Partly allowed

The State of Karnataka v. Karunakara Shetty

Karnataka HC7 Sept 2023CRL.A/279/2017

Case brief

AI extract

What is this about?

The State appealed against a trial court's conviction of the accused under Section 324 IPC for causing hurt and acquittal under Sections 307 and 394 IPC. The High Court modified the conviction to Section 325 IPC (grievous hurt) and sentenced the accused to 2.5 years' imprisonment, while upholding the acquittal for attempt to murder and robbery.

What did the court decide?

The accused was sentenced to simple imprisonment for 2.5 years and a fine of Rs. 40,000 for the offence under Section 325 IPC. The acquittal under Sections 307 and 394 IPC was upheld.

The State of Karnataka Vs Karunakara Shetty — Murder and Culpable Homicide | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7^TH DAY OF SEPTEMBER, 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 ANIL B KATTI

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CRIMINAL APPEAL NO. 279 OF 2017 (A) C/W

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CRIMINAL APPEAL NO. 276 OF 2017 (A)

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In Criminal Appeal No.279/2017

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BETWEEN:

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Digitally signed by VEENA KUMARI B Location: High Court of Karnataka

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The State of Karnataka, by Sub-Inspector of Police, Bajpe Police Station, Mangaluru, Bengaluru, Represented by State Public Prosecutor, High Court Building, Bengaluru 560 001.

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…Appellant

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(By Sri. B.N.Jagadeesha, Addl. State Public Prosecutor)

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AND:

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Karunakara Shetty, Aged 44 years, S/o. late Bhoja Shetty, R/at Gundavu House, Machooru Village,

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…Respondent

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Mangaluru Taluk - 575001

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(By Sri. Dinesh K. Rao, for Sri. R.B.Deshpande, Advocate)

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This Criminal Appeal is filed under Section 377 of the Code of Criminal Procedure, 1973, praying to modify the judgment and order dated:20.07.2016 passed by the learned Prl. District and Sessions Judge, D.K.Mangaluru in Sessions Case No.120/2013 in passing inadequate sentence for the offence punishable under Section 324 of I.P.C. and impose proper and adequate sentence for the offence punishable under Section 324 of I.P.C. and grant such other relief or reliefs as this Court deems fit in the facts and circumstances of the case, in the interest of justice.

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In Criminal Appeal No. 276/2017

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BETWEEN:

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The State of Karnataka, by Sub-Inspector of Police, Bajpe Police Station, Mangaluru, Represented by State Public Prosecutor, High Court Building, Bengaluru 560 001.

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…Appellant

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(By Sri. B.N.Jagadeesha, Addl. State Public Prosecutor)

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AND:

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Karunakara Shetty, Aged 44 years, S/o. late Bhoja Shetty, R/at Gundavu House, Machooru Village,

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…Respondent

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Mangaluru Taluk - 575001

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(By Sri. Dinesh K. Rao, for Sri. R.B.Deshpande, Advocate)

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This Criminal Appeal is filed under Section 378(1) and (3) of the Code of Criminal Procedure, 1973, praying to grant leave to appeal against the impugned judgment and order of acquittal dated:20.07.2016 passed by the learned Prl. District and Sessions Judge, D.K.Mangaluru in Sessions Case No.120/2013 thereby acquitting the Respondent - Accused of the offences punishable under Sections 307 and 394 of IPC; set aside the judgment and order of acquittal dated 20.07.2016 passed by the learned Prl. District and Sessions Judge D.K.Mangaluru in S.C.No.120/2013 acquitting the respondents for the offences punishable under Sections 307 and 394 of IPC; convict and sentence the accused for the offences punishable under Sections 307 and 394 of IPC, in the interest of justice and equity.

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These Criminal Appeals coming on for Final Hearing through Physical Hearing/Video Conference this day, Dr. H.B.PRABHAKARA SASTRY, J., delivered the following :

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J U D G M E N T

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The common appellant - State through the complainant - Bajpe Police Station, Mangaluru, has filed both these appeals against the judgment of conviction dated 20-07-2016 and order on sentence dated 23-07-2016 passed by the Court of the Principal District

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and Sessions Judge, Dakshina Kannada, Mangaluru,

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(hereinafter for brevity referred to as "the Sessions Judge's Court) in Sessions Case No.120/2013, holding the accused guilty of the offence punishable under Section 324 of the Indian Penal Code, 1860 (hereinafter for brevity referred to as “the IPC”), at the same time, acquitting him of the offences punishable under Sections 307 and 394 of the IPC.

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Criminal Appeal No.279/2017 is filed under Section 377 of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as "the Cr.P.C."), seeking modification of the impugned judgment of acquittal and order on sentence by enhancing the quantum of sentence ordered against the accused for the offence punishable under Section 324 of the IPC; whereas the Criminal Appeal No.276/2017 is filed under Section 378(1) and (3) of the Cr.P.C., challenging the acquittal of the accused for the offences punishable under Sections 307 and 394 of the IPC and praying to convict and sentence the accused for the said offences under the IPC.

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In both the appeals, the accused is the very same

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person who is the sole respondent in both the appeals.

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The summary of the case of the prosecution as could be gathered from the records placed before us is that, the accused is the cousin brother of PW-2 (CW-2) – Smt. Vinoda Shedti. On the date 29-03-2013, between the time 8:00 p.m. and 8:30 p.m., the accused visited the house of PW-2 - Smt. Vinoda Shedti who was residing alone in her house at a place called Kokkara in Mooduperaru Village of Mangaluru Taluk and assaulted her with a wooden club inflicting injuries upon her and attempted to cause her death. In the said process, the accused also robbed a gold chain worn by her on her neck and thus has committed the offences punishable under Sections 307 and 394 of the IPC.

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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 fourteen (14) witnesses from PW-1 and PW-14, got

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produced and marked documents from Exs.P-1 to P-15(a) and produced two Material Objects at MO-1 and MO-2. From the accused’ side, neither any witness was examined nor any documents were got marked as exhibits.

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After hearing both side, the learned Sessions Judge’s Court, by its judgment of acquittal dated 20-07-2016 and order on sentence dated 23-07-2016, acquitted the accused of the offences punishable under Sections 307 and 394 of the IPC, however, convicted the accused for the offence punishable under Sections 324 of the IPC. Challenging the sentence ordered by the Sessions Judge's Court for the offence punishable under Section 324 of the IPC, the appellant - State has filed Crl.A.No.279/2017 for enhancement of the sentence on the ground that the same is inadequate. Challenging the very same impugned judgment of conviction and order on sentence, acquitting the accused of the offences punishable under Sections 307 and 394 of the IPC, the

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appellant - State has filed the Criminal Appeal

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No.276/2017, seeking to convict and sentence the accused for the said offences.

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The appellant –State, represented by the learned Additional State Public Prosecutor and the respondent/ accused, represented by his learned counsel in both the appeals are physically appearing before 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 in both the appeals, impugned judgment of conviction and order on sentence and the Sessions Judge’s Court's 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 Additional State Public Prosecutor for

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the appellant - State in his argument submitted that, the

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evidence of PW-1, PW-2, PW-3, PW-4 and PW-6 proves beyond reasonable doubt that, it was the accused and accused alone who assaulted PW-2 - Smt. Vinoda Shedti with a wooden club at MO-2 on the vital part of her body and attempted to kill her. Had the accused succeeded in his attempt, he would have been guilty of causing the death of PW-2, however, it ended in an attempt only. Learned Additional State Public Prosecutor also

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submitted that the evidence of the prosecution witnesses, more particularly of injured PW-2 and PW-1 shows that, the accused had motive to take away the life of PW-2. Even though the accused has taken a defence that in order to overcome the property dispute existing between them, the complainant has filed a false complaint against him, however, with respect to the alleged existence of any property dispute, no documents are produced by the accused, as such, the prosecution has proved the motive for the commission of the offence also.

