecution could able to prove beyond doubt that the accused has committed an offence punishable under Section 307 of IPC, no separate observation in respect to Section 326 of IPC

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needs to be made.

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The prosecution has also alleged that in the course of his act towards the victim on the date of the incident, the accused has also exerted criminal force against her and outraged the modesty of the victim. The learned HCGP for the State in her arguments vehemently submitted that outraging the modesty also includes hurting the feeling of the victim. In the instant case, since the accused has assaulted the victim in front of the lavatory of her house which was hardly ten (10) feet away from the main door, which was a public place, the prosecution has to be taken as proved the offence against the accused punishable under Section 354 of IPC.

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We are not satisfied with the said interpretation of Section 354 of IPC as depicted by the learned HCGP.

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Section 354 of IPC clearly mentions that there must be an assault or use of criminal force on any woman by the accused with an intention to outrage or knowing it to be likely that he will thereby outrage the modesty of the said woman.

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42. In the instant case, evidence of none of the witnesses much less PW-1, PW-2 and PW-6 have anywhere whispered that the accused had any knowledge or intention to outrage the modesty of PW-1, the victim. No doubt, it is established that the accused has assaulted PW-1 with a weapon, i.e., the axe at MO-1 and had used criminal force. However, the said use of criminal force or assault, no doubt has proved to be with an intention to take away her life and knowledge about the consequences of his act but the same would not be taken as an intention to outrage her modesty by the accused. Moreover, nothing has come in the evidence of PW-1 about her feeling at the act of the accused. If at all, PW1 has felt that her modesty was outraged by the accused, then, it was expected of her to speak about the same in her evidence. But nowhere she has whispered. Neither the prosecution nor the Court in the absence of any evidence either direct or indirect, cannot peep into the mind of the victim and try to find out what her feeling was at the time of the incident. Therefore, the argument of the learned HCGP on the

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said point is not acceptable. Consequently, though the accused was charged for the offence punishable under Section 354 of IPC, we find no evidence placed by the prosecution to prove the said alleged guilt against the accused.

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43. The accused has also been charged with the offence under Section 11(iv) read with Section 12 of the POCSO Act. Section 11 defines sexual harassment.

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Section 11 (iv) reads as below:

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"(iv) repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means"

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As per the above, the act of the sexual intent should

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have been repeated or consistent act of following the victim or watching her or contacting her either directly or through electronic digital or any other means. The learned HCGP for the State and the learned Amicus Curiae for the victim in their

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arguments vehemently submitted that the victim/PW-1 in her evidence has clearly stated that while she was at Bengaluru,

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the accused was repeatedly telephoning her and stating that he was loving her and also teasing her and troubling her. The said statement of the victim has been denied in her crossexamination. Even if the said statement is read and taken on its face value, still the same is not without any serious doubts. The first and foremost doubt that crux in believing the said statement is that though the witness has stated that the accused was calling her over the phone repeatedly teasing her and troubling her, however, the witness has not even narrated the details of any one of such incidents. Had such an act of the accused was repetitive, definitely, the victim was expected to revealed details atleast about some of them with respect to the date, time, place and manner, mode, etc., As such, her statement is very bald and vague in alleging that the accused was teasing her and repeatedly telephoning her and also disturbing her.

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Secondly, in the first part of her examination-in-chief, the

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witness has stated that while she was at Bengaluru, she received a message to her cell phone as ‘I love you’. However, she could not know who the sender was, as such,

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she ignored that. The very same witness in the latter part of her evidence has stated that while she was at Bengaluru, the accused was repeatedly telephoning her and was telling that he was loving her and also teasing her. If her second statement that the accused was regularly calling her over the phone and telling her that he was loving her and also teasing her is taken as true, then, it also has to be necessarily taken that PW-1, the victim was aware of the telephone number of the accused and aware as to who the caller was. As such, when she is said to have received a message to her cell phone as ‘I love you’, she cannot say that she was not aware who the sender of the message was. Thus, the very same statement of the complainant/victim made at two different places, does not go together and each creates a doubt in believing the other statement. As such, in the absence of any detail as to when and in what manner,

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the accused has contacted her either directly or through electronic or digital media including over the phone, it

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cannot be taken as established that the accused was sexually harassing her in a manner as alleged by PW-1.

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The evidence of PW-2 regarding the alleged sexual harassment by the accused is admittedly an hear-say based upon the alleged information said to have been given to her by none else than her daughter, i.e., PW-1. When the very evidence of PW-1 regarding the alleged sexual harassment is not believable, the information collected by PW-2 from PW-1 as an hear-say also cannot be taken as believable.

