1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 27*" DAY OF JUNE, 2008 BEFORE THE HONELE MRJUSTICE JAWAD RAHIM CRIMINAL APPEAL NO.:861/2003 BETWEEN: GUDUSAB HUSENSAB HUBBALLI' @ NA DDIMU'L:,'A ' AGED ABOUT 38 YEARS, A 1. A R/O MULGUND CHMAN PETH, TQ AND DIST : GADAG » A ' ._ APPELTANT (BY SR1. CHANDRASHEKAR"P,P"ATIL, ADV. '3, -- ' AND : STATE OF KARNATAKA E' BVY"C'P1"O.Ef.GAi5?A'G RURAL CiFiC'LE R'EPRESENT'ED._E3Y _ . STATE _PUE:~'LIC.'«.PROS_EC|,II;O R, HIGNcO.URT._EUTL:)IN--r5,' BANGALORE. -_ » _ - RESPONDENT
‘5:,(E3Y’ SR1. B. E3’A.E_..A§§RISHNA,ADv.,)
‘cRL.A – T-<I_LE.O U/S. 374(2) cR.P.c. AGAINST THE
JU.D'G.EME'NT;-.OT;,5.11.2003 PASSED BY THE P.O., FAST TRACK
COURT, GA,D'A<3,T IN S.C.NO.3/Oi CONVICTING THE APPELLANT/
ACCU'SEDf Noii FOR THE OFFENCE P/U/S 307 OF IPC AND
'v.,SENTEN.r:1Nc3 HIM TO UNDERGO R.I FOR THREE YEARS AND
ALSO TOPAY A FINE OF RS.10,000/~ I.D., OF PAYMENT OF FINE
fAMOU–NT, FURTHER UNDERGO R.I FOR SIX MONTHS.
"This appeai coming on for hearing this day, the Court
Ii' .d_eiivered the foiiowing:
5/’I
3UDGMENT
The convicted accused is in appeal against the
judgement in S.C. No.3/2001 on the file of 3udt_j:e,:.:”L:’Fsa’s.t
Track Court, Gadag, passed on O5~11~20i33,
appellant for the offence punishableurider ]3d7–‘.}1’PC;..& it
2. The material facts on :4t.he”.Vldasi6.’.’I3.f”whicVl*iT’the’~.VV
trial was tried and convicted
One Giriyappa , was”””r’e’siding I in
Holalpur village alonga’ and sister ~.
Gangawwa: his wife. His sister
Gangawwa was married but due to some
dispute devse’rte’c’.VA’lieirrnyushband and had been living with
herflijiother an’d..§§iriyai:ipa. She was vending milk and thus
innlilcodntavct with accused No.1 ~ Gudusab Husensab
A”‘:-lu-b_l3al’i’i4:’@.,»V__Na:’ddimu|la. It is alleged that both developed
illicit in’ti’n’-:a’cy and continued it for quite some time.
.yGiriyap’p”a and other family members learnt of such carnal
e.L:telati’onship and advised Gangawwa (Accused No.2) to
-desist from such indulgence but she continued. In the
U
rushed to the spot and nursed her husband Giriyappa
giving water and then they arranged Horse cart (Tanga)
and shifted him to the hospital, after conveying messa_ge_Vto
the Mulagund Police Station. Message was
PW12 – Fakkirappa Adiveppa Iti, ASI,
and on the way to the spot, he saw tanga app’roachf.ri»g:_”arid?
found G iriyappa and Laxmamrna the S.
injured in a tempo and brougvhtiithe inV};u~reVd’to irxflulagund
Hospital, but the doictor was §nAo’t~«._V_;ayia’:«!able. if tience, he
shifted the injured to the:l”_GVoi/ernmenlt’lifiolspital in Gadag
and informecif inciiderit “to “–~—it)urgappa Basappa
Doddaihani, wvhvo.’*w:as_’i’nchva_rge of Shirahatti Police Station
and he re=eregisté’red.Vtn-eiigaése in Cr. No. 40/99 and handed
ove,r_§”‘ti*.e ca”se_Jl*or: further investigation to PW11-
it lmalla’-ppa.
5., ~”Viiinl::the meanwhile, PW7, visited the hospital at
“v..,Gadag~_’é:ind questioned Laxmawwa, who gave her
“s”_st,ate’rnent about the occurrence. He obtained her thump
impression and registered a case for the offence punishable
under Section 504, 114, 307 r/w 34 IPC, which was
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submitted to the jurisdictional Magistrate on O3-O7~1999.