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Learned Additional State Public Prosecutor for the appellant - State further submitted that, PW-1, PW-3, PW-4 and PW-5 have heard about the incident from the mouth of none else than the injured PW-2 herself. Thus, it shows that the injured PW-2 was conscious and able to speak after the commission of the offence. He further submitted that the FSL report and Serology Report show that the blood found on the saree worn by the injured PW-2 as well the blood found on the weapon used by the accused are human blood belonging to the same Group, as such, it is established that using the club at MO-2, the accused had assaulted the injured PW-2 and attempted to kill her.

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Further, learned Additional State Public Prosecutor, stating that even though the independent panchas to the recovery of the gold chain have not fully supported the case of the prosecution, however, they have admitted the suggestions made to them in their cross-examination by the prosecution. Further the evidence of the Investigating

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Officer corroborates the recovery made at the instance of the accused. Thus, the prosecution has proved the guilt of the accused for the offences punishable under Sections 307 and 394 of the IPC also, however, the Sessions Judge's Court, without appreciating the evidence in its proper perspective and magnifying the alleged discrepancy with respect to the weight of the gold chain recovered has totally disbelieved the recovery which resulted in acquittal of the accused of the offence punishable under Section 394 of the IPC. Simultaneously, not giving due weightage to the evidence led by the prosecution witnesses, the Sessions Judge's Court has committed an error in holding the accused guilty only for the offence punishable under Section 324 of the IPC instead of convicting him even for the offences punishable under Sections 307 and 394 of the IPC.

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Per contra, learned counsel for the respondent (accused) in his argument submitted that the relationship between the parties is not in dispute. The prosecution has

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not placed sufficient evidence to show that it was at the alleged act of the accused and accused alone, PW-2 - Smt. Vinoda Shedti sustained injuries. He further submitted that the prosecution has utterly failed to prove the intention of the accused behind the commission of the alleged offences. None of the witnesses have spoken about the accused having any intention to take away the life of the injured PW-2 - Smt. Vinoda Shedti. He further stated that the alleged recovery of the gold chain at the alleged instance of the accused has not been proved by the prosecution, since the independent panchas have given a total go-by to the case of the prosecution.

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Learned counsel for the respondent (accused) further submitted that the Sessions Judge's Court ought to have pronounced its judgment of acquittal of the accused in toto, however, it ended in pronouncing the judgment of conviction for the offence punishable under Section 324 of the IPC.

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After hearing the learned counsel for the parties and going through the entire material placed before the Court, the points that arise for our consideration in these two appeals are:

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[i] Whether the prosecution has proved beyond reasonable doubt that, on the date 29-03-2013 in between 8:00 p.m. and 8:30 p.m., in the house of PW-2 (CW-2) - Smt. Vinoda Shedti within the limits of the complainant Police Station, the accused assaulted PW-2 - Smt. Vinoda Shedti with a wooden club and inflicted injuries upon her with an intention to cause hurt and attempted to commit murder and thereby has committed an offence punishable under Section 307 of the IPC?

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[ii] Whether the prosecution has proved beyond reasonable doubt that, on the date, time and place mentioned above, the accused, apart from assaulting PW-2 (CW-2) - Smt. Vinoda Shedti and inflicting injuries upon her has voluntarily caused hurt by using a deadly weapon which is a wooden club at MO-2 and inflicting injuries upon PW-2 has robbed a gold chain worn by her and thereby has committed the offence punishable under Section 394 of the IPC?

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[iii] Whether the judgment of acquittal and order on sentence under appeal warrants any interference at the hands of this Court?

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Before proceeding further in analysing the evidence 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 offences punishable under Sections 307 and 394 of the IPC. Therefore, the accused has primarily the double benefit. Firstly, the presumption under law is that, unless his guilt is proved, the accused has to be treated as an innocent person in the alleged crime. Secondly, the accused has already been 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

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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), the Hon’ble Apex Court at Paragraph 31 of its Judgment

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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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(c) In the case of Jafarudheen and others -vs- State 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 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

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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 Sharma -vs- State (Government of NCT of Delhi) and another reported in (2022) 8 Supreme Court Cases 536.

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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 by the prosecution in this matter.

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The relationship between the parties that, PW-1 (CW-1) – Smt. Shyamala Shedti is the daughter of PW-2 (CW-2)- Vinoda Shedti and accused is the cousin brother of PW-2 – Vinoda Shedti is not in dispute. The evidence of PW-1 and PW-2 in that regard has not been denied or disputed in their cross-examination.

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The evidence of PW-1 that her mother (PW-2) - Smt. Vinoda Shedti was living alone in her house in a

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locality called Kokkara in Mooduperaru Village in Mangaluru Taluk and that herself was staying with her husband in a place called Jalakadakatte in Kateelu is further corroborated by the evidence of PW-2 (CW-2) - Vinoda Shedti, PW-3 (CW-3) - Smt. Praveena Shedti, PW-4 (CW-4) - Sri. Devappa Shetty and PW-5 (CW-5) - Sri. Balakrishna Poojary. Thus, the evidence of all these witnesses would go to show that, the alleged incident has taken place in the late evening of the date 29-03-2013 when PW-2 (CW-2) - Smt. Vinoda Shedti was staying

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alone in her house at a place called Kokkara in Mooduperaru Village of Mangaluru Taluk, within the limits of the complainant Police Station.

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About the alleged incident, among the

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prosecution witnesses, the evidence of PW-1 , PW-2, PW-3 and PW-4 throws more light.

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PW-1 (CW-1)- Smt. Shyamala Shedti has stated

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that, on the date 29-03-2013, she, joined by CW-5 - Balakrishna Poojary had been to her mother's house on

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her two wheeler Honda Activa motor cycle and returned to her home at 6 o’clock in the evening. Thereafter her mother alone was in her house. On the same night at about 8:00 p.m. or 8:30 p.m., she received a telephonic call from one Smt. Praveena Shedti, the cousin sister of her mother, who informed her that some yelling noise was heard from the house of PW-2 (Vinoda Shedti). Immediately, she (this witness) joined by CW-5 Balakrishna Poojary went to the house of her mother on her motor cycle. In the compound premises of her mother’s house, they saw the accused. There was spilling of blood inside and outside the house. She came to know that her mother had sustained injuries on her left hand

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and head and she was shifted to A.J. Hospital at Mangaluru by the neighbours. Immediately she also reached to the said Hospital and saw her injured mother. The witness stated that it was herself who got her mother admitted to the Hospital and that while going to the Hospital, her mother was in talking condition, as such, she enquired her mother about the incident. Her mother told

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her that on the same night, while she was sitting in the hall of her house, the accused Karunakara Shetty entered her house at 8:00 p.m. or 8:30 p.m. and raised a topic in connection with the house property and threatened her that he would kill her and retain the property by himself. Stating so, he assaulted her with a wooden club and inflicted bleeding injuries. The witness further stated that having been attacked and assaulted by the accused, her mother ran into the kitchen where also the accused followed her and assaulted her. In the said process, the accused has robbed the gold chain worn by her mother on her neck.

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PW-1 further stated in her examination-in-chief that, prior to the said incident, the accused now and then was visiting her mother’s house and was raising a dispute with respect to the house property. In connection with the marriage engagement of her brother also, the accused had raised a dispute with her mother.

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PW-1 further stated that after her mother was admitted to A.J. Hospital and on coming to know about the said information, the Police had visited the said Hospital, before whom she has given the first information. Stating so, the witness has identified her first information (FIR) which is her complaint to the Police at Ex.P-1. Stating that at the time of inident, her mother was wearing a black and blue colour Nylon saree which also was stained with blood and that she had produced the said saree before the Police in the presence of CW-5 - Balakrishna Poojary. The witness has identified the seizure of the saree panchanama at Ex.P-2 and identified the said saree at MO-1.

