w w w . L a w y e r S e r v i c e s . i n



Ajjegowda @ Ajjanna @ Revolver Raja v/s State of Karnataka, Represented by Channarayapatna City Police


Company & Directors' Information:- CITY CORPORATION LIMITED [Active] CIN = U45202PN2003PLC018435

Company & Directors' Information:- RAJA INDIA PRIVATE LIMITED [Active] CIN = U99999DL1997PTC084258

Company & Directors' Information:- K. S. CITY PRIVATE LIMITED [Active] CIN = U45201MP2006PTC018691

Company & Directors' Information:- H & D CITY PRIVATE LIMITED [Strike Off] CIN = U70102UP2015PTC068088

Company & Directors' Information:- RAJA AND COMPANY LIMITED [Dissolved] CIN = U74999KL1943PLC000980

    Criminal Appeal No. 1309 of 2010

    Decided On, 20 November 2020

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE H.P. SANDESH

    For the Appellant: Venkatesh R. Bhagat, Advocate (Video Conference). For the Respondent: Diwakar Maddur, HCGP (Physical Hearing).



Judgment Text

(Prayer: This Criminal Appeal is filed Under Section 374(2) of Cr.P.C praying to set aside the judgment dated 7/8.12.2010 passed by the presiding officer, Fast Track Court, Channarayapatna in S.C.No.23/08 convicting the appellant/accused for the offences punishable under Sections 448 and 307 of IPC.)1. This appeal is filed challenging the judgment of conviction and sentence dated 07.12.2010 passed in S.C.No.23/2008 on the file of the Fast Track Court, Channarayapatna, for the offences punishable under Sections 307 and 448 of IPC sentencing the accused for a period of five years and to pay a fine of Rs.2,000/- for the offence punishable under Section 307 of IPC and sentencing the accused to undergo imprisonment for a period of three months and to pay a fine of Rs.250/- for the offence punishable under Section 448 of IPC.The brief facts of the case:2. It is the case of the prosecution before the Trial Court that the complainant Smt. N.T. Jayalakshmamma lodged the complaint against the appellant that on 22.11.2007 when she was alone in the house at around 12.00 noon, the accused trespassed the house of the complainant with an intention of taking her life and in furtherance of the same, he has assaulted her by means of iron rod and caused injuries on her head and other parts of the body. Hence, the police registered the case against the accused for the offences punishable under Sections 448 and 307 of IPC. The police after investigation have filed the charge sheet and the same was registered as C.C.No.46/2008 and on committal, the same was registered as S.C.No.23/2008.3. The prosecution in order to prove the case, examined P.Ws.1 to 11 and got marked the documents at Exs.P.1 to 9. The prosecution also relied upon M.Os.1 to 3. The Trial Court after considering both oral and documentary evidence placed on record, convicted the accused. Hence, the present appeal is filed before this Court.4. In the appeal memorandum, it is contended that the Fast Track Court has failed to take note of the fact that all the witnesses examined by the prosecution are interested witnesses, who are having political vengeance against the appellant, who is presently belonging to BJP. The Trial Judge also failed to take note of the fact that the motive and evidence is not at all proved. None of the witnesses have stated regarding the presence of the accused or his overt-act. Despite the same, the Trial Court committed an error in convicting the accused. The complaint was given at 1.15 p.m. though alleged incident took place at 12.00 noon, which clearly reveals that after thought the complaint has been lodged. The Trial Judge in a casual manner arrived at a conclusion basing on presumptions and surmises and erroneously convicted the appellant. The Trial Judge failed to take note of the fact that the prosecution has failed to prove the intention and motive and wrongly convicted the appellant. There are so many inconsistencies and contradictions in the evidence of the prosecution witnesses.5. The learned counsel for the appellant in his oral arguments vehemently contend that even though the Trial Court has come to the conclusion that P.Ws.2 to 5 are not eye witnesses to the incident and they are circumstantial witnesses, erroneously convicted the accused. The evidence of doctor and victim are contrary to each other.6. The learned counsel for the appellant submits that in order to attract Section 307 of IPC, three factors are essential - intention, nature of injury and nature of weapon used. P.W.1 complainant herself has not spoken anything about the intention of the accused in attempting to take away the life of the complainant. It is only an improvement by the prosecution through the other witnesses regarding intention. The evidence given by P.W.1 is against Ex.P.1 - complaint. The Trial Judge has erroneously relied upon Exs.P.3 and Ex.P.5 x-ray is doubtful as it contains no date and time. Dr. Mahesh has treated the injured. P.W.7 doctor who has been examined is children specialist and not orthopedic. X-ray produced before the Court is also manipulated. Both the