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Lastly and finally, it also cannot be ignored of the fact that the charge alleged against the accused for the offence punishable under Section 11(iv) read with Section 11 of the POCSO Act is, that the sexual harassment was committed on 27.12.2013 at about 10.30 a.m. The charge does not say that the alleged act of sexual harassment was committed at a different place, i.e., at Bengaluru and on the previous date, which is prior to the date, 27.12.2013. Thus, the very charge for the offence punishable under Section 11(iv) read with Section 12 of the POCSO Act since is

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confined to a particular date i.e., 27.12.2013 and admittedly, the prosecution has not considered the same and lead any evidence on the point of alleged sexual harassment on the date, 27.12.2013, on the said technical ground also, it has to be held that the prosecution has utterly failed to prove the guilt against the accused under Section 11(iv) read with Section 12 of the POCSO Act.

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Thus, even though the appellants in both the appeals were able to prove the guilt against the accused committed under Section 307 of IPC, however, they have failed to prove the alleged guilt against the accused for the offence punishable under Section 354 of IPC and under Section 11(iv) read with Section 12 of the POCSO Act. Since the Special Court, as observed above, did not analyse the evidence placed before it in its proper perspective, on the contrary, though it held the accused guilty of the offence punishable under Section 324 of IPC, but failed to notice that the evidence placed by the prosecution was sufficient to attract Section 307 of IPC, the said impugned judgment warrants interference at

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hands of this Court in the form of modification. Accordingly, we proceed to pass the following:

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O R D E R

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(i) Crl.A.No.1786 of 2017 is allowed; Crl.A.No.491 of 2017 is partly allowed;

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(ii) The impugned judgment of conviction and order of sentence dated 18.11.2016 passed by the learned Principal District and Sessions Judge, Chamarajanagar in Special Case No.12 of 2015 stands modified to the extent that the order of acquittal of the accused for the offence punishable under Section 307 of IPC stands set aside.

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(iii) The judgment of conviction holding the accused guilty for the offence punishable under Section 324 of IPC stands modified to the extent that the accused, namely, Azgar, Son of Akbar, Resident of Basappanadoddi Village, Kollegal Taluk is found guilty

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for the offence punishable under Section 307 of IPC.

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(iv) The rest of the finding of the Trial Court in acquitting the accused for the offence punishable under Section 354 of IPC and under Section 11(iv) read with Section 12 of the POCSO Act stands confirmed.

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(v) Since Section 326 of IPC, in the circumstance of the case stands merged into Section 307 IPC, no finding on the said offence is explicitly given.

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Sd/JUDGE

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Sd/JUDGE

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BVK,DH List No.: 1 Sl No.: 3

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DR.HBPSJ & UMBAJ:

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22.11.2023

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Hearing on Sentence

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Heard both sides in both the appeals regarding the

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sentence.

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The learned Amicus Curiae for the accused in his submissions, submitted that, from the records, it appears that the accused is a first time offender and that there are no criminal antecedents to him. As on the date of the alleged offence, the accused was appearing to be 24 years. As such, he is now aged about 34 years of age, having his own family and dependants. Under the said circumstance, considering his age and the number of years that has lapsed after the alleged incident, a lenient view to be taken.

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The learned Amicus Curiae for the victim in her statement submitted that the victim was a minor in her age as on the date of the incident. Due to the incident, she has suffered a great shock and she has lost

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precious years in her life. As such, the maximum punishment awardable for the proven guilt be ordered.

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The learned HCGP in her submission, submitted that the proved offence is a heinous offence that too against a minor girl. Under the said circumstance, the maximum punishment be ordered.

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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.

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In the instant case, though there are no materials showing any criminal antecedents against the accused but the proven guilt has been committed against a minor girl. Though from the date of the offence, nearly ten (10) years has elapsed but the contribution of the accused in the delayed disposal of the matter also cannot be ignored. As such, mere considering the time taken in disposing of the matter either through Court of first instance or in the appeal, as a general practice, the accused cannot seek the Court to be

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liberal in ordering the sentence. However, considering the mitigating factors in the matter including the alleged dependants upon the accused and the alleged family holding, we are of the view that though maximum sentence which can be ordered is imprisonment for life, however, since the very same Section also empowers us to order such punishment as herein before in the said Section mentions, we proceed to pass the following:

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ORDER ON SENTENCE

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The accused, namely, Azgar, son of Akbar, resident of Basappanadoddi Village, Kollegal Taluk is sentenced to undergo simple imprisonment for a period of ten (10) years and to pay a fine of 20,000/(Rupees Twenty Thousand only) and in default of payment of fine, to undergo an additional imprisonment for six (6) months for the offence punishable under Section 307 of IPC. Out of the fine amount paid by the accused, if any, a sum of 18,000/- (Rupees Eighteen Thousand only) be paid to PW-1, the victim as

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compensation under Section 357 of Cr.P.C.

¶300

The order on sentence passed by the Special Court stands modified on the lines mentioned above.

¶301

The rest of the observation of the Special Court in the impugned judgment regarding disposal of the property at MO-1 to MO-7 remains unaltered.

¶302

The accused Nos.1 is entitled for the benefit of set-off under Section 428 of the Code of Criminal Procedure, 1973.

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The accused (Azgar) herein shall surrender before the Special Court within forty five (45) days from today and serve the sentence as ordered above by this Court.

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