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PW-1 further stated that after a month and nine days

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of the incident, herself and her mother along with their

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neighbour Sri. Balakrishna Poojary had been to the complainant Police Station wherein they saw the accused in the Police Station. They also identified the gold chain robbed by the accused in the incident. Stating so, the

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witness has identified the said gold chain through its photograph at Ex.P-3. She has identified the accused in the Court. The witness was also subjected to a detailed cross-examination where she adhered to her original version. It was attempted to show that the alleged incident has not occurred and that a false case has been hoisted against the accused by the complainant, however the witness denied all those suggestions. She gave more details about the place of her residence and her routine of regularly visiting her mother every day and spending some time with her. She denied a suggestion made to her specifically that her mother had an accidental fall while inspecting a red stone quarry and sustained injuries. The same was not admitted as true by this witness.

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PW-2 (CW-2) – Vinoda Shedti, who is the injured according to the prosecution has stated that, on the date of incident, her daughter (PW-1) along with CW-5 (Balakrishna Poojary) had been to her house and returned to their home in the evening and thereafter she was alone

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at home. While she was sitting in the hall of her house after 7:00 p.m, the accused entered her house and questioned her as to why she did not invite him to the marriage of her son. In that connection, some verbal exchange of words took place between them. At that time, the accused took out a club and assaulted PW-2 on her head. The accused also assaulted on her left hand with

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the same club. Due to unbearable pain, she yelled. Simultaneously, out of fear, she ran into the kitchen of her house, where also the accused followed her and once

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again assaulted her with the same club. In the said process, the accused forcibly snatched the gold chain worn by her around her neck. Thereafter by throwing the club

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and taking the gold chain with him, the accused left the place. Hearing her yelling noise, CW-3 - Praveena Shedti and others came to her house, informed her daughter (PW-1) over the phone and shifted her (this witness) to the A.J. Hospital. The witness stated that her daughter came to her house and from there to the A.J. Hospital and she revealed the details of the incident to her. Stating

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that she would identify the club used by the accused for assaulting her, she has identified the same at MO-2. Further, identifying the saree at MO-1, the witness has stated that it was the same saree which she was wearing at the time of the incident. She also stated that few days after the incident, at the request of the Police, herself and her daughter had been to the complainant Police Station, where she identified the gold chain robbed by the accused from her possession. Stating so, she has identified the photograph of the said gold chain at Ex.P-3. She categorically stated that it was with an intention to cause her death, the accused has assaulted her forcibly on her head, hand and other parts of her body. She has identified the accused in the Court.

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This witness also was subjected to a detailed crossexamination from the accused’ side, wherein she stated that, there was no previous enmity between her family and the accused. She admitted a suggestion that in connection with the running of a red stone quarry behind

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their house on an elevated area, her family was unhappy with the accused, however, there was no dispute between them leading to any conflict between them. This witness stated that while she was being taken to the Hospital in an Ambulance, her daughter - Shyamala Shedti and CW-5 - Balakrishna Poojary also had accompanied her to the Hospital. While going to the Hospital in the Ambulance, the Police had enquired her. She stated that the accused robbed the gold chain from her neck and she could not resist the same as there was a blow on her head. She

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gave the weight of the chain as seven pawans. However, she is not aware whether her daughter has given the said description as three pawans. She did not admit the denial suggestions made to her about the occurrence of the incident.

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The next witness whom the prosecution examined as a material witness who has stated about the alleged incident is, PW-3 (CW-3) – Smt. Praveena Shedti. Stating that PW-2 - Vinoda Shedti and her daughter PW-1

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are her relatives, she stated that her house is near the house of Vinoda Shedti and the accused is the cousin brother of her mother. This witness also stated that PW-2 - Vinoda Shedti was living alone in her house. Now and then her daughter (PW-1 – Shyamala Shedti) used to visit her. She also keeps visiting PW-2.

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About the incident, the witness (PW-3) has stated that on the night of the incident at about 7:30 or 8 o’clock she heard the yelling noise from the house of PW-2 - Vinoda Shedti. Immediately, she and other neighbours of Vinoda Shedti rushed to her house and noticed that, Vinoda Shedti had fallen in the sit out area of her house and had sustained injuries on her head and hand. By enquiry, with Vinoda Shedti, they came to now that it was accused Karunakara Shetty, who, after entering her house, had assaulted her with a club and robbed the gold chain worn by her. This witness stated that about the incident, she informed CW-4 Devappa Shetty and PW-1 -

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Smt.Shyamala Shedti. Calling for an Ambulance, they shifted injured Vinoda Shedti to A.J. Hospital.

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PW-3 has further stated that, the next day after the incident, the Police had visited the house of Vinoda Shedti where they drew a scene of offence panchanama as per Ex.P-4 keeping her as a pancha. In the said process, the Police seized a wooden club that was found fallen in the said spot which this witness has identified at MO-2.

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About the motive, the witness stated that accused has committed this act as a revenge for PW-2 - Vinoda Shedti not inviting him (accused) to the marriage of her son.

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According to the prosecution, PW-3 had seen the accused while he was leaving the house of PW-2 after the alleged incident. Since the witness did not speak anything about the same, she was permitted to be treated as hostile and to be cross-examined by the prosecution. However, in her cross-examination, she did not support the case of the prosecution any further. This witness in her

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cross-examination from the accused’ side, apart from adhering to what she had stated in her examination–inchief has given furthermore details about the shifting of the injured PW-2 to the Hospital. She stated that while they were shifting the injured PW-2 to the Hospital in a Jeep, they came across an Ambulance coming from the opposite direction, as such, they shifted the injured PW-2 from the Jeep to the Ambulance and took her to the Hospital. In the said process, while shifting the injured from the Jeep to the Ambulance, PW-1 also came to the said spot. As such, said PW-1 took her mother to A.J. Hospital in the said Ambulance.

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PW-4 (CW-4) – Devappa Shetty - the brotherin-law of PW-2 - Vinoda Shedti has stated that, the accused is also a relative of his wife. He stated that PW-2

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was living alone in her house. Now and then he was visiting her. About the incident, the witness has stated that on the date of the incident, while he was at home, at about 8:00 p.m. or 8:30 p.m. PW-3- Praveena Shedti

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telephoned him stating that yelling noise was coming from the house of PW-2 - Vinoda Shedti. Immediately he rushed to the house of Vinoda Shedti and saw PW-2 had fallen in the verandah of her house, but injured. On enquiry, Vinoda Shedti told him that, in the same evening after 7:00 p.m. the accused entered her house and assaulted her with a wooden club on her head, hand inflicting bleeding injuries. He also stated that, PW-2 told him that, in the said process, the accused had robbed the gold chain worn by her. While PW-2 was narrating the details of the incident, PW-3 - Smt. Praveena Shedti was also present there. The witness stated that immediately they telephoned to an Ambulance and shifted the injured PW-2 to A.J. Hospital and also informed PW-1 - Smt. Shyamala Shedti about the incident.

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About motive, the witness stated that in connection with the plot of the house of PW-2, there was some dispute between Vinoda Shedti and the accused.

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PW-4 further stated that, next day after the incident,

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the Police visited the scene of offence and at that time, himself and PW-3 - Praveena Shedti were also there. In their presence, the Police drew a scene of offence panchanama as per Ex.P-4 and seized a wooden club found fallen on the spot which this witness has identified at MO-2.

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Similar to the evidence of PW-3, the prosecution had expected PW-4 also to state that, he has seen the accused who was leaving the house of PW-2 after the commission of the alleged incident. Since the witness did not whisper anything about the same, the witness was permitted to be treated as hostile at the request of the prosecution. Even in his cross-examination by it, the prosecution could not get any support in its favour about this witness seeing the accused leaving the place after the incident.

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PW-4 was subjected the detailed cross-examination from the accused' side wherein the evidence of this

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witness given in his examination-in-chief could not be shaken. The witness not only adhered to his original version but gave more details about the place of incident and the presence of blood stains in the place and also alleged robbery of the gold chain.

