Allowed

Sri Venkatesha v. the State of Karnataka

Karnataka HC15 Nov 2024CRL.A/834/2012

Case brief

AI extract

What is this about?

In a criminal appeal against a conviction for attempted murder, the High Court held that the prosecution failed to prove crucial aspects regarding hospital treatment, the weapon recovered, and the recording of the injured's statement. Due to contradictions and the existence of a property dispute, the court found the sole eyewitness testimony insufficient for conviction and acquitted the appellant,

What did the court decide?

Impugned judgment of conviction set aside; appellant acquitted of Section 307 IPC; fine refunded; release ordered if not involved in other cases.

Sri Venkatesha Vs the State of Karnataka — Murder and Culpable Homicide | Karnataka HC (2024)

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NC: 2024:KHC:46394 CRL.A No. 834 of 2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL APPEAL NO. 834 OF 2012

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BETWEEN:

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SRI VENKATESHA S/O LATE SRI DHASAPPA AGED ABOUT 24 YEARS R/A NO.241, KAVERI NAGAR NEAR ASHWATHA KATTE TEMPLE 2ND STAGE, BANASHANKARI, BANGALORE REP. BY HIS MOTHER SMT. GOURAMMA

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…APPELLANT

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(BY SRI. SATYANARAYANA S CHALKE.,ADVOCATE)

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AND:

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THE STATE OF KARNATAKA REP BY THE STATION HOUSE OFFICER BANASHANKARI POLICE STATION BANGALORE CITY

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…RESPONDENT

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Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA

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(BY SRI.K. NAGESHWARAPPA, HCGP)

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THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE DATED 23.04.2012 PASSED BY THE P.O., F.T.C.-12, BANGALORE IN S.C.NO.735/2011 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 307 OF IPC.

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THIS APPEAL, COMING ON FOR DICTATING JUDGMENT, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

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NC: 2024:KHC:46394 CRL.A No. 834 of 2012

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ORAL JUDGMENT

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This appeal is filed by the sole accused praying

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to set aside the judgment of conviction and order on sentence dated 23.04.2012 passed in S.C. No. 735/2011 by the Additional Sessions Judge and Presiding Officer, Fast Track Court - 12, Bengaluru. The appellant - accused has been sentenced to undergo rigorous imprisonment for a period of 7 years and to pay fine of Rs.10,000/- and in default to undergo rigorous imprisonment for a period of

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1 year.

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Factual matrix of the case is that P.W.4 – Smt.

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Lakshmamma has filed a complaint – Ex.P.4 stating that on 10.03.2011, at about 02.30 pm, when she was washing

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clothes in front of her house, her neighbor – appellant - accused came to her house and threw stones on the sheets of her house, caused damage and claimed that the said house belongs to him and she has to vacate the same. Further, he took knife and caused cut injury to her neck and at that time one Kulli – sister of appellant -

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accused was also present at the spot and she did not stop the appellant - accused. She immediately went to the Police Station and the Police took her to the Hospital and she took treatment. The Police after investigation filed charge sheet against the appellant - accused for offence under Section 307 of IPC. Case came to be committed to the Sessions Court. The Sessions Court framed charge against the appellant - accused for offence under Section 307 of IPC. In order to prove the charge the prosecution has examined 9 witnesses as P.W.1 to P.W.9 and got marked Ex.P.1 to Ex.P.13 and material objects as M.O.1 to M.O.3. Learned Sessions Judge after hearing arguments formulated points for consideration and passed the impugned judgment convicting the appellant - accused for offence under Section 307 of IPC. Said judgment of conviction and order on sentence has been challenged in this appeal.

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Heard learned counsel for appellant - accused and learned HCGP for respondent – State.