evidence of P.Ws.1 and 7 cannot be believed. M.Os.1 and 2 - clothes of the victim and M.O.3 - alleged iron rod used to assaulting and the FSL report, are not produced before the Court. The very seizure of the rod is disputed and in terms of Ex.P.2, P.W.2 has produced the same. P.W.2 in his evidence says that the same was lying on the spot and there are contradictions in the documents Ex.P.2 and in the evidence of P.W.2, seizure of iron rod was not proved. M.Os.1 and 2 blouse and sweater though contains the blood, there is no report. The case of the prosecution is that the accused was apprehended by the persons who were there at the spot and the alleged iron rod was not recovered at the instance of the accused though it was apprehended near the house of P.W.1. The evidence of P.Ws.2, 3 and 4 are contrary to each other and their evidence cannot be relied upon. Hence, the accused is entitled for benefit of doubt and the same has not been exercised by the Trial Court.7. The learned counsel would also contend that the records disclose that there was enmity between the complainant and the accused on account of election of Taluka Panchayat President and the complainant P.W.1 did not support the accused in the said election. Due to political rivalry, the accused has been falsely implicated in the case. The Trial Judge has committed an error in appreciating the interested witnesses evidence. The learned counsel would submit that the accused was in custody during the trial as well as after the conviction for a period of four months 10 days.8. The learned counsel in support of his contentions, relied upon the judgment of the Hon'ble Apex Court in the case of SARJU PRASAD v. STATE OF BIHAR reported in AIR 1965 SC 843 and brought to my notice paragraph No.8 of the judgment, wherein it is held that whether the appellant intended to cause such injury as he knew to be likely to cause death or intended to inflict an injury which was sufficient in the ordinary course of nature to cause death or that he knew that his act was so imminently dangerous that it must in all probability cause death or cause an injury as is likely to cause death.9. Referring paragraph No.9 of the judgment, the learned counsel would submit that the nature of injury and also certainty that the accused had such intention or knowledge and the evidence must be evaluated and the Court has to take note of the ingredients of Section 307 of IPC and come to right conclusion. In this case, the Trial Court has failed to consider that there is no any evidence that with an intention to take away the life an attempt was made and P.W.1 has not spoken anything about the intention to take away the life.10. The learned counsel also relied upon the judgment of the Hon'ble Apex Court in the case of STATE OF MAHARASHTRA v. BALRAM BAMA PATIL AND OTHERS reported in AIR 1983 SC 305 and brought to the notice of this Court that the Apex Court while reversing the judgment of the High Court has observed in paragraph No.10 that the accused had already served the sentence and having considering the circumstances held that justice should be met if the sentence is limited to the period already undergone.11. The learned counsel for the appellant also relied upon the judgment of the Hon'ble Apex Court in the case of GOVINDARAJU ALIAS GOVINDA v. STATE BY SRIRAMAPURAM POLICE STATION AND ANOTHER reported in (2012) 4 SCC 722. The learned counsel referring this judgment submits that in paragraph Nos.51 and 52, the Apex Court discussed regarding no effort made by the prosecution to prove that it was human blood and blood group of the deceased was also same blood group and no reliance can be given on recoveries. The learned counsel referring the principle laid down in the judgment submits that in the case on hand, though the prosecution claims that iron rod and clothes were seized and the same was sent to FSL, no FSL report is produced and in the absence of any FSL report, the accused cannot be connected to the incident and there are contradictions in the evidence of prosecution witnesses and seizure of M.Os.1 to 3.12. The learned counsel also relied upon the judgment of the Hon'ble Apex Court in the case of NAGARAJ v. STATE, REPRESENTED BY INSPECTOR OF POLICE, SALEM TOWN, TAMIL NADU reported in (2015) 4 SCC 739. Referring to this judgment the learned counsel would submit that the Trial Court has committed an error in coming to the conclusion that the accused has not offered any explanation in his 313 statement. The Apex Court in this judgment held that what the accused has stated or what he failed to state in his examination under Section 313 of Cr.P.C. when the remaining evidence did not inspire the confidence of the Court, the appellant is entitled for acquittal.13. Per contra, the learned High Court Government Pleader appearing for the State would submit that the prosecution has relied upon 11 witnesses and all the witnesses have supported the case of the prosecution. The motive for committing the offence has been proved by the prosecution