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PW-5 (CW-5) – Balakrishna Poojary in his evidence has stated that PW-1 is his neighbour and PW-2 who is the mother of PW-1 was living alone in the village called Mooduperaru and PW-1 was visiting her mother quite often. Sometimes, he too was accompanying PW-1. In the said process, about the incident, the witness has stated that, around the time of the incident, PW-1 had newly purchased a Honda Activa two-wheeler motor cycle. On the date of incident, both himself and PW-1 together had been to the house of PW-2 on the said motor cycle and after visiting the house of PW-2, they returned on the motor cycle at about 6:30 p.m. On the same evening at about 8:00 p.m. or 8:30 p.m., PW-1 telephoned to him stating that her mother has sustained

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injuries, as such, she has to immediately go there. He took

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her in his motor cycle to the house of PW-2 at Mooduperara village. They saw the blood stains in the house of PW-2 and came to know that PW-2 was being shifted to the A.J. Hospital. Immediately they went to A.J. Hospital and saw the injured PW-2 had sustained injures to her head and left hand. The witness stated that he enquired the injured and came to know from her that, the accused, after entering her house had assaulted her with a wooden club inflicting injures and in the said process had robbed a gold chain worn by her around her neck. The witness stated that at the time of the incident, the injured PW-2 was wearing a blue and blacki colour Nylon saree. He has identified the said saree at MO-1. He has stated that it was him, who, joined by PW-1 had produced the said saree before the Police, who seized the same by drawing the seizure panchanama as per Ex.P-2.

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In his cross-examination, the witness has given more details about he receiving the telephonic information from

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PW-1 and taking her to the said place. He made it clear that while himself and PW-1 were going to the Hospital, the injured was still being taken (on the way) to the Hospital. He also stated that with respect to the incident, he has also enquired Devappa Shetty and others who had shifted the injured to the Hospital and collected the information.

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The evidence of PW-1, PW-2, PW-3, PW-4 and PW-5 which have withstood the thorough and searching cross-examination makes it clear that, the accused was a close relative of PW-2 - Smt. Vinoda Shedti, being her cousin brother. The evidence of all these witnesses that PW-1, PW-3, PW-5 and the accused were visiting PW-2 who was living alone in her house stands established.

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The say of PW-1 and PW-2 that, very recently, the marriage related ceremony of the son of PW-2 had taken place also stands established.

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The evidence of PW-2 shows that, on the date of the incident, the accused went to her house. PW-2 has

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given a detailed account of the incident and stating that since the accused was not invited to the marriage of her son, the accused raised an objection. The verbal exchange of words in the said process developed further at which the accused took out a wooden piece which in colloquial language called as 'Marada sonte' ('ªÀÄgÀzÀ ¸ÉÆAmÉ') and assaulted her on her head and arm.

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PW-3 and PW-4, who have claimed to have rushed to the house of PW-2 injured immediately after hearing her yelling noise have clearly and specifically stated that, when they saw the injured lying in the compound premises (verandah of the house), she had sustained injuries and could still able to speak. Both of them have uniformly stated that it was through her (PW-2's) mouth only, they came to know about the incident and came to know that, it was the accused who, after entering the house of PW-2, raising a quarrel with her had assaulted her with a wooden club and inflicted injuries upon her head and arm.

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Each one of these witnesses have asserted the presence of the other witness while they saw the injured PW-2 and getting the details of the incident through none else than the injured herself.

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In addition to the above, PW-1 the complainant though in her complaint at Ex.P-1 has stated that her mother was admitted to the Hospital when she visited her, however, in her evidence, she has stated that she had accompanied her mother while her injured mother was being taken to the Hospital and it was she who got her mother admitted in the Hospital.

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Though the learned counsel for the respondent (accused) in his argument vehemently submitted that, the said evidence of PW-1 has given rise to a major contradiction in the case of the prosecution, however, the learned counsel himself conceded that, no suggestion in that regard was made to PW-1 in her cross-examination bringing to her notice about the alleged contradiction.

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No doubt Ex.P-1 is the first information given to the Police by the complainant (PW-1). Still, if according to the accused, there was some variation which they call it as contradiction in the evidence of PW-1 compared to that of her complaint at Ex.P-1, it was required of the defence counsel to put few questions in that regard to PW-1 eliciting her reaction and reply. However, admittedly, no such attempt has been made. Still, the alleged discrepancy in Ex.P-1 to that of the evidence of PW-1, would not, in any way, weaken the case of the prosecution for the reason that, PW-3 and PW-4 in their evidence have clearly and categorically stated that, when the injured was shifted from the Jeep to the Ambulance for taking her to Hospital, PW-1 had already come to the place and joined them and took her mother further to the Hospital. Therefore, the alleged discrepancy between the complaint at Ex.P-1 and the evidence of PW-1 becomes too minor to imbibe any doubt in the case of the prosecution.

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The description of the alleged incident that the accused after entering the house of PW-2 initiated a quarrel with her and assaulted her with a club at the place where she was sitting and then he followed her to the kitchen also where PW-2 the injured was said to have ran to avoid further assault by the accused has come out uniformly in the evidence of PW-1, PW-3, PW-4 and PW-5, which further go to show that all these four witnesses have heard about the incident from none else than the injured PW-2 herself and said injured has given a uniform description of the alleged incident to all those witnesses. Thus, had the incident not occurred in the said fashion and the manner, there could have been some variation in PW-2 describing the incident to PW-1, PW-3, PW-4 and PW-5. Since no such variation is present, on the contrary,

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the evidence of PW-1, PW-3, PW-4, and PW-5 have come in uniformity about the occurrence of the incident as revealed to them by the injured PW-2, the same makes the evidence of PW-2 more believable.

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PW-2, who is none else than the injured, in her evidence has given a detailed account of the alleged incident. She has specifically and clearly stated that it was the accused and accused alone who entered her house and raising an objection of he not being invited to the marriage ceremony of her son, inflicted injuries upon her by taking a wooden club found in the place. Had really PW-2 and her family had any enmity with the accused and intended to falsely implicate him in any false case, nothing had prevented PW-2 from stating that there was previous enmity between her family and the accused. On the other hand, she has stated in her cross-examination that there was no such enmity between the accused and her family even with respect to the house property which PW-2 is said to have inherited from her grandmother. Thus, the evidence of PW-2 about the incident gains more confidence to believe in it.

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The evidence of the said witness that while she was sitting in the hall of her house, the accused came and assaulted her, is further corroborated by the scene of offence panchanama at

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Ex.P-4 which also has given a detailed account of the arrangement of the house and the places where at all the blood and blood stains were found. Apart from the hall, the door leading to the kitchen and the verandah were also found with blood stains. According to PW-3 and PW-4, when they went to the house of PW-2 after hearing the yelling noise, they saw that PW-2 had fallen in the verandah of her house. Thus, the evidence of PW-2 who is none else than the injured witness gives a clear and detailed account of the occurrence of the incident.

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Our 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, 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

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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

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their evidence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his/her 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, nothing could be brought out in the cross-examination of PW-2 to suspect her evidence and to believe that falsely the accused has been implicated in the case.

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In the process of imbibing some suspicion in the evidence of PW-1 and PW-2, some attempts were made in their cross-examination to the effect that in connection with the removal of soil (mud) from a red stone quarry which was in an elevated area on the backside of the house of PW-2, the family of the injured were not happy.

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No doubt PW-2 has admitted the said suggestion that her family was not happy with the said act of the accused,

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however, by the said unhappiness with the accused itself would not be concluded as a false implication of the accused in the alleged incident, that too, when in fact immediately after the incident, PW-3, PW-4, PW-5 have collected the details about the incident from none else than the mouth of PW-2, the injured herself. Therefore, the evidence of PW-2 who is the injured herself and the evidence of PW-1, PW-3, PW-4 and PW-5 clearly proves that the alleged incident has occurred in the manner as stated by PW-2 and she was inflicted with multiple injuries

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by the accused who assaulted her with a wooden club.

