1
IN THE HIGH COURT OF KARNATAKA AT BANGAQQRE
DATED THIS THE 29TH DAY OF NOVEMBER.' "
BEFORE
THE HONBLE MR_JU:;§nc:::N.A.NA;\::§A_ _
CRIMINPJJ APPEAL NoA.%:;11o/2oo'4{A' " ' V
BE'lWEEN: ' .
L.RaVi
S/o Late Linga Shettyv
Aged about 24 Years j ;
Occ 2 Milk Vendor
R/at No.3607. Pulakeshi Road V __ V'
Thilaknagar. Msiieli Mohallaw
Mysore. ...APPELLANT
{By .fv'3fi.'s"ar;_~;.s.i},r.vA. 153351. _Ad.§}oca:e_'{AbVsent))
AND}. 9 V I
The Staie"Qf Karnzitziligi
By its State Public Prosecutor
V. '_ Vl"1'igl}.vConrt I§3uiidi.iigs.;
' Bangalore :7 1. ...RESPONDEN'f'
_.(By-- Majage, HCGP}
efppeal is filed under section 374(2) Cr.P.C.. against
the jL--§dge:nent. dated 01.03.2004 passed by the Presiding Officer.
Fast Track Court~ll. Mysore in S.C.No.355/1.999, convicting the
. ;appella.nt/ accused for an offence punishable under section 307
IPC and sentencing him to undergo 8.1. for 5 Years and also to
9' pay 21 fine of Rs.5.000/~. in default to undergo SI. for one year.
9 This appeal coming on for final lieaniig this day. the Court'
delivered the following:
J U D G M E N T
The appellant (hereinafter referred’
accused] was tried, convicted and sent.enc€.:%F
punishable under Section 307 l.P’;C..,in.
the file of Fast Tract Cou1″t–II. l\:/Iysoreil
filed this appeal.
2. The learned’¢_couf:n’sel l”appellant–accused is
absent. I have heard the Advocate for
the respondent; pp *
ll In V view.” jjndgment of the Supreme Court,
reported in 357 [in the case of Dharam Pal &
Vs. Stritev–…Qf’ Uttar Pradesh}, I have perused the
‘ atreeoi-€ls’andrtake11 up the appeal for disposal on merits.
case of prosecution in brief is as follows:
a accused and PW.6 M Chandra are residents of
*Tila~k Nagar, Mysore and they are known to each other. Few
__§months prior to 19.3.99. PW.6 had lent a sum of Rs.l60/–
f\-‘- “~ fivwcéi.
9 3
to the accused. When PW.6 demanded the accused torepay
the money he was dodging PW6.
5. On 19.3.1999 at 2.30 p.m..
going along with PW. 10 9 Rai/iku:rriard:amVj
in Tilaknagar Park they metthe
the accused to repay a sum “‘i’h’r3 goth
wild and stabbed onthfie a knife.
When PW6 raised hue ran away from
the place. PVtf5+;.y:l(:}.anicl ll_:’shifted_fPW6j’to hospital and he
was :’adrni–tted5′.Vin!t’K7R_l§o.sp–ital, Mysore. After receipt of
medicoh legal ‘report; ,.therinvestigating Officer visited the
HoA.’:’I3iit.a4l recorgiedlthevstatement of PW.6. On the same day,
«acctiséfi arrested. On the information volunteered by
:hii1’l’,x iiivestigating Officer recovered a knife. The
lnvestigatin*gA Officer seized blood stained clothes of PW6;
AA recorded the statements of witnesses; sent the incriminating
laiftiicles to Forensic Science Laboratory and after completing
__;the investigation formalities filed charge sheet arj inst the
accused. ‘{‘V~ x -£”v~-‘x’3é’i~–‘
6. During trial, PW’s..1 to 12 were examined,
documents Ex.P1 to P10 were marked and mate1″ial”
Viz blood stained knife (l\/1.0.1} and blood stainedv
PW.6 were marked.
7. The defence of accused was .one of total ” 9
prosecution has relied on oral ievidence. medical
evidence and recovery_of..knifl*e at tl1e.iristance of accused.
PW.6 was the injnred vlf1_tn§ess;..Vl§3’»7lZ_;.’S_has deposed that
during Sh1Varat;l:iri feistivalegof had lent a sum of
Rs.1:€g0/;—told?’-‘t.,he_{lacciised.- J On 19.3.1999 ie., on the
followinigldaylof PW6 demanded accused to
repay the lo’an,”accosed became Wild and stabbed on the
PW.6 With a knife. The incident of assault
._ ‘o’cco1*redV.bV’in::Tilaknagar Park. PW.6 was shifted by PW’s10
and 1.91 andhe was admitted in the K.R.Hospital. The Police
_ lnsgziector came and recorded his statement. PW.6
it underwent operation in KR. Hospital.
