Rangaswamy Vs the State of Karnataka

THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 18.07.2013 PASSED BY THE V ADDL. DIST. AND SESSIONS JUDGE, SIT AT TIPUR IN S.C.NO.248/2012 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 307 AND 326 OF IPC. THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I. FOR 7 YEARS AND PAY FINE OF RS.25,000/-, IN DEFAULT OF PAYMENT OF FINE TO UNDERGO S.I. FOR FURTHER PERIOD OF 3 MONTHS FOR THE OFFENCE P/U/S 307 OF IPC. THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I. FOR 5 YEARS AND PAY FINE OF RS.15,000/-, IN DEFAULT OF PAYMENT OF FINE TO UNDERGO S.I. FOR FURTHER PERIOD OF 2 MONTHS FOR

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THE OFFENCE P/U/S 326 OF IPC. ALL THE SENTENCES SHALL RUN CONCURRENLTY. THE APPELLANT/ACCUSED PRAYS THAT HE BE ACQUITTED.

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THIS CRL.A., COMING ON FOR FURTHER 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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The accused in SC.No.248/2012 on the file of the learned V Additional District and Sessions Judge at Tiptur, is impugning the judgment of conviction and order of sentence dated 18.07.2013, convicting him for the offences punishable under Sections 307 and 326 of Indian Penal Code (for short, "the I.P.C."), and sentencing to undergo rigorous imprisonment for a period of seven years, and to pay fine of Rs.25,000/- for the offence punishable under Section 307 of IPC; and to undergo rigorous imprisonment for a period of five years and to pay fine of Rs.15,000/- for the offence punishable under Section 326 of IPC, with default sentences.

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Brief facts of the case as made out by the prosecution

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are that, on 11.06.2012 at 2.30 p.m. the accused was having ill-will against the injured-PW.4, voluntarily assaulted him with the sickle, with an intention to cause his death, caused grievous

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injuries, abused him in filthy language, and provoked the injured to break public peace, and thereby committed the offences punishable under Sections 307, 326 and 504 of IPC. On the basis of first information lodged by PW.2, FIR came to be registered. The investigation was undertaken and final report came to be filed.

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The learned Magistrate took cognizance of the offence and committed the matter to the Sessions Court. The accused appeared before the Trial Court, pleaded not guilty and claimed to be tried. The prosecution has examined PWs.1 to 9, got marked Exs.P1 to 15 and identified MOs.1 to 5 in support of its contention. The accused has denied all the incriminating materials available on record, but has not chosen to lead any evidence in support of his defence. However, he got marked Ex.D1 during cross-examination of PW.5. The Trial Court, after taking into consideration all these materials on record, came to the conclusion that the prosecution is successful in proving the guilt of the accused for the offences punishable under Sections 307 and 326 of IPC and accordingly convicted and sentenced

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the accused as stated above. Being aggrieved by the same, the accused is before this Court.

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Heard Sri. Onkar K.B., learned counsel for the appellant-accused and Smt.Rashmi Jadhav, learned Additional SPP for the respondent-State. Perused the materials on record including the Trial Court records.

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In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration are as under:

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Whether the appellant has made out any grounds 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 the contention of the prosecution that, the accused had assaulted PW.4 with an intention to cause his death, caused grievous injuries and committed the offences punishable under Sections 307 and 326 of IPC.

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PW.2 is the eyewitness-informant, who lodged the first information as per Ex.P3. In Ex.P3, the informant being the eyewitness has given clear version of the overt act committed by the accused in assaulting the injured-PW.4. The first information came to be registered immediately after the incident. The materials on record disclose that, immediately after the incident, the injured was taken to the General Hospital, where PW.1 has examined him. He has issued wound certificate as per Ex.P1, which discloses that he had sustained two grievous injuries, which are lacerated wounds over the nose. PW.1 who examined the injured at the initial stage has deposed before the Court that, the injuries sustained by the injured were grievous in nature. He was cross-examined by the learned counsel for the accused. But nothing has been elicited from him to disbelieve his version.