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Incidentally, in the cross-examination of PW-4, a suggestion was made from the accused' side that after the incident it was himself who had shifted the injured to the Hospital. Thus, even by making the said suggestion to the witness, the accused himself has admitted about the occurrence of the incident. However, as analysed above, the involvement and the role of the accused as the person who assaulted PW-2 has been further corroborated from the evidence of PW-1, PW-3, PW-4 and PW-5.

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The evidence of PW-2 that she was assaulted by the accused and was inflicted injuries is further corroborated by the medical evidence of PW-6 (PW-10) - Dr. Jayaprakash K.

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The said witness (PW-6) who is the Professor and Head of the Department of Forensic Medicine at A.J. Institute of Medical Sciences, Mangaluru, has stated that, on the date 29-03-2013, at about 9:35 p.m., he has examined Mrs. Vinoda Shetty (PW-2), (witness has not called her as Shedthi) aged about 65 years who was accompanied by her daughter Mrs. Shyamala Shetty (PW-1) and her family friend Balakrishna. The witness has stated that the injured was brought with the history of assault near Moodperara, Kaikamba, Mangalore by a person namely Mr. Karunakar using a wooden log. Thus, the very history given to this witness (Doctor) at the earliest point of time was the assault by the accused and inflicting injuries upon her (PW-2) by none else than the accused, i.e. the name of the accused (Mr.Karunakar) was revealed at the earliest point of time before the Doctor, who examined and treated the injured. The witness

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(PW-6-Doctor) has further stated that, on examination, he

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noticed the following injuries upon the injured PW-2.

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1. Lacerated wound, 2 cm x 0.5 cm x bone

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deep, horizontally over middle of the forehead;

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2. Lacerated wound, 2 cm x 0.3 cm x bone

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deep, horizontally over left upper forehead;

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3. Lacerated wound, 4 cm x 1 cm x bone deep over left side of the back of the head, just behind the ear;

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4. Contusion, 4 cm x 3 cm, over outer aspect of left upper forearm;

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5. Lacerated wound, 5 cm x 1 cm x bone deep over left side of the face and head just in front and above the ear with underlying fracture of left zygomatic arch;

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6. Lacerated wound, 4 cm. x 1 cm x bone deep, over left side of the head, 3 cm above the ear with underlying depressed comminuted fracture of left temporal bone.

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The witness also stated that the injured was surgically treated by the Plastic Surgeon Dr. Sanath Bhandary of their Hospital and open reduction and internal fixation of fractured left zygoma and suturing of lacerations were done by him, on the date 30-03-2013.

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The witness has opined that according to him, among the six injuries mentioned above, injury Nos.1 to 4 were simple in nature and injury Nos.5 and 6 were grievous in nature. He stated that all the injuries were fresh and caused by a blunt force. Stating so, he identified the Wound Certificate issued by him at Ex.P-7.

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The witness has further stated that on the date 04-06-2013, the Investigating Officer has sent him a weapon which was a wooden stick in a sealed cover. He has verified the said wooden stick to consider its measurement, weight, breadth, length and on examination of the said weapon, he came to an opinion that the injuries mentioned in the Wound Certificate at Ex.P-7 could have

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been caused by the said weapon. Accordingly, he has issued his opinion regarding the weapon which he has identified at Ex.P-8. After seeing the wooden club at MO-2 in the Court, the witness has identified that it was the very same weapon which he has called as wooden stick which was submitted to him for his examination and report.

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In his cross-examination, attempts were made to show that the injuries found on the injured PW-2 were not intentional or they were not by the act of an assault by a person, however, they were accidental due to fall of PW-2 from a place of considerable height. However, the witness has categorically ruled out the said possibility and rather gave further details that, in such a case, the injuries could have been caused only on one side of the body whereas in the instant case, the injured had sustained injuries both on the front and backside of her body and further the nature of the injuries sustained were also not possible to be caused due to an accidental slip or fall from a height. Thus, he adhered to his original opinion that the injuries found on the injured (PW-2) which were comprising both simple and grievous could have been possible to be caused with the weapon at MO-2.

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At this juncture it has to be noticed that, though

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it was suggested to PW-6 that it is not mentioned in Ex.P-7 that the injured was conscious, however, no suggestion was made to him that the injured was

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unconscious at the time when he examined her. Therefore, the say of PW-1, PW-3, PW-4 and PW-5 that the injured was able to talk while they saw the injured at the first instance and also while shifting her to the Hospital they gathered information about the incident from none else than from the mouth of the injured herself cannot be ruled out, discarded or suspected.

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The evidence of the Doctor about the nature of injuries caused to injured PW-2 corresponds to the description of the assault as narrated by PW-2. Further, the opinion of the Doctor (PW-6) at Ex.P-8 further corroborates the evidence of PW-2 that it was with the weapon at MO-2 which is the wooden club, the accused had assaulted her. The said evidence about the use of MO-2 in the assault of PW-2 by the accused stands further corroborated by the report of FSL and the evidence of PW-14.

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PW-14 - Dr. Geetalakshmi P., the Scientific Officer of the Regional Forensic Science Laboratory (RFSL), Mangaluru, has stated that the Investigating Officer had

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sent two sealed articles at 'A' and 'B' to the Laboratory for their chemical examination. The sealed article at 'A' was containing a wooden club and another sealed article at 'B' was a saree. She subjected both the articles for their chemical examination and noticed the presence of blood on both the articles. In that regard, she had issued a report which she has identified at Ex.P-12. She further stated that she also subjected the blood stains found on those two articles for Serological Test and noticed that the blood stains found on both the articles were of human blood and belonging to Group 'B'. In that regard, she had given a Serology Report which she has identified at Ex.P-15.

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From the above evidence of PW-14 and her reports at Exs.P-12 and P-15, as rightly submitted by the learned Additional State Public Prosecutor in his argument, the evidence of PW-2 that at the time of the incident, she was wearing a saree at MO-1 and the accused had assaulted her with the club at MO-2 and due to which assault, she sustained bleeding injuries stands corroborated.

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Therefore, apart from the evidence of none else than the injured herself, the case of the prosecution is strengthened with the evidence of PW-1, PW-3, PW-4 and PW-5 and it is further strengthened with the medical evidence of PW-6 and PW-14 coupled with the chemical analysis/FSL report and Serology Report at Ex.P-12 and Ex.P-15 respectively.

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The evidence of PW-13 (CW-17) - Dinakara Shetty, the then Police Inspector of the complainant Police Station that, on the date 30-03-2013, at about 4:00 a.m.,

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he received a medico-legal case information from A.J. Hospital, Mangaluru, as such, he visited the Hospital and seeing PW-2 admitted in the ICU, who was not in a position to give her statement has recorded the complainant's statement given by her daughter PW-1 and based upon the same, he registered a case in their Station Crime number and prepared an FIR and submitted it to the Court, thereafter, he seized the clothes of the injured produced before him by PW-1 and also visited the scene of offence panchanama and drew the scene of offence

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panchanama as per Ex.P-4 and seized the club at MO-2 from the spot, all stands corroborated by the evidence of the witnesses, as analysed above.

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Further, the evidence of PW-11 (CW-18) - R. Prasanna Kumar that, he has sent the articles at MO-1 and MO-2 to the FSL for their chemical examination and the evidence of PW-12 (CW-19) -Anantha Murudeshwara that, after taking up further investigation in the matter, he received the report from Regional Forensic Science Laboratory (RFSL) as per Ex.P-12, the Wound Certificate at Ex.P-7 from the Doctor and the medical opinion of the Doctor regarding the weapon as per Ex.P-8 stands corroborated by the evidence of the independent witnesses which has been analysed above.