since the accused was having ill will against the complainant that she did not support the accused in the Taluka Panchayat President election. The accused was having ill will against the complainant as the complainant did not support him in the election and he lost the said election. Hence, motive has been proved. He also submits that there is no dispute with regard to the fact that both the accused and the complainant are members of the Taluka Panchayat. The very contention that the accused was not having intention and the same has not been proved, cannot be accepted for the reason that the accused came with an iron rod and assaulted on the vital part of the head of the complainant. When such being the case, it cannot be contended that he was not having intention to take away the life of the complainant. The accused was apprehended by the general public when the accused was escaping from the house of P.W.1 after assaulting her. The car of the accused was also seized near the house of P.W.1 in which he came to assault P.W.1 and he was handed over to the police by C.W.6 and 7. C.W.6 has spoken with regard to apprehending the accused while he was running away from the spot. The prosecution has proved the case both in respect of the motive as well as he was apprehended by the general public and handed over to the police and the accused assaulted P.W.1. The injured P.W.1 and the other witnesses have supported the case of the prosecution and there is no material to disbelieve the case of the prosecution and the discrepancies found in the evidence will not take away the very route of the case of the prosecution.14. In reply to the arguments of the learned High Court Government Pleader appearing for the State, the learned counsel for the appellant would submit that the remand application placed before the Court is contrary to the evidence of P.W.1 and both the accused and the complainant are not belonging to the very same village and they belong to different villages. There is no FSL report in respect of seized articles M.Os.1 to 3. Hence, the accused is entitled for acquittal.15. Having heard the arguments of the learned counsel for the appellant and the learned High Court Government Pleader appearing for the State, the points that arise for the consideration of this Court are:(i) Whether the Trial Judge has committed an error in convicting the accused for the offences punishable under Sections 307 and 448 of IPC?(ii) What order?Point Nos.(i) and (ii):16. Before considering the grounds urged in the appeal memo, this Court has to analyze both oral and documentary evidence available on record to re-appreciate the material on record.17. The prosecution in order to substantiate the charges leveled against the accused, examined the injured as P.W.1 and examined other witnesses who are the eye-witnesses and mahazar witnesses as P.Ws.2 to 11. The prosecution also relied upon the documentary evidence of Exs.P.1 to 9 and got marked M.Os.1 to 3.18. P.W.1 injured in her chief evidence deposes that at around 12.00 noon, when she was in the house, somebody knocked the door of her house and when she peeped through the window, found the accused. P.W.1 was having acquaintance with him and hence she opened the door. The accused entered the house and assaulted her with the object which he had brought covering in the paper. As a result, she has sustained injury to her head. The accused from the same weapon assaulted below her right eye and when she tried to ward off the blow, he has assaulted on her right hand. As a result, she has suffered the fracture. It is also her evidence that she screamed when the incident took place and by that time, the persons who were near the sawmill rushed to the spot and peeped through the window and she came out from the house screaming. The owner of the sawmill Eshwara witnessing the blood oozing, shifted her to the Government Hospital, Channarayapatna in an auto rickshaw.19. P.W.1 further deposes that in between 2000 to 2005, she and the accused both were the members of the Taluka Panchayat and the accused was having ill-will because she did not support him in becoming the President of Taluka Panchayat. P.W.1 further deposes that the accused came in his car and parked the car by the side of the road. She saw the said car at a distance of 25 meters from her house. The police have recorded her statement in the hospital in terms of Ex.P.1. She says that as she had sustained injury to her right hand, she put the left thumb impression on Ex.P.1. It is also her evidence that by oversight she has mentioned that two other persons were there, but no other persons were there and she gave further statement in this regard. The witness also identifies her blouse and sweater as M.Os.1 and 2 and also the weapon iron rod as M.O.3. She was subjected to cross-examination.20. In the cross-examination, it is elicited that they have constructed the house in their land and staying there. It is also elicited that in front of her house there is a public road and several