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Initially the injured was treated in the General Hospital at Tiptur, and later brought to the Mallige Hospital. PW.7 is the Doctor who treated the injured-PW.4 when he was admitted to Mallige Hospital as an inpatient. Ex.P2 is the discharge summary issued by Mallige Hospital. According to

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which, the injured was admitted to the Hospital on 11.06.2012 and was discharged on 20.06.2012. The case sheet as per Ex.P7 is produced to substantiate the case that, the injured was treated as an inpatient. Exs.P1 and 2 disclose that the injured was admitted to the Hospital with the history of assault. This witness was also cross-examined at length by the learned counsel for the appellant, but nothing has been elicited from him to disbelieve his version. Learned counsel for the appellant contends that during cross-examination of PW.1, it is elicited that the injured has taken treatment even in Mallige Hospital as outpatient. It is a stray sentence found in the evidence of the witness. Therefore, his version is to be believed. But the witness has spoken about Exs.P2 and 7. When such clinching materials are produced before the Court and PW.7 has deposed before the Court about the nature of injuries, treatment and duration of treatment, the contention of the learned counsel for the appellant that injured had never taken treatment as an inpatient cannot be accepted.

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PW.5 is the eyewitness to the incident. He states about the overt act committed by the accused and the weapon

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used in the commission of the offence. PW.4 is the injured and also an eyewitness to the incident and he is also witness to the spot mahazar-Ex.P4. PWs.2 to 5 being eyewitnesses have consistently deposed regarding the incident that had occurred. Nothing has been elicited from them during cross-examination.

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Ex.P4 is the spot mahazar, which was drawn at the spot in the presence of PW.5 and, MOs.1 to 5 are sickle, white shirt, lungi, sample mud and blood stained mud which were recovered under the spot mahazar. As per the Scientific Officer, who issued Ex.P15-the FSL report, the mud which was collected from the spot, the shirt and lungi worn by the injuredeyewitness i.e. MOs.1 to 5 were stained with blood. The Scientific Officer is examined as PW.9 who supports the contention of the prosecution in that regard.

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PW.6 is the PSI, who has registered the FIR and recorded the statements of the witnesses, and PW.8 is the PSI, who filed the final report. All these witnesses have supported the case of the prosecution and no glaring inconsistency or material contradictions were elicited during the crossexamination.

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It is pertinent to note that the tenor of crossexamination of the prosecution witnesses discloses that, the accused is not disputing the incident. On the other hand, the accused admits that there was a fight. The second contention taken by the learned counsel for the appellant is that there was no intention to cause the death of the deceased, but the weapon used by the accused being the sickle suggests such intention, which is to be inferred or gathered from the circumstances of the case. In view of the version of PWs.2 to 5 who are the eyewitnesses including the injured eyewitness who speak about the accused and the weapons used for the commission of the offence, I do not find any reason to disbelieve the version of the prosecution witnesses. Therefore, I am of the opinion that the accused is liable for conviction.

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I have gone through the impugned judgment of conviction passed by the Trial Court. It has taken into consideration all these materials on record and arrived at a right conclusion in convicting the accused. I do not find any reason to interfere with the same. But it has proceeded to sentence the accused to undergo rigorous imprisonment for a

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period of seven years with fine of Rs.25,000/- for the offence punishable under Section 307 of IPC and to undergo rigorous imprisonment for a period of five years and to pay fine of Rs.15,000/- for the offence punishable under Section 326 of IPC, with default sentences.

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Sections 307 and 326 of IPC prescribe the maximum sentence that could be imposed on the accused on his conviction with fine. The nature of allegations, and the materials that are placed before the Court, do not call for imposition of maximum sentence. Considering these facts and circumstances, I am of the opinion that, reasonable sentence may be imposed on the accused for the above offences. Accordingly, I answer the above point 'partly in the 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 18.07.2013 passed in SC.No.248/2012 on the file of the learned V Additional District and Sessions Judge, Tiptur, is hereby confirmed.

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iii) The order of sentence imposed by the Trial Court is modified as under:

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(a) The appellant-accused is sentenced to undergo rigorous imprisonment for a period of one year, and to pay fine of Rs.25,000/-. In default of payment of fine, he shall undergo simple imprisonment for a period of three months for the offence punishable under Section 307 of IPC.

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(b) He is sentenced to undergo rigorous imprisonment for a period of six months and to pay fine of Rs.15,000/-. In default of payment of fine, he shall undergo simple imprisonment for a period of two months for the offence punishable under Section 326 of IPC.

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(iii) The accused is entitled for set off for the period he has already undergone imprisonment.

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(iv) The other portions of the order of sentence passed by the Trial Court are upheld.

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(v) The concerned Jail Authority is directed to verify the length of the imprisonment suffered by the accused and if in case, he has already served the sentence, and if fine amount is deposited to release the appellant forthwith, if he is not required to be detained in judicial custody in any other case.

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