B.N.Umesha @ Umesh Poojari Vs the State of Karnataka

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 18.07.2013 PASSED BY THE SESSIONS JUDGE, KODAGU AT MADIKERI IN SPL. CASE (ATRO) NO.26/2009 CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 448, 354, 342, 307 OF IPC AND SECTION 3(1)(xi) OF THE SC/ST (POA) ACT, 1989.

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

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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Heard the learned counsel for the appellant and the learned High Court Government Pleader appearing for the respondent-State.

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The factual matrix of the case of the prosecution is that the victim P.W.2 belongs to Adhikarnataka caste which is classified as Schedule Caste. The accused is ‘Billava’. The complainant C.W.1 is the husband of the victim C.W.2. The criminal law has been set into motion on the complaint given by the C.W.1, that is the husband of the victim in the Apollo BGS Hospital at Mysore on 07.05.2009 and when the injured was taken to the hospital on the same day, the Police have recorded the statement of the injured also in the Apollo BGS Hospital at Mysore in the presence of the Tahsildar, Mysore Taluk on 15.05.2009 and based on the complaint, the Police have registered the case and investigated the matter and filed the charge sheet. The accused was secured and he did not plead guilty and claimed trial and hence, the prosecution examined witnesses P.W.1 to P.W.23 and also got marked

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Ex.P1 to Ex.P20(a). MO-1 to MO-14 are also marked. The accused also got examined himself as D.W.1 and marked the document Ex.D1- a letter.

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The Trial Court taken note of the weapon which was used for committing the offence, that is M.O-4 and blood stained cement concrete pieces, blood stained sample paint collected from wall, red bangle pieces, blood stained window curtain, a small card wordings Umesh Shuntikoppa written in English and a sheet of paper containing blood and also taken note of the evidence of P.W.1 and P.W.2, particularly the evidence of P.W.2 –victim as well as medical evidence of doctor-P.W.23, who was examined in support of the case of the prosecution regarding treating of the injured as well as the document Ex.P13, Ex.P18 and also the report of the doctor after the examination of the knife which was used for committing the offence and also records Ex.P13, Ex.P16 and Ex.P18 taken note of and even defense evidence which has been led by the accused was also taken note of by the Trial Court and nowhere denied with regard to the incident is concerned except stating that he was having love affair with the victim P.W.2 and not denied inflicting of injury to the victim in his defense evidence and hence, comes to the

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conclusion that the evidence of P.W.1, P.W.2 and P.W.15 who is the Tahasildar in whose presence the statement of victim was recorded in the BGS Hospital as well as the evidence of

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P.W.8 referred to above who is the neighbor of the complainant and she has totally turned hostile and not supported the case of prosecution. However, P.W.10 another neighbor has only deposed that on 07.05.2009, the neighbors were gathered near the house of the complainant and she also went there and found that C.W.1 had been injured.

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P.W.11 speaks about that on 07.05.2009 at around 11.20 a.m. the complainant called him over the phone and told him that his wife has been stabbed and he should go to the house and see her and immediately he went to the spot and found the injured. He is not an eye-witness to the incident and his evidence is only circumstantial evidence. P.W.17 is the neighbour who turned hostile. P.W.12 is the photographer who took the photographs. P.W.13 is the Secretary of the Village Panchayath and he deposed that he gave the residential certificate Ex.P.7 in respect of the complainant. P.W.18 speaks about seizure of the properties. The Trial Court particularly taking into note of the evidence of

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P.W.1, P.W.2, doctor evidence and also the evidence of

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P.W.15 Tahsildar in whose presence the statement was recorded and the documents which have been marked before the Court, acquitted the accused for the offence punishable under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (‘SC/ST Act’ for

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short) and convicted for the offences punishable under Sections 448, 354, 342 and 307 of IPC and Section 3(1)(xi) of SC/ST Act and sentenced to undergo rigorous imprisonment for 5 years and to pay a fine of Rs.15,000/- for the offence punishable under Section 307 of IPC. In default of fine, to undergo rigorous imprisonment for one year and rigorous imprisonment for six months and fine of Rs.1,000/- for each of the offences punishable under Sections 448, 354 and 342

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of IPC and Section 3(1)(xi) of SC/ST Act. In default of payment of fine to undergo rigorous imprisonment for two months. In total fine payable is Rs.19,000/-.

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Being aggrieved by the said order of conviction

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and sentence, the present appeal is filed before this Court.

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The main contention of the learned counsel for the appellant is that the Trial Court committed an error in not considering the material in proper perspective. The learned

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counsel contend that the Trial Court only relied upon the evidence of P.W.2 and other witnesses have not supported the case of the prosecution. The medical evidence is also not properly appreciated by the Trial Court. The learned counsel contend that the appellant was in custody for a period of 2½ years during the trial period. The medical evidence also not supports the case of the prosecution. The main case of the accused is that there was an ill-will between the accused and husband of P.W.2 i.e., P.W.1 and made use of the opportunity and erroneously sentenced the accused and hence it requires interference of this Court.

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Per contra, the learned High Court Government

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Pleader appearing for the respondent State would contend that the Court has to take note of that the incident was taken place when the accused went to the house of the complainant and outraged the modesty and when she resisted, he committed the offence of an attempt to take the life of P.W.2 wrongfully restraining her in the very premises and after inflicting injury he locked the house and came out from the house. The learned counsel contend that the Trial Court taken note of the evidence of P.W.1 and P.W.2 and the statement recorded in the presence of Tahsildar P.W.15 and

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the material evidence of P.W.23 doctor who gave the evidence with regard to the nature of injuries and it was a cruel act and the injuries are grievous in nature and hence it does not require interference of this Court.