The injured was then shifted to KIMS Hospital at Hubli for
better treatment and his statement was also recorded.-.___
6. During investigation, the Investigatin;g:’fd”fjii§ft-2r
learnt the incident was witnesses by Hanun*j:a’ntha:pba
PW8, Kamalawwa — PW10, Mohané.-mad.gYu–nis’_.;§f.W.li’3..and–.A if
Jakirhusen Chamansab Walikar — firliiho”=.+ijes-..’§__g
on the land. Their statement ingjci”i.ctedA’the ‘and 2. ”
The medical officer exa.mineds.the..’victim and ‘is–si.i.e’d wound
certificate and described’t’h_e- irijuiriies as’.%_sirnpsle I n nature.
._ Bavsledonl th”eg::irri_ate’rial so collected the charge
sheet was-filed a’i1d””lVear:ried’jurisdictional Magistrate after
taking cognizancesicomrnitted the accused to stand for trial
before Sessions Court. During trial before the learned
l§u_dg.e«,A Court, the prosecution examined in all 15
witn”esse’san’d placed reliance on 15 documents and Mos ..
the basis of evidence brought on record the learned
j__’J”tidge: convicted the accused No.1 for offence punishable
if ‘under Section 307 IPC and sentenced him to undergo RI
‘ ..
V’ . ” E!
‘ H. 2,1
for a period of 3 years and fine. The case against accused
No.2 was split up. Aggrieved by the said order accused
No.1 is in appeal.
8. The {earned counsel Sri Chandrasheig,aVrV’»:i4l§atil,
assailed the impugned judgement
learned trial judge has based his
interested testimony of PW2 to
Laxmawwa, the Complainant’
investigation had commence_d_l:’%w’as_» not ..Va_l’l\’:re ‘and her
statement had remaivriedf’ _uriV:prorv.ed-.,_’grSecondiyr, the wouid
contend llll gist/en”‘V’V:by Laxmawwa reveals
differen’t.\re«rsion:o.l9:_the’«incident tha–n what is mentioned in
the chargelshe’et..:V’V-_ A it it
to the learned counsel for the
t4h’e::vcomplainant has stated that Kandii (sickle)
of second accused — Gangawwa which the
‘*.,first acc’usVed Gudusab took and assautted Giriyappa.
Giriyappa’s statement is that he was holding the
l sickle. Secondly, he would contend that in the complaint
V. wa.s4_noi3″l3y A3. but was by Gangawwa the second accused
imam the victim had skapped. In retaliation, she might
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there is a statement of the deceased complainant that the
victim Giriyappa had siapped second accused Gangawwa
having seen her in compromising position
accused. This is aiso absent in the state’;r’nentA_.:’ol:’!the
comoiainant. Lastly he contends:’tha:t”
the accused for offence unde.r_Sect’i’on”‘–3l.07
totally unsustainable as the sufferedr
was described by thevdo~c_tor_«’as’V_ natu’rei.”l He also
contends that the staterne-nt ‘ulinrlvitnes’SAéi§1’l».l§.self shows that
the accused injury on victim if
his intention sickle as aileged is the
objectlof is used to hit at a person, the
injuries woluicl: would be very severe. In the
instant case,’ suffered by Giriyapoa are described
in nature and therefore, the accused
1″co”u:l.gi«A teen’ convicted for offence under Section
of’i’PC. Aitematively it is urged._that the assault
have hit him to save her, but the complainant has fatseiy
implicated the appellant accused.
10. Per contra, the learned Government Pleader
Sri.Balakrishna would contend that the evidence on ‘record
ciearly estabtished is that it is At who has cAa_us:ed”,j”th’e
injury to the person of the victim and as
only identified him but described h-i’s””o’ve.rt tin-dlinx’gg
recorded by the Trial Court is Vjustif»i’e.c_l.’-U”
11. I have heard bothj”sidesV. a–n_d’VV.e_”>A;aVmined’V the V
material on record for,r’e:_appraisal,..of evjdence.”‘
= ..i’n”-d_.i’S–pute that A2 – Gangawwa is
younger sister,,ot” the victim. She was married
but.~d_evse~rted he’-rlhusband and was living along with her
»m’o–ther..:_in Balehosur for some time and then, at Mulgund
occurred. The report regarding incident
-V was4″gzivven”‘by Shantawwa wife of Giriyappa. However,
‘:g.(3ii*i-»,r,_apvf:3″a has atso been examined by the 1.0. in which he
— had directty alleged that A1 had stabbed him. The incident
Wis said to have occurred on the land bearing Sy. N0.108
-‘Q7/.