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NC: 2024:KHC:46394 CRL.A No. 834 of 2012

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Learned counsel for appellant - accused would contend that the complaint came to be registered on 11.03.2011 at 12.45 am and FIR has been handed over to the Magistrate at 10.00 pm on 11.03.2011 and said delay has not been explained. The spot has been shown by P.W.7 – Muniraju who is the son of P.W.4 – injured and the spot mahazar has been drawn and he was not eye witness to the incident. Ex.P.10 – wound certificate has been issued by the General Hospital, Jayanagar, Bengaluru. P.W.4 has not stated that she had been taken

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to General Hospital, Jayanagar, Bengaluru and she had taken any treatment in that Hospital. P.W.4 is stated to have taken treatment in Victoria Hospital, Bengaluru, but no documents pertaining to Victoria Hospital, Benagluru have been produced. The injury noted in Ex.P.10 – wound certificate is stated to be simple in nature and if that injury was life threatening, she ought to have gone to the Hospital instead of Police Station. No documents are produced to show that P.W.4 has been admitted to Victoria Hospital for 5 days from 10.03.2011 to 14.03.2011. What

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is the treatment given to P.W.4 in Victoria Hospital, Bengaluru, has not been brought on record. The recovery of M.O.2 – cutter and M.O.3 – blood stained shirt from appellant - accused as per his voluntary statement under mahazar – Ex.P.1 has not been proved as P.W.1 and P.W.2 panchas have not supported the case of prosecution. Even though M.O. 1 to M.O.3 have been seized on or before 12.03.2011 there is delay in sending them to FSL as they are sent to FSL on 07.06.2011. Panchas to Ex.P.7 – seizure mahazar of the saree – M.O.1

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have not been examined even though they are cited as C.W.5 and C.W.6 in the charge sheet. P.W.7 has stated that he had produced the saree before the Police on 11.03.2011 but the mahazar has been prepared on 22.03.2011 as per Ex.P.7. P.W.4 has deposed that she had handed over the saree to the Police and therefore there is contradiction with regard to production of M.O.1 – saree to

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the Police. The material objects M.O.1 to M.O.3 have been sent to FSL one day prior to the filing of the charge sheet.

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M.O.2 – cutter has not been shown to the Doctor for

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NC: 2024:KHC:46394 CRL.A No. 834 of 2012

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getting opinion as to whether it can cause the injury stated to have been sustained by P.W.4. Ex.P.4 – statement of P.W.4 on the basis of which case came to be registered is stated to have been given by P.W.4 in Victoria Hospital, Bengaluru. Who has recorded the statement of P.W.4 – Ex.P.4 has not been brought on record and the said person has not been examined. P.W.3 in his cross-examination has sated that he had sent one Kanthatraju, ASI, to Victoria Hospital, Bengaluru but he is neither cited as a charge sheet witness nor has been examined. Conviction has been rendered on the basis of sole testimony of P.W.4. As there is dispute with regard to the property in which P.W.4 is residing and in respect of which Hakku Patra has been issued in favour of appellant – accused, sole testimony of P.W.4 cannot be the basis for conviction as there is a property dispute between P.W.4 and the appellant - accused. P.W.4 has stated that appellant - accused assaulted her with knife but what is seized is a cutter. On these grounds he prayed for allowing the appeal and acquit the appellant - accused.

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NC: 2024:KHC:46394 CRL.A No. 834 of 2012

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Learned HCGP appearing for the respondent –

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State would contend that P.W.4 is the injured and she has specifically deposed regarding this appellant - accused throwing stones on her house and assaulting her with knife on her neck and causing injury. The sole testimony of P.W.4 – injured is sufficient to convict the appellant – accused for offence under Section 307 of IPC. The injury caused to P.W.4 is on neck which is a vital part. He supports the reasons assigned by the trial Court in convicting the appellant - accused. On these grounds he prayed for dismissal of the appeal.

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Having heard the learned counsel for the parties and considering the material placed on record, the following point arises for my consideration.

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Whether the trial Court has erred in convicting the appellant - accused for offence under Section 307 of IPC?