people and vehicles will move in the said road. In the said road, the people who were coming to the sawmill were also moving. It is suggested that the said sawmill runs throughout and the witness says that whenever electric power was there, the same will be running. It is also elicited that she is having her mother along with her since no other persons were there to take care of her. P.W.1 also admits that public used to visit her house since she is in social service. It is elicited that she is having acquaintance with the accused from 2000 and both got elected from the same political party. It is elicited that the accused tried to become the President of Taluka Panchayat. It is suggested that during the said election, she demanded definite money from him, and the same was denied. A further suggestion was made that the accused refused to pay the money, hence she was having ill-will against him, and the same was denied. It is elicited that she has continued in the same political party. It is elicited that the sawmill is situated at a distance of 20 meters and also she admits that the road is also at a distance of 20 meters from her house. If anything is screamed in her house, the same can be heard by the persons, who are moving in the road.21. P.W.1 says that the weapon which the accused brought was covered with newspaper. It is elicited that her saree was not stained with blood. It is also suggested that when the assault was made on the head, immediately she fell down on the ground and the said suggestion was denied. The people who came to the spot were present when she came out from the house and she was taken to the hospital by P.W.2 at around 1.00 p.m. and she was in the hospital till 4.00 p.m. and thereafter she was taken to Hassan in an ambulance and she revealed the incident to the doctor when she went to the hospital. The police have recorded her statement. P.W.3 was grazing buffaloes and he belongs to her village. The police have collected the blood stained clothes and given the same to P.W.2. White Maruti car was parked by the side of the road. The police came to the hospital. It is reiterated that she has sustained injuries to the head, below the right eye and right hand. When she fell down, she has also sustained injuries on left side of her head and also waist. Except these injuries, she has not sustained any other injuries.22. It is elicited that for the first time she is seeing M.O.3 and the witness volunteers that she has seen the same when the same was covered with paper on the date of the incident. It is suggested that the accused has not assaulted her and she has sustained the injury while doing agricultural work, and the said suggestion was denied. Further statement was recorded in Nagesh Hospital, Channarayapatna.23. P.W.2 is the owner of the sawmill. In his evidence he says that he was talking with the persons who were there in the sawmill in between 12.00 to 12.30 p.m. and heard the screaming sound and immediately rushed to the house of P.W.1. He witnessed the injury on the head and also on the face of P.W.1 and she was not in a position to lift her hand and a person ran away from the said spot. The other witnesses, C.Ws.3, 6 and 7 were also present. He took the injured to the hospital along with C.W.4 and 5. He also says that the doctor gave one packet to him and he does not know the contents of the same. On the next day at around 8.00 a.m., the police came and called him and also C.Ws.3 to 5. The police opened the packet which was given in the hospital and it contained blouse and sweater of P.W.1 and he identifies them as M.Os.1 and 2. The police have seized the rod which was lying at the spot in the verandah of the house. It is also his evidence that when he went to the spot, he found white car and in this regard he informed the same to the police. But he did not notice the said car when the police came. The police have drawn the mahazar in terms of Ex.P.2 and he identifies his signature as Ex.P.2(a).24. In the cross-examination, he admits that four persons work in his sawmill and two of them were working on that day. It is also elicited that when he went to the spot, he found P.W.1 on the verandah and she had sustained the injuries and blood was oozing. P.W.1 told that accused assaulted her. C.Ws.4 and 5 accompanied him to the spot and C.W.3 was also present. P.W.1 was lying in the canopy and blood was found at the spot. It is also his evidence that he was in the hospital for about half an hour. It is elicited that he cannot tell the place where P.W.1 sustained injury and also cannot tell in which weapon she was assaulted and also he did not notice the person who ran away from the spot. He admits that he is seeing M.Os.1 and 2 for the first time and the witness volunteers that those clothes were given to him in the hospital and he is not having any specific identification mark. It is also his evidence that the said packet was given to the mother of P.W.1.25. P.W.3 in his evidence says that he was grazing buffaloes at around 12.00 