‘L. 0″\.’u….(Q3-),,__ . ‘
8. During cross~examination, PW.6 has deni-ed the
suggestion that accused did not assault him.
examination of PW6, it was specifically
that at the time of incident, PW€;’~h’eld.. «the! “a¢’¢1lg¢ci
and pushed him. PW.6 has denied
been suggested to PW.6 thatthe for
failure of accused to ijepay th.e..llo’an”‘a.;fnount’,-l?W6i§had taken
away the bicycle of enmity between
PW.6 and t.he”a_ccuse’d;”‘-l?W§’6_l’h_as.ljdelnield the suggestion
thatpthere illfwill”betweenthe accused and PW.6 due to
rnonito1’y._ transactioil he lodged a false complaint.
Thus, from t’l1ept’enors cdfbcrosswexamination of PW.6, we find
§_._oacc_usedl” admitted that there was monitory
V transvactiovnrbetween the accused and PW.6.
being the injured witness would be least
disposed’ to falsely implicate the accused leaving aside the
llculprit. The incident of assault. took placed in a broad day
light. within the jurisdictions of Tilaknagar PS. There was
no identification crisis. The first information wasfilodged
soon after the occurrence.
9. PW. 10 — Ravikumar and PW. 1} ~_Ki*ish’in,a”who were..
in the company of PW.6 at the time not
supported the case of prosecution. A. l
10. PW.1O –«» afriend PW.6 has
deposed;– that on thellldatelof afternoon,
when he C_El.I.I:1E.,_ to ].3’arl¥;,i.L:’:$le\llreral people had
gathelreld”etn}vf1: on umbilical region
andlhell Autorickshaw to K.R.Hospital,
Mysorel.l”PW’. “treated as a hostile witness. During
vc_r}osssexaminati.on.,..«PWlO has admitted that, at the time of
V i1iciClventj_”vi.tlie_ accused was wearing trousers. PWlO has
that he had seen PW6–injured. Therefore,
ei/idence of PW1O that PW6 had suffered injury on umbilical
if region and he was shifted to the hospital is consistent with
the case of prosecution.
»1wmw£h,
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1}. PW. 1 1. another eyewitness has not supported the
case of prosecution. PW11 has deposed that
during afternoon, he had seen accused V’
Tilaknagar Park. PW11 was trcated”as “a h’ostiieVxyi’tnes’s.
During cross-exarnination, PW17}. “has not.A” given’ “~anyu
incriminating evidence against Vthe accused… _’.=’I’i’iereVi*ore, the
evidence of PW.11 a.’oc.ut the”‘ti1::’¢ and p1ace”‘of”occurrence
and presence of PW6 !.’andV=’ia€:cuse–d_*».near the place of
12, g3tt’iit11e__:re1eVa_nt…time, PW.2 — Dr. C.P.Nanjaraj was
workingjas _Surgeon at K.R.I~Iospita1, Mysore.
P¥§f.2 ..has.d’ep_oSed that on 19.3.1999 at about 3.15 p.m.,
Chandru brought by CW4 to K.R.Hospital. On
PW6, PW2 found an incised Wound on
1/,/’
1:u_nbi__1ica;i.:’~:region with coils of intestine seen outside. PW.6
up was ‘given Tetanus injunction and PW.6 was admitted in
it ‘..VV’*»suArgica1 ward. Later, PW6 was operated by
PW. 9-D1’. Srinath. iv ‘
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13. PW.9 has deposedzm that he examined PW:..’6and
found an injury on the abdomen with
outside. PW6 had also swelling over the the it
same day, surgery was perforrnehdmto’ of
abdominal cavity was inspectedlL..’E–‘W9
intestines that had come ou’t’~w’ere heali._hy’-aiidkthellwoundld
was closed.
er
During cross–exarnination_.I * .o.1.V ‘ PW.9 certain
hypot.het.ica1.. ‘sugggestiions fared “‘rlI1ade,«Vf’in my considered
opinion _rnot’r.el’evant.’ to consider evidence of PW9.
The difect ievidence’ PW.6 is consistent with the
me’di’ca1 evidence’: given by PW’s.2 and 9. The evidence of
.jettyVfiitldfindsi__corroh-oration from the evidence of PW2 and
vPw;9.., n’
v.”v14;_”The evidence of Investigating Officer relates to
.A arrest’—of accused and recovery of a knife from the accused
it seizure of blood stained shirt of PW.6. He h 1
seized
the blood stained knife on the information volunteered by
the accused.
15. PW.8 who was then working as-oft. p
police has given evidence in proof of-‘arrests ot’.a*ec’use_d
seizure of blood stained knife -t_1_\/IO. it
16. The contents Science ./i.aboratory
would reveal that bloods_tain.ed :shi:rtV:l_(ML_’O,2} of PW6 and a
knife (M.O.lo).égweapfionflol_”p:assau;l’t._were.’ stained with blood.
The:’iVconten:fs {iii of ‘Serologist would reveal that
bloodstainsl foun.’d~ shirt were of B–group. Thus,
the direct;..ev”icien.ceV.o’f”PW6 finds support from the medical
of l5W2..-.Dr.C.P.Nanjaraj 8: PW9wDr.Srinath and
da}so”v..fro’§n.Ap.’i.he contents of report of Forensic Science
report. of Serologist. Therefore. I hold that
prosecution has proved that on 19.03.1999 at 2.30 p.m., in
* lithe afternoon near Tilaknagar Park in Mysore City, accused
assaulted I-‘W6 with a knife and caused injury to him.