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Having heard the learned counsel for the appellant

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and the learned High Court Government Pleader appearing for the respondent State and considering the material available on record, particularly both oral and documentary evidence placed on record, the points that arise for the consideration of this Court are:

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(i) Whether the Trial Court committed an error in convicting the accused for the offence punishable under Section 307 of IPC and other offences including the special enactment and whether it requires interference of this Court?

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(ii) What order?

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Having heard the learned counsel for the appellant

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and the learned High Court Government Pleader, this Court has to re-analyze the material available on record. The Court has to look into the evidence available on record, particularly analyze the evidence of P.W.2. The incident was taken place

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in the house of the victim and the fact that the accused went

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near the house of the complainant/victim and caused the injuries and the wound certificate at Ex.P.16 is marked. The only defence taken in the cross-examination of the witnesses is that suspecting that his wife P.W.2 had illicit connection with the accused, he himself stabbed P.W.2 and the said suggestion was denied by P.W.1 and P.W.2 and an attempt was made to suggest that there was an illicit connection between the accused and P.W.2. The fact that the victim was working as a teacher and the accused was a student is not in dispute and the same is emerged during the course of evidence. It is important to note that the doctors have been examined as P.W.14 and P.W.23 and wound certificate is marked as Ex.P.16. Having perused Ex.P.16, it is clear that P.W.2 did sustain injuries and the same are grievous in nature. The only defence taken by the accused during the defence evidence is that there was an affair between both of them and the victim P.W.2 used to call him and on the call made by P.W.2 only he went to the house, but he was falsely implicated and he also placed the document of Ex.D.1 before the Trial Court that the victim only wrote the said letter and the same was categorically denied by P.W.2 during the course

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of evidence. With regard to the defence is concerned, nothing is elicited during the cross-examination of P.W.1 and P.W.2 and the material witnesses are P.W.15 Tahsildar in whose presence the statement of victim was recorded.

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It is important to note that Ex.P.16 wound certificate clearly discloses the nature of injuries sustained by P.W.2. P.W.23 doctor categorically deposes the nature of injuries and also inflicting injuries mercilessly all over the body, on the chest as well as back of the chest and also other organs. In the defence evidence nothing is stated with regard to the incident is concerned and also not denied the very incident of assaulting her with knife M.O.4. The FSL report Ex.P.17 confirms the blood stains and positive report and when the spot mahazar was conducted, blood stains found at the spot were also seized and the same was sent to the FSL. Having considered the material on record, the Trial Court also taken note of the motive for doing criminal act and also it was observed that at the most it attracts Section 326 of IPC and the same was discussed by the Trial Court in paragraph No.65. Here is a case of inflicting injury on the vital part of the body i.e., stomach and causing of serious injury considering the evidence of P.W.23. When the injuries are

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inflicted on the vital part of the stomach, the same was with an intention to take away the life. The Court has to take note of the conduct of the accused that after inflicting injury he wrongfully restrained the victim locking her in the house with an intention that she should not take treatment immediately and thereafter only she was rescued when she made call to her husband P.W.1 and the same was spoken by P.W.1 that he immediately sent the message to the neighbor and the neighbhour went to the spot. All these materials were taken note of by the Trial Court.

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It is important to note that the Trial Court also taken note of that the victim belongs to a particular community i.e., Adi Karnataka and the same is not disputed by the defence during the course of cross-examination. The caste certificate is also marked as Ex.P.8. The caste certificate of the accused is marked as Ex.P.9. When such material is considered by the Trial Court, invoking of SC/ST Act by the Trial Court is not erroneous and hence, I do not find any error committed by the Trial Court in appreciating the victim evidence, medical evidence and also the evidence of the neighbour who supported the case of the prosecution who went to the spot on the information given by P.W.1 since

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P.W.1 was not at the spot and he was outside. P.W.15 Tahsildar also spoken about recording the statement. P.W.14 consulting surgeon also speaks about the nature of injuries. P.W.23 doctor speaks about the nature of injuries that too grievous injuries sustained by the victim. No grounds are made out to interfere with the findings of the Trial Court and the order impugned does not require any interference. Hence, I answer the point in the negative.

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With regard to the sentence is concerned, the learned counsel for the appellant would contend that the appellant was in custody for a period of 2½ years and he voluntarily surrendered before the Court immediately after the incident. The Trial Court having taken note of the nature of injuries and the circumstances under which the incident was taken place, wound certificate Ex.P.16 which reveals with regard to the grievous injuries that too injuries caused on the vital part of the victim on the stomach and also considering the medical evidence on record, imposed the sentence of five years with fine of Rs.15,000/- for the offence punishable under Section 307 of IPC and for other offences, only Rs.1,000/- was imposed. Having taken note of the sentence, the same commensurate with the nature of injuries sustained

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by the victim P.W.2 and the same is not exorbitant having taken note of the factual aspects of the case, particularly considering the nature of injuries in terms of Ex.P.16 and also

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the medical evidence spoken by P.W.14 and P.W.23 and hence it is not a case for even interference with the sentence is concerned.

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Point No.(ii):

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In view of the discussions made above, I pass the

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following:

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ORDER

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(i) The appeal is dismissed .

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(ii) The judgment of conviction and sentence for the offences invoked against the accused is confirmed. However, the appellant is entitled for set off under Section 428 of Cr.P.C.

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Sd/(H.P.SANDESH) JUDGE

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RHS,MD

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List No.: 1 Sl No.: 55

B.N.Umesha @ Umesh Poojari v. the State of Karnataka

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B.N.Umesha @ Umesh Poojari v. the State of Karnataka

Case brief

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