Govinda Bovi Vs State by Karnataka by

THIS CRL.A. IS FILED U/S. 374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:29.4.13 PASSED BY THE P.O., FTC, CHIKMAGALUR IN S.C.NO.120/2005 - CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCES P/U/S 307 R/W 34 OF

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HC-KAR

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IPC. AND THE APPELLANTS/ACCUSED ARE SENTENCED TO UNDERGO S.I. FOR THREE YEARS AND TO PAY A FINE OF RS.5,000=00 EACH, IN DEFAULT TO SUFFER S.I. FOR ONE YEAR FOR THE OFFENCE P/U/S 307 R/W 34 OF IPC.

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THIS CRL.A., COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE M G UMA

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ORAL JUDGMENT

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Appellants being accused Nos.1 and 2 in SC.No.120/2005 on the file of the learned Fast Track Court - 1, Chikkamagaluru are impugning the judgment of conviction and order of sentence dated 29.04.2013, convicting them for the offence punishable under Section 307 R/w Section 34 of IPC, and sentencing to undergo simple imprisonment for 3 years each and pay a fine of Rs.5,000/- each, with default sentences.

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Brief facts of the case of the prosecution is that, on 20.05.2005, at about 7.45 pm., accused Nos.1 and 2 in furtherance of their common intention to cause death of PWs.2 and 8 came in front of the house of PW2 and started abusing them in filthy language. When PW2 and 8 came out to enquire them, accused No.1 assaulted PW8 with an axe on his neck and

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his back, while accused No.2 assaulted PW2 with a sickle on his head and thereby committed the offence punishable under Section 307 R/w Section 34 of IPC. The investigation was undertaken and the Charge sheet came to be filed.

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The matter was committed to the Sessions Court. The appellants being accused Nos.1 and 2 have appeared before the Trial Court, pleaded not guilty and claimed to be tried. The prosecution examined PWs.1 to 10, got marked Exs.P1 to 11 and identified MOs.1 to 7 in support of its contention. Accused have denied all the incriminating material available on record, but have not led any evidence initially, in support of their defence. The Trial Court on the basis of the materials on record, proceeded to convict the accused by passing the judgment dated 08.03.2007, and the same was challenged before this Court by filing Crl.A.No.1543/2007. This Court taking into consideration the fact that the Doctor, who treated the injured eye-witnesses had not been examined, remanded the matter back to the Trial Court, after setting aside the judgment of conviction and order of sentence.

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Thereafter, PW10 was examined before the Trial

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Court. Accused Nos.1 and 2 have examined themselves as DWs.1 and 2 and got marked Exs.D1 and 2 in support of their defence. The Trial Court once again, taking into consideration the materials on record, passed the impugned judgment of conviction and order of sentence, convicting and sentencing them as stated above. Being aggrieved by the same, the accused are before this Court.

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Heard Sri.Nithin Gowda.K.C, learned Amicus curiae for the appellants and Smt.Rashmi Jadhav, learned ASPP for the respondent. Perused the materials including the Trial Court records.

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In view of the rival contentions urged by learned counsel for both the parties, the points that would arise for my consideration is:

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“Whether the appellants-accused Nos.1 and 2 have made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the Trial Court?

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My answer to the above point is 'partly in the affirmative' for the following:

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REASONS

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It is brought to the notice of the Court that a counter case in SC No.53/2006 was tried before the Trial Court, where PWs.3 and 8 herein were the accused and accused Nos.1 and 2 herein were the injured eye witnesses. The said case ended in acquittal. It is stated that, it is a case and counter case, which were registered simultaneously one against the other. Since the accused Nos.1 and 2 have registered a criminal case against the injured eye witness in the present case, the appellants cannot dispute the factum of incident, place of incident and their presence at the scene of occurrence. It is stated that the Trial Court acquitted PWs.3 and 8 in SC No.53/2006, by holding that they were not the aggressors, but it is the present appellant Nos.1 and 2, who are aggressors who assaulted PWs.2 and 8.

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The materials on record disclose that the incident had taken place in front of the house of PWs.2 and 3. It is not

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the case of the prosecution that PWs.2 and 8 have gone near the house of the present accused for commission of the offence. It is under these circumstances, prima-facie, it is to be held that the appellants are the aggressors, who have voluntarily gone near the house of PWs.2 and 3, where the incident had occurred.