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Thus, unhesitatingly, it has to be held that the prosecution has proved beyond reasonable doubt that, on the date, time and place mentioned in the charge sheet, the accused, after entering the house of PW-2 has assaulted her with a wooden club at MO-2 and inflicted upon her the bleeding injuries.

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The next question would be, whether the proven act of the accused in assaulting PW-2 by inflicting bleeding injuries upon her would result into an act of attempt to cause her murder?

¶238

In the said process, it is required of the prosecution to show and prove that, the accused had an intention to cause the death of the injured PW-2 (Smt. Vinoda Shedti) and the accused has made an effort in that regard, however, it ended in an attempt only.

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Admittedly, in the case on hand, the alleged weapon said to have been used in the commission of the crime is the weapon 'club', which, according to the opinion of the Doctor (PW-6) as could be seen in Ex.P-8 is described as a wooden stick, measuring 86 cm. in length, 526 grams in weight and the maximum breadth is 3.3. cm. The wooden stick was almost straight in its longitudinal axis. The said description given in Ex.P-8 which is reiterated by the Doctor as PW-6 in his evidence, cannot, on the face of it, be described/considered the weapon as a deadly weapon. However, the measurement of the

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weapon and the nature of the said weapon - 'stick' of 'club', when considered, can be called as an instrument, which, when used as a weapon of offence was likely to cause the death, provided the injuries with the said weapon when inflicted upon sensitive and vital organ like the head of a person.

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In the instant case, the injuries sustained by PW-2 which were inflicted upon her by the accused inter alia includes two lacerated wounds over the upper and middle portion of the forehead, one lacerated wound on the back of the head, just behind the ear. However, all these three injuries were simple in nature. The other two injuries inflicted upon PW-2 injured were lacerated wounds, one of which was on the left side of the face and head just in front and above the ear with underlying fracture of left zygomatic arch and another one was a lacerated wound over left side of the head above the ear with underlying depressed comminuted fracture of left temporal bone. Though these two injuries were declared as grievous in nature by PW-6 (Doctor), however, no

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where the Doctor has called those injuries as fatal in nature. In that regard, the prosecution also has not asked any questions to the said Doctor (PW-6) as to whether those injuries could have led to the death of the injured PW-2. Even otherwise also, the location and the measurement of the two grievous injuries do not lead to an impression that those two injuries were fatal in nature and that the same could have caused the death of PW-2 injured. Therefore, considering the injuries inflicted upon the injured PW-2, it cannot be said that the accused had attempted to cause the death of PW-2.

¶245

Further, when the evidence of PW-2 - injured is analysed carefully, she has stated in the Court as well before PW-1, PW-3, PW-4 and PW-5 that the accused, apart from assaulting her in the hall of her house, where she was sitting, also followed her to the kitchen where she ran and assaulted her. If that were to be the case, had the accused really intended to cause the death of injured PW-2, it was not impossible for him to fulfill his object/intention by inflicting more injuries upon her on the

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vital organ of her body and ensuring her death. Admittedly, PW-2 injured was aged about 65 years as on the date of the incident and un-armed. Admittedly, no resistance injuries have been noticed by the Doctor in the process. As such, it was not difficult for the accused to accomplish his purpose had he really intended to do so. Further, except PW-2 injured, no one else were there in

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the house at the time of the commission of the offence. Therefore, when the accused has not continued his act of assault upon PW-2 and ensured the death of PW-2 and

¶249

when he was not prevented by anybody else from proceeding further in achieving his purpose, provided he had any such motive or purpose of killing PW-2, it would

¶250

not have been impossible for him to complete and accomplish his purpose. On the other hand, even according to PW-2, after inflicting few blows upon her with MO-2 and after alleged robbing of her gold chain, the accused left the place. Therefore, knowing fully well that the injured PW-2 was still breathing and alive and not being interfered with anybody else, the accused himself

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has voluntarily left the place. Therefore, it cannot be held that the accused had any intention to put an end to the life of injured PW-2. As such, the mere say of injured PW-2 that, the accused in his act of assaulting her had intended to kill her is only her impression but the evidence led by the prosecution has not proved the same.

¶253

Therefore, the argument of the learned Additional State Public Prosecutor that, the very act of the accused in inflicting multiple blows upon PW-2 with MO-2 itself establishes that he had intended to cause her death, is not acceptable. Thus, the act of accused becomes shorter to an attempt to cause murder of PW-2 injured, however, his act of assault upon PW-2 knowing that PW-2 was alone in her house un-armed and inflicting multiple injuries upon her with a weapon like MO-2 would make it an act of voluntarily causing grievous hurt which is punishable under Section 325 of the IPC.

¶254

However, the Sessions Judge Court even though appreciated the evidence to the extent that the prosecution has proved that it was the accused and

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accused alone who has assaulted PW-2 and inflicted multiple injuries upon her, has ignored the fact that among the injuries inflicted upon PW-2 by the accused, few were grievous in nature and the accused had inflicted them also voluntarily, that too, by using a weapon 'club' at MO-2, which though not by itself a dangerous weapon, but could have caused the death when used by the accused with an intention to cause the death of the injured. Therefore, sentencing the accused for the offence punishable under Section 324 of the IPC by the Sessions Judge's Court deserve to be modified at the same time, it also would not lead us to conclude that the said act of the accused attracts the offence punishable under Section 307

¶257

of the IPC. Thus, the appropriate offence which the accused has committed by inflicting injuries upon PW-2 injured by using MO-2 is the offence punishable under Section 325 of the IPC.

¶258

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It is also the case of the prosecution that, the

¶260

accused apart from inflicting injuries upon PW-2 and attempting to cause her death has also robbed of the gold chain at MO-2 said to have been worn by PW-2 at the time of the incident. In that regard, it is once again primarily the evidence of PW-2 who is none else than the victim in

¶261

the instant case, who has given her evidence stating that in the process of assaulting her, the accused also snatched away the gold chain worn by her and left the place. PW-1, PW-3, PW-4 and PW-5 though have corroborated the said evidence, however, admittedly, their evidence is only hear-say evidence from the mouth of PW-2 injured. No doubt PW-1 and PW-2 have stated that they have identified the said chain in the Police Station which again has been identified by them in the photograph at Ex.P-3 during the trial, however, the mere say of PW-2 that the

¶262

accused robbed her gold chain and that she was shown the said chain by the Police is not sufficient to hold that the accused had any motive to commit the act of robbery

¶263

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and with such a motive, he had robbed the alleged gold chain alleged to have been worn by injured PW-2.

¶265

In order to strengthen its case that it is not just the evidence of PW-2, but the act of robbery is further strengthened by the evidence of PW-1, the prosecution has contended that the said chain was recovered at the instance of the accused. In that regard, PW-11 (CW-18) - the Investigating Officer has stated that after apprehension of the accused and his production before him, the accused gave a voluntary statement before him stating that if he was taken along with them he would show the place where he has concealed/hidden the gold chain. The said voluntary statement was marked at Ex.P-11. According to PW-11 - Investigating Officer, on the very same day, i.e. on the date 09-05-2013 when the voluntary statement was recorded, he summoned two panchas who are PW-7 (CW-7) - Anil Kumar and CW-8 Nityananda Rai and directed a goldsmith PW-8 (CW-9) - Yavaraj Acharya to be present in the location to test and opine about the gold article to be recovered.

¶266

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Accordingly, the accused led them to his place of residence called Muchchooru Gundaavu and from there going to a place looking like a cattle-shed, took out a wrapped paper hidden inside a basket kept inside the stove in the middle of the shed and from it produced an article. The same

¶268

was examined by the goldsmith PW-8 (CW-9) - Yuvaraj Acharya and confirmed that it was a gold chain with a pendant weighing 55.440 grams. In that regard, a recovery panchanama was drawn as per Ex.P-9. PW-11 has identified the said gold chain in its photograph at Ex.P-3.