5 /
situate in Holialapur owned by the accused. On 2.7.99 at
3.00 p.m., when he had gone to his land and while
working, he noticed A2 and A3 were indulging in physical
intimacy. He approached them and questioned hVis7si’ster
the second accused and reprimanded the fir_st””a.c’;:u:sVecl.’wy
This has been clearly spoken to by the
and I find no reason to disbeiieve tAhat:.stafte’mént’.–.
13. About the assault,,the \«/ictim hasgiyreniia clear
narrative account that A1 w’as.._iii’nf_uriated’:and snatched
kodii from his hand an’d…_s’t–abt.ied§.him, ~.H’eysuffered injury to
his ne’cik”‘iian..dVf,_fei:i?;f fTh:e inEid’érit is noticed by PW–8
Hanuma-nthappa;”‘owa’er_:i”-.o:f..- the adjoining land. His
statement iw~ou’ld. cshoiiv that he saw A1 and A2 on the date
“‘>._of inczidlent aVt”ti1’e”iand of the victim and after hearing
he rushed there and found Giriyappa had
fallen land with injury on his neck and was
“V..ybleedi’n_g.’:. He tied towel around his neck to stop bleeding
“:T”_a«n:d”shifted him to Mulgund hospital in a tanga. But as the
doctor was not availabie in the hospital, he was shifted to
Gadag where he was examined by doctor Satyabodha –
I \ (N
, 5 – g
e
:§\”:”¥£-” ‘-
. .:desc.ribed those injuries as sufficient in the normal course
_’ ofiiature to cause death. The victim has since been
-discharged after treatment and his fife appears to be out of
PW–9 on 3.7.99. Since the neck of the victim was cut, tube
was inserted for respiration and admitted for further
treatment. Ex.P1€) is the case–sheet. The evidence of PW–
1 — Dr.R.N. Patil and doctor Satyabodha — PW-9 le:a.t_{e.s’i*io
doubt that the injured was first examined
8.40 pm. then, he was shifted- _to ” 2
Following injuries are found on his:”Qers_orr.’ 4′ 1 l l V A
“1. Cut iacerated injur*/hir1.easurivnr;:; 3’fxr:.jh’i2;ji$s.-xVV
1 V2″ insize just below carrtiilvajgefiiat
the front aspect Trachea
and cut and V
Cutlilac-eraitedl’inju–ry* measuring 2″ x 1 1/2 ”
about a-bove injury above cricoid
” _{ ‘ caurti|age’.”._u V I
have no doubt stated the injuries
ares-imgole nature. But doctor Satyabodha -~ Pi/V-9 has
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danger but subsequent to trial, it appears, he did not
survive and is now dead.
15. The circumstances in which the offence has
been committed reveals that Al and A2 had indu,lV§ie:dr._Vin
carnal reiation which had upset the
including Giriyappa. On 2.7.99, he
physical intimacy and thus approac,hed..théEn5–._ is
that he might have acted,»r’a-g__gressive’ly at”u’tije,_sec;onld
accused who is his sister andV’vl’i’acjainst i’!\’i–.::”lE:’>utv’fthe fact
remains that he has su;.fif”e–red–‘_VAinjV.ury..§~s,i”r:oted above which
in the d:ojctors».,:c’ould’._”b’écaused by kandli seized
throughinvestigatio_n,”~E{rt:.rr1.«-such material evidence, it is
clearthat th-edvictirnA’had”lVnot indulged in act of vioience
;_the._accusedwi”and 2 but it is Al who appears to
injury on his neck. Neck, undoubtedly,
alvital paértofeithe body and injury on the neck could have
‘r__been f’at’a’l. Evidence of doctor Satyabodha — PW~9 would
A “:,sh,ow”«_«that because of damage to trechea and tube was
inserted to enable breathing. From such finding it is
established that the injury if not treated, could have
u: x
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resulted in death of the victim. The statement of the
injured therefore, establishes nexus between the overt
acts of A1 and sufference of injuries by the victim. Offence
is therefore, established and hence act of the accuse’d._Vin
causing injuries comes within the ambit of Sec’=;’it>r1~«’.3Vi.1:’.(V’i. _
the IPC only. The Trial Court has rightly
the said charge and for want .’
This is an unfortunate case w»he._re the.yi’ctim to’; put
some reason in the mind of A1 A2 but –s.uff’ered injuries
at their hands.
brought to my notice
by the learned aVp’p”e’:.l,a’r1«t.ls’~.r::o–unsel regarding possession of
kandii at tide tyimeyflof Ai’ncVi’d’ent is not of such importance as
‘3″«_to the statement made by the victim himself that
had caused injury to him. The second
inconhsistency is only as to who was in possession of kandli.