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Exs.P8 and 9 are the wound certificates pertaining to PWs.2 and 8. According to which, PW2 sustained one simple injury, while PW8 had sustained 3 injuries, out of which, injury No.2 i.e., compound fracture of ribs with pneumothorax is grievous in nature.

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The accused, while leading the defence evidence, examined themselves as DWs.1 and 2 and got marked Exs.D1 and 2 i.e., the wound certificates, to show that they have also sustained injuries as per Exs.D1 and 2, according to which the accused have sustained simple injuries.

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When admittedly, there was case and counter case, PWs.2 and 8 and accused Nos. 1 and 2 have sustained injuries, and the accused are not in a position to dispute either the scene of occurrence or their presence at the scene of

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occurrence, or the fact that PWs.2 and 8 have sustained injuries, I do not find any reason to disbelieve the version of prosecution that the incident had taken place in front of the house of PWs.2 and 3. Even if the contention of the learned counsel for the appellant that, PW3 is a planted witness and his evidence cannot be accepted is to be believed, the evidence of PW2 and 8, who are the injured witnesses cannot be disbelieved. Therefore, I am of the opinion that the prosecution is successful in proving the guilt of the accused Nos.1 and 2 beyond reasonable doubt.

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At this stage, learned amicus curiae for the appellant contends that accused Nos.1 and 2, who were initially apprehended on 23.05.2005, were enlarged on bail on 17.01.2006, later on convicting the accused for first time on 08.03.2007, they were taken into custody and they were released on bail only on 29.10.2007. Later when the impugned judgment of conviction and order of sentence was passed, they were taken into custody on 29.04.2013, and they were released on bail on 09.05.2013. Hence, it is the contention of the learned amicus curiae for the appellant that accused Nos.1

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and 2 were in custody for a total period of 484 days, that means to say, 1 year 3 months. Hence, alternatively learned amicus curiae for the appellant prays for showing leniency in favour of accused Nos.1 and 2 in sentencing them.

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It is the contention of the prosecution that the son of accused No.2 had died in an incident where, PW2 and his brother have ran over the cart on the young child and that is the motive, which led accused Nos.1 and 2 to pickup quarrel with PW2 near his house. The fact of death of the child of accused No.2, by the cart driven by PWs.2 and his brother is not disputed. The incident had taken place in the year 2005 i.e., about 20 years ago. It is stated that the accused were in custody for about 1 years 3 months. Even though, the counter case was tried in SC No.53/2006, where PWs.2 and 8 were the accused, they were already acquitted by the Trial Court holding that they were not the aggressors. Admittedly, these appellants being accused Nos.1 and 2 have also sustained injuries as per Exs.D1 and 2. Section 307 of IPC does not prescribe minimum sentence to be imposed on them. Taking into consideration all these facts and circumstances, I am of the opinion that

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leniency may be shown while sentencing the accused. Hence, I am of the opinion that, the order of sentence passed by the Trial Court could be modified.

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Accordingly, I answer the above point partly in the

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affirmative and proceed to pass the following;

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ORDER

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(i) The appeal is allowed in part .

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(ii) The judgment of conviction dated 29.04.2013 passed against the appellants in SC.No.120/2005 on the file of the learned Fast Track Court - 1, Chikkamagaluru, for the offence punishable under Section 307 R/w Section 34 of IPC is confirmed.

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(iii) However, the order of sentence passed by the Trial Court is modified as under:

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(a) Appellant Nos.1 and 2 are sentenced to undergo simple imprisonment for a period of one year each for the offence punishable under Section 307 of IPC.

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(b) The fine amount as ordered by the Trial Court remains intact with ¼^th of default sentence.

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(c) The accused are entitled for set off for the period they were in prison during trial.

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iv. The jail authority, is directed to verify the length of the imprisonment suffered by the accused and if in case, they have already served the sentence, to release the appellants forthwith, if they are not required to be detained in judicial custody in any other case and if the fine amount is deposited.

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Registry to send back the Trial Court records along with copy of this judgment to the Trial Court, for information and needful action.

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Registry is directed t pay fee of Rs.10,000/- to the

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learned Amicus Curiae.

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Sd/(M G UMA) JUDGE

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BH

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CT:VS List No.: 1 Sl No.: 18

Govinda Bovi v. State by Karnataka by

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Govinda Bovi v. State by Karnataka by

Case brief

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