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17’. The next point for consideration is:~
“Whether the acts committed by
would attract an offence punishable l *
section 307′ IPC?”
18. In order to bring hornEe.__g”u._il.t of»’a_.c.c’used”
offence punishable under section 307 xl1.3VC,lthehplrosecution’
has to prove if by such acts”ac/Q:use’d._had death
of PW6, he would have b_e’enc-g.’Ji.lty__po’f_an offence punishable
under sect_ion_302 toyestablish this fact.
pros.ecfitioriifyhashfto th”at””a”ccused was aware and he
had intention by such acts if he had caused
death of Vlvonldlhave been held guilty of an offence
under..section 302 IPC.
V decision reported in AIR 1965 SC 843 (in the
‘oase,__vof Prasad v. State of Bihar} at paragraph 7, the
in p_Supreine Court has held:–
“{7} Having said ail this we must point. out
that the burden is still upon the prosecution to
establish that the intention of the appellant in
i{\}. – i;/\/\~””C[I’\ 7
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causing the particular injury to Shankar Prasafl
was of any of the three kinds referred to
S300, Indian Penal Code. For, unless’
prosecution discharges the burdenHtheioffencleI
under 3307, I.P.C. cannot”po’ssiblj{ ‘
home to the appellantfg of
appellant’s mind has’ to bel”dvelduced»”lrrorn2
av
surrounding circumstances. . ..
In the case on._h’and.;l there._Vwas,no enmity between
accused and PW6. It” .not_ c’ase”i?\g’here accused was
Waiting to PVV6. ni’eeting;’..ofiI3W6 and accused at
2.3(l–,_p.r_n–., lVat”.Til_va%:naga;v.._Ear}: was accidental. The quarrel
betWeer1,lacCus’ed'”‘ began when PW6 demanded
accused to ‘repay loan. The tenor of cross-examination of
E’l’i;ifcu1d._._suggest that PW6 had scolded accused for not
. In fact. the incident of assault was preceded
by a _s’craml3le between accused and PW6. The accused had
I Tdealtxa solitary blow on the stomach of PW6 with a knife.
” -Thn.erefore, I am of considered opinion that. acts cornmltited
by accused do not attract an offence punishable under j
section 307 IPC.
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20. It is clear from the evidence Vo1’»._ri?W2~
Dr.C.P.Nanjaraj and PW9~Dr.Srinath but for
intervention, injury inflicted by accus~c–d..__’:woul:d«. izavet
endangered the life of PW6.
hospital on 19.03.£999, {he underwent
surgery, PW6 was discharglefihllon_u26iO3.lpl:9é§9..l:’fi’hereafi:er,V
PW6 was under pos’t;4o’pera.:_tiiie PW6 was
not able to follow his a period of 21
days after thefiate éf iiiicidentyiri”itheflcircumstances, acts
committed grievous hurt caused to PW6
falls ‘within , definition of section
IPC. it ‘i’he”accused had wielded a dangerous weapon
‘Lhold the accused guilty of an offence punishable
A ‘«u_n_de’r:’sec’ti.o-@326 IPC
Regiardiing Sentence»
2}. The accused does not bear criminal antecedents,
fact remains, accused attacked PW6 with a knife
because PW6 demanded repayment of loan. The incident
1’) 1…
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took place in a broad day light in the city of Mysores. The
accused was aged about 19 years at the time Ol:~”i’1″‘1{‘3_l’tVE’.<.f:_',:'1'1l:'. A'
22. Having regard to nature of offence, of
incident and taking into considieratlilbnj’.
and mitigating circumstances_,’. I it pmyjerl to it sel1:1te’1ice’»rp
the accused to undergo period of
three years and / default to
undergo simple imprisognmelntppl six months for
an offence pu’riissh’ab1e’ under IPC.
23.’ In the following:~
~ ORDER
The appea_l___i.s accepted in part. The impugned
~ judgmentmodified. The accused is acquitted of an offence
if ~. lpuinilshlablel’under section 807 IPC. The accused is convicted
offence punishable under section 326 IPC. The
” ra_ccus’ed is sentenced to undergo simple imprisonment for a
‘period of three years and pay a fine of Rs.5,000/–, in default
T to undergo simple imprisonment for a period of s 1
months
L c.w~£«2t.
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for an offence punishable under section 326 E}?’C;_ The
accused is entitied for benefit avaiiabie L11’1Cl€3I”V…Sc3″CVt’i'()fiV:~
Cr.P.C. Office is directed to send back rec01″c1′;~?..:£1E0:.1e1gvV}’\/fitigaé’V’
copy of this judgment to secL1re;’iHe accu«secl’ biI_:1p}’ernei1t
sentence.
NP/SNN K .11′. A