”._The complainant in her report stated that kandli was in the
\°i:and’s of second accused Gangawwa whereas, victim
claims that kandii was in the hands of Gangawwa which A1
took and stabbed him. Be that as it may, from whom
,.
1′ ;’\_
L, .~
7 Kay
Z3
kandli was procured by the accused is not of such
importance as to render the evidence relating to assault by
A1 nugatory. Hence, I discount this contention.
:17. The second contention of the |earn_e.d_’44’co’usn’_:::el3
is, because the complainant is no more and’ after V’
death, the prosecution is using in e§vild’eiic.e’-Punder:”p.r_o.vi’si’on”1
of Section 32 of the Evidence Act.
18. The last contention..iyL:.6?ithe”learned’; for V
the appellant is that the inc.iidentf’oVc”eurred«in l-iollalapur
which comes under thelterritoiriali|o_c:ai– of Shirahatti
Police S__tat_ionxVVa’ndV..t:hrat”‘i~nv’estig-ation was done by Mulgund
Police Statvionivitiatéslyltheprosecution must also fail for the
following.reaso’ii.:_{V I
Basappa Dodarnani — PW–7 was Assistant
Police working at Mulgund Police Station
as on He was incharge of Shirahatti Police Station.
J:/lit .3__.00’p.:m., he received FIR in Crime No.47/99 on the file
‘fviulgund Police Station. He re–registered the same in
it -Crime No.40/99 of Shirahatti Police Station vide Ex.P7 and
1%
forwarded the same to the jurisdictional Magistrate.
Therefore, it is clear that though the case was registered in
Mulgund Police Station in Crime No.47/99. It has been
referred to Shirahatti Police Station for investigatVio’n_:’a.nd
he being the incharge SHO of that Statiori””‘hfas._:’raft’*_
registered the case in Crime No.40/99.
has been filed by the police in ShirahattigPol’i–ce4.Stati*o’n.tg__’ando
not in Mulgund Police Station; .4__TheA’S_iviO of th”ejVS:hi.rai§;atti
Police Station submitted repo”it_ii’toV Circl–e_VV:i:hsp:ector of
Police, Gadag Rural Po_l’i’ce ..Sta§tio’n.__[This was because
Shirahatti and Mulgund o’ne’C’i:rc~i’e and i.e., the
CPI of Gadag i?§u”ra:~i._yC’ilrcle,:T”%lo’l|alapur and Mulgund the two
taluks are’aiJndVer”* Rural Circle and the Circle
Inspector. of thatgilocali justification took up investigation
the same. It is he who has filed the
cha’rge~s’lié_e_t_.~.l;”~’i”herefoore, mere registration of case in
Mulg”tend–..’:’Police Station will not be impediment for
,n:Shi.ra’hatt’i. Police Station to investigate the case. Charge~
‘s’hVeet’is filed by the CPI who was incharge of both these
T “Police Stations. ‘There is no infirmity legal or otherwise in
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registration of the case and conducting of the
investigation. Thus, this ground also must fail.
19. In the result, I find that the evidence on record
tendered by PW–2 Giriyappa Yaliappa Bhangi they
the assauit is fuily supported by the evidencejofidoct’ors’_4’i ”
Dr.R.N. Patii — PW–1 and Dr. Saty;:ib’ho–dh ‘ywhic.h~ is; it
a ciincher about overt acts of A1 in’
person of Giriyappa by usingVaingobject.”whichiyvas’~–sh’a’r;$j. If i’
the accused had no intentioni-~to:..”gigi|i”‘*t,he viictimgcertainiy
the attack wouid have ubeer: on .ii’o:the:riivV:uir1:y’itai parts of the
body. {Neck thesbayrt of the body for attack
and accused VsucVceeded.._:ii”n».causing injury in such speed
that trecheia’~w’as_CutA”van’d’Vdoctors had to insert tube for
“”w._eas’in.g :jegsp~i.ration.”””T’hVe victim was saved by chance and
i’ circumstances, the charge against the
d”~«..’*..accuse’d_ffor offence under Section 307 of the IPC was
framed and the finding recorded thereon by the
Trial Court is after appreciating evidence which is in the
V sac*x_f”
16
correct perspective. Hence, the order regarding convi–ction
of the accused for offence under Section 307
needs no interference and I confirm the same.
21. As regards the order of sentences is4r_concer.n’ed, f
it is submitted that the Courtgchas bééeni’harshiviV’rnrVV’..é:yir.ard;in’.g
three years imprisonment to a’;5o.ei’:.ant fine of
Rs.10,000/–. I do not harsh.
In the resuit, the same’iihe.’«’appeai of the
apileliant – judgement in
S.C. Judge, Gadag, is
confirméd. H A.
sd/-
FUDGE