¶269

According to PW-11, he had summoned two panchas also to accompany him and had taken them to the place alleged to have been shown by the accused. Among those two witnesses, CW-8 Nityananda Rai was not examined by the prosecution and given up, however, PW-7 (CW-7) Anil Kumar was examined. The said witness in his examination-in-chief though has stated that they went in a Police Jeep to a place called Muchuchooru from where the accused took out a gold chain from the ground (earth) and

¶270

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produced before them and it was examined by another person in the spot, who examined and weighed the said article and a panchanama was drawn as per Ex.P-9, however, in his cross-examination from the accused' side, he clearly admitted the denial suggestions made to him and admitted that he had no obligation with the Police and that he had not seen the accused producing any gold chain before them. He does not even know the contents of Ex.P-9 and no gold chain was weighed in his presence. Since this witness turned totally hostile in his crossexamination from the accused' side, at the request of the prosecution, he was treated as hostile and the prosecution was permitted to cross-examine him. In his crossexamination, he admitted a suggestion as true that the evidence given by him on the date 17-03-2015 is true. However, he denied a suggestion that his evidence given on the date 25-08-2015 is false. The above evidence of

¶272

PW-7 and his conduct in the Court on different dates in different manner would only go to show that he has nodded his head in affirmative to both the prosecutor as

¶273

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well as to the defence counsel to all the questions and the suggestions put/made by them. In such a situation, it is highly unsafe to believe the evidence of PW-7, in any manner.

¶275

PW-8 (CW-9) - Yuvaraj Acharya the alleged Goldsmith, though has admitted that he has been working as a Goldsmith and stated that the Police had taken him to some place and produced a gold chain in Ex.P-3 to him and he weighed it, however, he did not say that the said gold chain was produced before him by the accused and that it was the accused who had lead him to the said place. Thus, at the request of the prosecution, he was also treated as hostile and the prosecution was permitted to cross-examine him.

¶276

Interestingly, like PW-7, this witness also admitted all the suggestions put to him by the prosecution as true. However, in his cross-examination conducted at a subsequent date from the accused' side, once again he turned back and admitted all the denial suggestions made to him from the accused' side also as true. He admitted as

¶277

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¶278

true that he had never seen the accused except in the Court Hall on the date of his evidence and his act of weighing of the gold chain was in the Police Station. He stated that he had never been taken to a place called Machchooru and that he has never weighed any gold chain in the said place.

¶279

As in the case of PW-7, even in this case also, this witness (PW-8) was permitted to be cross-examined by the prosecution by treating him as hostile. Like PW-7, this witness also admitted as true that the evidence given by him on the date 17-03-2015 i.e. in his examination-inchief was true. However, he denied a suggestion that his statements made on the date 25-08-2015 in his crossexamination from the accused' side were untrue. Thus, like the evidence of PW-7, the evidence of PW-8 is also not safe to believe.

¶280

Hence, the only evidence that remains with respect to the alleged recovery is that of PW-11, the Investigating Officer.

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Learned Additional State Public Prosecutor for the appellant in his argument submitting that the sole evidence of the Investigating Officer can be relied upon to believe the recovery made at the instance of the accused, has relied upon a judgment of Hon'ble Apex Court in MALLIKARJUN AND OTHERS VS. STATE OF KARNATAKA, reported in (2019) 8 Supreme Court Cases 359. In the said judgment, with respect to Section 27 of the Indian Evidence Act, 1872, with regard to proof of recovery of incriminating evidence, even when the panch witnesses have turned hostile, the Hon'ble Apex Court in Paragraph-

¶283

23 of its judgment was pleased to observe as below :

¶284

"23. ………….. There is no merit in the contention that merely because the panch witnesses turned hostile, the recovery of the weapon would stand vitiated. It is fairly well settled that the evidence of the investigating officer can be relied upon to prove the recovery even when the panch witnesses turned hostile. In Rameshbhai Mohanbhai Koli v. State of Gujarat, (2011) 11 SCC 111, it was held as under: (SCC pp. 121-22, paras 33-35)

¶285

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`33. In Modan Singh v. State of Rajasthan, (1978) 4 SCC 435, it was observed (at p. 438, para 9) that where the evidence of the investigating officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses did not support the prosecution version. Similar view was expressed in Mohd. Aslam v. State of Maharashtra, (2001) 9 SCC 362.

¶287

34. In Anter Singh v. State of Rajasthan, (2004) 10 SCC 657, it was further held that: (SCC p. 661, para 10)

¶288

`10. …… even if panch witnesses turn hostile, which happens very often in criminal cases, the evidence of the person who effected the recovery would not stand vitiated.'

¶289

35. This Court has held in a large number of cases that merely because the panch witnesses have turned hostile is no ground to reject the evidence if the same is based on the testimony of the investigating officer

¶290

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alone. In the instant case, it is not the case of defence that the testimony of the investigating officer suffers from any infirmity or doubt. (Vide Modan Singh case (supra), State of U.P. v. Krishna Gopal (1988) 4 SCC 302, and Anter Singh case (supra))………' "

¶292

No doubt the Hon'ble Apex Court in MALLIKARJUN's case (supra) has opined that the sole evidence of the Investigating Officer regarding recovery cannot be brushed aside, however, it has not opined that, in all cases, the evidence of the Investigating officer is necessarily required to be accepted and proceeded further in proving the alleged guilt against the accused. In cases where the evidence of the Investigating Officer does not inspire confidence to believe the same in its entirety discarding the non-supporting evidence of the other projected panchas to the alleged recovery, then the evidence of the Investigating Officer also would require some corroboration.

¶293

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¶294

In the instant case, PW-11 in his examinationin-chief itself has stated that, though the alleged panchas i.e. PW-7(CW-8) - Anil Kumar and CW-8 - Nithyananda

¶295

Rai were summoned by him to the Police Station, however, he asked his subordinate to send the Goldsmith Yuvaraj Acharya to the place revealed by the accused. The said statement of PW-11 the Investigating Officer by itself would goes to show that, before the accused could lead him to the place where the goods (alleged robbed article) were said to have been hidden by the accused, the Investigating Officer by the enquiry with the accused had already come to know about the said place. Otherwise, he would not have asked his subordinate to send the Goldsmith Yuvaraj Acharya to the said place. Even PW-8 Yuvaraj Acharya, in his examination-in-chief also has not stated that the Police took him to the said place. Therefore, nothing had remained to PW-11 to know about

¶296

the place of alleged hiding of the gold chain unless it was shown by the accused, since, as observed above, even

¶297

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according to PW-11, he himself has told about the place to his subordinate.

¶299

Secondly, according to PW-11 Investigating Officer, the accused led them to a place called Muchchooru Gundaavu and from there going to a place looking like a cattle-shed, took out a wrapped paper, hidden inside a basket kept in the stove in the middle of the shed and from it produced an article. On the other hand, even if the evidence of PW-7 Anil Kumar, the alleged pancha to the said recovery is considered in his examination-in-chief, the said witness has stated that the accused took out the gold chain from the earth (ground) in a cattle shed. There is lot of difference between taking out the alleged robbed article from inside the earth or ground and taking out the very same article from inside a paper wrapper kept in the basket which was kept in the stove lying in the middle of the cattle shed. Had really such a recovery been made, then PW-7 in his examination-in-chief and PW-11 in his evidence should have given a uniform account of the process of mode of recovery of the robbed article. Since

¶300

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there is a greater variation between the evidence of these two witnesses with respect to the mode of recovery of the robbed article, the evidence of PW-11 Investigating Officer alone is not safe to believe to prove the alleged recovery said to have been made at the instance of the accused. Thus, the alleged recovery said to have been made at the instance of the accused could not be established beyond reasonable doubt by the prosecution.