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My answer to the above question is in the Affirmative for the following reasons:

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P.W.4 is the injured and incident is stated to have taken place on 10.03.2011 at 02.30 pm when P.W.4 was washing clothes in front of her house. After the incident, P.W.4 is stated to have gone to the Police Station. The Police are stated to have taken P.W.4 to General Hospital, Jayanagar, Bengaluru and after treatment, she was referred to Victoria Hospital, Bengaluru. As per Ex.P.10 – wound certificate P.W.4 has been examined by the Doctor at 04.40 pm i.e, 2 hours 10 minutes after the incident. P.W.4 in her entire evidence has not stated that she had

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been taken to General Hospital, Jayanagar, Bengaluru. P.W.4 has deposed that she had been taken to Victoria Hospital, Bengaluru. The prosecution has not brought on record the documents pertaining to Victoria Hospital, Bengaluru, for having given treatment to P.W.4 in the said hospital. P.W.9 – the Doctor has stated in Ex.P.10 – wound certificate that the same has been issued after receipt of records from the Victoria Hospital, Bengaluru and she has handed over the records of the Victoria Hospital to the Investigating Officer. The Investigating

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NC: 2024:KHC:46394 CRL.A No. 834 of 2012

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Officer has not produced any records pertaining to Victoria Hospital, Bengaluru. What is the treatment given to P.W.4 at Victoria Hospital, Bengaluru has not been brought on record. In Ex.P.10 – wound certificate, as per the history noted, assault has taken place at 02.00 pm on 10.03.2011 but as per the version of P.W.4 the incident has taken place at 02.30 pm.

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Ex.P.4 – the statement on the basis of which case came to be registered has been recorded when P.W.4 was admitted in Victoria Hospital, Bengaluru. The Police Official who recorded the said statement has not been cited as a charge sheet witness nor has been examined. P.W.3 in the cross-examination has stated that he had

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sent Kantharaju – ASI to record the statement of P.W.4. Said Kantharaju – ASI has not been cited as charge sheet witness and he has not been examined as a prosecution witness. Therefore, the prosecution has not brought on record as to who recorded Ex.P.4 - statement of P.W.4 when she was admitted in Victoria Hospital, Bengaluru. On

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10 -

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NC: 2024:KHC:46394 CRL.A No. 834 of 2012

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the said statement – Ex.P.4 there is a signature of the Doctor and who is that Doctor has not been brought on record and the Doctor has not been cited as a witness or not been examined to establish as to whether the injured - P.W.4 was in a condition to give statement at that time.

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M.O.2 – cutter and M.O.3 shirt of appellant -

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accused have been recovered under mahazar – Ex.P.1 from the house of appellant – accused. P.W.1 and P.W.2 are panchas to Ex.P.1 – mahazar and they have not supported the case of the prosecution. Recovery of M.O.2 – cutter and M.O.3 – blood stained shirt at the instance of appellant - accused under mahazar has not been proved. P.W.4 has stated that she was assaulted with a knife but, what is recovered under mahazar - Ex.P.1 is a cutter which is at M.O.2.

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There is a dispute with regard to property between appellant - accused and P.W.4 and it is brought on record in the cross-examination that Hakku Patra in respect of the said property has been issued in favour of appellant – accused. Considering the aspect that there was

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NC: 2024:KHC:46394 CRL.A No. 834 of 2012

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a dispute with regard to the property between P.W.4 and appellant – accused, the sole testimony of P.W.4 cannot be based for convicting the appellant - accused. The sole testimony of P.W.4 cannot inspire the Court to convict the appellant - accused for offence under Section 307 of IPC. Without considering all these aspects learned Sessions Judge has erred in convicting the appellant - accused for offence under Section 307 of IPC. Considering the above aspects benefit of doubt is to be extended to the appellant - accused.

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In view of the above the following;

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O R D E R

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i. Appeal is allowed.

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ii. The judgment of conviction and order on sentence dated 23.04.2012 passed in S.C. No. 735/2011 by the Additional Sessions Judge and Presiding Officer, Fast Track Court - 12, Bengaluru is set aside.

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iii. The appellant - accused is acquitted for offence under Section 307 of IPC.

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NC: 2024:KHC:46394 CRL.A No. 834 of 2012

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iv. Fine, if any, paid by the appellant - accused is ordered to be refunded to him.

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Learned counsel for appellant - accused submits that the appellant - accused is in custody and he is lodged in Central Prison, Bengaluru. Registry is directed to issue intimation to the said prison authorities for release of appellant - accused if he is not required in any other case.

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Sd/(SHIVASHANKAR AMARANNAVAR) JUDGE

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LRS List No.: 1 Sl No.: 7

Sri Venkatesha v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Sri Venkatesha v. the State of Karnataka

Case brief

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What did the court decide?

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