¶302

In addition to the above, several doubts arise about the alleged robbery of the gold article for the following reasons:

¶303

(i) As rightly submitted by the learned counsel for the respondent (accused) in his argument, PW-1 the complainant who was none else than the daughter of the victim, even after ascertaining the complete details about the alleged incident and also the alleged robbery of the gold chain from her mother injured PW-2, has not given the description of the alleged robbed gold chain like its measurement, weight, pattern, look, design, attachment of a pendant, etc. Several of these details could have

¶304

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been given easily and clearly by PW-1 the complainant who must have seen her mother wearing the said chain for

¶306

years and also has collected the details of the alleged robbery from none else than her mother injured PW-2 herself.

¶307

(ii) The injured PW-2 the mother of PW-1 complainant also neither in her statement before the Police nor in her evidence as PW-2 has given the description of the alleged stolen gold chain, though she had every opportunity and occasion to give those details to enable the Police to trace and identify the said gold chain or to ensure the correctness/authenticity of the alleged recovery.

¶308

(iii) About the alleged weight of the alleged stolen gold chain also, there is a major discrepancy in the evidence of PW-1 (daughter of the injured PW-2) and PW-2 (injured). The alleged discrepancy is not in the form

¶309

of few milligrams or couple of grams, but it runs into a difference of nearly 20 grams and above. Furthermore, PW-2 the injured victim who claims to have been wearing

¶310

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the said chain since a long time has shown her ignorance about the approximate weight of the said chain also. On the other hand, the injured PW-2 has stated the weight of the said chain as three pavans at one place and seven pavans at another place ('pavan' in this region means 'savaran' or 'sovereign' equivalent to eight grams of gold). Thus, the alleged variation in the weight of the chain also results into a huge difference.

¶312

(iv) Lastly and more importantly, PW-6 the Doctor who examined PW-2, in his cross-examination has admitted a suggestion as true, which reads as follows:

¶313

"There may be possibility of sustained abrasion over the neck if a person forcibly snatches a thick gold chain from the neck. It is true the victim in the present case not sustained any such abrasion over her neck."

¶314

If according to PW-2, the gold chain was weighing about seven pavans (about 56 grams) which according to PW-11, the Investigating Officer and the panchanama at Ex.P-9 was weighing 55.440 grams, when

¶315

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¶316

the accused has forcibly snatched it from the neck of the injured PW-2, then there would have been all the possibility of causing some mark, injury or at least an abrasion on the neck of the injured PW-2 as per the evidence of PW-6 Doctor. Admittedly, no mark, injury or abrasion, as such, was found around the neck of the injured PW-2.

¶317

This also further strengthens the doubt in the case of the prosecution about the alleged recovery of the gold chain at the instance of the accused and the act of the alleged robbery by the accused. As such, we do not find any infirmity or error in the finding of the Sessions Judge's Court in holding that the prosecution has failed to prove the alleged guilt against the accused for the offence punishable under Section 394 of the IPC.

¶318

However, in view of the analaysis of the evidence made above, the same would go to show that the accused was required to be convicted for the offence punishable under Section 325 of the IPC. However, he was convicted for the offence punishable under Section

¶319

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324 of the IPC. Thus, it is only to that limited extent, interference by this Court in the impugned judgment is warranted.

¶321

However, there is no reason for interfering in the impugned judgment of acquittal passed by the Sessions Judge's Court, acquitting the accused of the offences punishable under Sections 307 and 394 of the IPC.

¶322

Thus the Criminal Appeal No.276/2017 deserves to be partly allowed. At the same time, since the proven guilt is held to be not the offence punishable under Section 324 of the IPC, but it should have been for the offence punishable under Section 325 of the IPC, the Criminal Appeal No.279/2017 filed by the prosecution on its own stands disposed of.

¶323

Accordingly, we proceed to pass the following:

¶324

O R D E R

¶325

[i] The Criminal Appeal No.276/2017

¶326

stands allowed in-part ;

¶327

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[ii] The impugned judgment of acquittal dated 20-07-2016 and order on sentence dated 23-07-2016 passed by the learned Principal Sessions Judge, Dakshina Kannada, Mangaluru, in Sessions Case No.120/2013, convicting the accused for the offence punishable under Section 324 of the Indian Penal Code, 1860, stands modified. Accordingly, the accused - Karunakara Shetty, aged 44 years, S/o. late Bhoja Shetty, R/at Gundavu House, Machooru village, Mangaluru Taluk - 575 001, stands convicted for the offence punishable under Section 325 of the Indian Penal Code, 1860.

¶330

However, the impugned judgment passed by the Sessions Judge's Court, acquitting the accused of the offences punishable under Sections 307 and 394 of the IPC, remains unaltered.

¶331

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¶332

Consequently, since the accused is held guilty of the offence punishable under Section 325 of the Indian Penal Code, 1860, he is required to be heard on the sentence and separate sentence is required to be prescribed. As such, Criminal Appeal No.279/2017 filed by the appellant - State seeking enhancement of sentence for the offence punishable under Section 324 of the Indian Penal Code, 1860 stands disposed of.

Sd/JUDGE

Sd/JUDGE

BMV*

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¶337

HEARING ON SENTENCE

¶338

Heard the learned counsel for the respondent (accused) and the learned Additional State Public Prosecutor for the appellant -State, on sentence.

¶339

Learned counsel for the respondent (accused) submitted that, the alleged offence has taken place more

¶340

than ten years back and that the accused being the relative of the injured PW-2 is maintaining a cordial relationship with the family of the injured, as such, the said relationship need not be harmed by imposing maximum punishment to the accused. Further, he submitted that the accused is a family holder with large number of dependents upon him. He is the only earning member in the family, as such, a most lenient view be taken while ordering the sentence.

¶341

Per contra, learned Additional State Public Prosecutor for the appellant -State submitted that, the offence is committed in the month of March-2013,

¶342

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hitherto the accused has led a comfortable life with his family and the alleged dependants, if any. He submitted that the offence committed is against an aged lady, that too, when she was alone in her home. As such, the circumstances of the case warrants imposition of the maximum punishment for the proven guilt against the accused.

¶344

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.

¶345

Considering the submissions made from both side regarding sentence and also after considering the mitigating factors and also of the fact that the accused is said to be the only person earning in his family and the entire family is dependent upon him, and also the facts and circumstances of the case on hand, we proceed to pass the following:

¶346

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¶347

ORDER ON SENTENCE

¶348

[a] The accused - Karunakara Shetty, aged

¶349

44 years, S/o. late Bhoja Shetty, R/at Gundavu House, Machooru village, Mangaluru Taluk - 575 001, who is now convicted for the offence punishable under Section 325 of the IPC, is sentenced to undergo simple imprisonment for a period of two and a half years and also to pay a fine of a sum of `40,000/- (Rupees Forty Thousand Only) and in default of payment of fine, to further undergo simple imprisonment for

¶350

a period of three months;

¶351

[b] The period of imprisonment including judicial custody, if any, already undergone by the accused, in this case be given set-off, under Section 428 of the Code of Criminal Procedure, 1973;

¶352

[ [c] The fine amount, if any, already paid

¶353

by the accused in this case, subsequent to the

¶354

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Sessions Judge's Court passing the impugned judgment and order of sentence, convicting and sentencing the accused for the offence punishable under Section 324 of the IPC, be taken as the fine amount paid under the present order;

¶357

[d] The apportionment of the fine amount as ordered by the Sessions Judge's Court in the impugned order of sentence remains unaltered;

¶358

[e] The respondent/accused shall

¶359

surrender before the learned Sessions Judge's Court within forty five (45) days from today and serve the sentence as ordered above by this Court;

¶360

[f] A free copy of this judgment be furnished to the accused immediately by the Registry.

¶361

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

¶364

Sd/JUDGE

¶365

Sd/JUDGE

¶366

BMV* List No.: 1 Sl No.: 9

The State of Karnataka v. Karunakara Shetty

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The State of Karnataka v. Karunakara Shetty

Case brief

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