p.m. and he heard the screaming sound. He also found C.Ws.2, 4, and 5 running from the sawmill towards the house of P.W.1. Hence, he also rushed to the house of P.W.1. It is his evidence that he peeped through the window and saw accused assaulting P.W.1 with rod. The accused was telling that he will take away her life and the accused seeing them threw the rod at the spot and went away. He also screamed to catch hold of the accused and at that time the persons who were proceeding in the road caught hold of him and brought near the house of P.W.1. On enquiry, the accused told that P.W.1 did not support him in the Taluka Panchayat President election and hence, he was having ill-will against her and assaulted her. The police came and took him. He also went to the hospital to see P.W.1 and she revealed with regard to the ill-will. He identifies M.Os.1 to 3.26. In the cross-examination, it is elicited that he was alone near his land and grazing buffaloes. It is elicited that when he rushed to the house of P.W.1 she had already sustained the injuries and she was outside the house. It is also elicited that when he rushed to the house of P.W.1, C.W.2, 4 and 5 were already there and he says that all of them came after he rushed to the spot. He says that on that day, there was no power supply and hence sawmill was not running. He found injury on her head of P.W.1 and blood was oozing and also she sustained injury on her hand and there was no blood on her hand. He did not accompany the injured to the hospital. The accused was escaping in the road, which is public road. The accused had thrown the iron rod in the verandah and he is not having any specific identification of M.O.3. When the police came to the spot, the accused was there, but P.W.1 was not there and the police took the accused. It is elicited that he has not given any statement before the police in respect of the incident when the police came. P.W.1 has sustained injury to her head and hand and she has not sustained any other injuries.27. P.W.4 in his evidence he says that he himself and C.W.5 both went to the sawmill to cut the wood and there was no power supply. Hence, they were talking to each other. At around 12.15 p.m. to 12.30 p.m., they heard the screaming sound from the house of P.W.1 and immediately he himself, C.Ws.2 and 5 rushed to the house of P.W.1 and in the meanwhile P.W.3 also came to the spot. It is also his evidence that he peeped through the window and saw the accused was assaulting P.W.1 with iron rod and thereafter he had thrown the iron rod at the spot. But he took the paper from which he had covered the iron rod. In the meanwhile P.W.1 came out from house and she had sustained injury to her head, shoulder, face and hand. P.W.2 took the injured to the hospital in an auto rickshaw. It is also his evidence that he himself, C.Ws.3 and 5 have tried to catch hold of the accused and in the meanwhile two persons who were on the road, i.e., C.Ws.6 and 7 held the accused and thereafter he was brought near the house of P.W.1. On enquiry, he revealed regarding ill-will about the Taluka Panchayat Presidential election. The police called him on the next day to the police station and recorded his statement. The accused had thrown the iron rod at the spot. He was subjected to cross-examination.28. In the cross-examination, he admits that other people were also there in the sawmill. It is elicited that when he rushed to the spot, at that time P.W.1 was coming out of the house and she had sustained injury to her head and below the right eye and shoulder. He cannot say which colour clothes the accused was wearing. P.W.1 was wearing saree, blouse and sweater. All of them went to the spot together. P.W.1 who came out from the house suddenly fell down. When she was taken to the hospital, it may be around 12.45 p.m. to 1.00 p.m. and he does not know who had intimated to the police. The accused started running in Mysore-Channarayapatna road and he found the accused at a distance of 15 feet. The accused was brought near the house of P.W.1 by C.Ws.6 and 7 at around 1.15 p.m. On the next day, he went to the police station at around 11.00 a.m. and C.Ws.2 ,3 and 5 were also there in the police station.29. P.W.5 in his evidence says that he was in the sawmill and heard the screaming sound and rushed to the spot and when he peeped through the window, he saw accused was assaulting P.W.1. As a result she fell down. P.W.1 escaped from the clutches of the accused and came out from the house and the accused seeing them threw the rod at the spot and went away. He himself, C.Ws.2 and 4 chased him screaming to catch him. At that time C.Ws.6 and 7 caught hold of him. Thereafter he was brought near the house of P.W.1. The police, on information came near the house of P.W.1 and took the accused. C.W.2 produced the iron rod when the police came for spot inspection. C.W.2 produced the blouse and sweater and police have also seized the car, which was parked by the side of road. He also signed the mahazar Ex.P.2 and identifies his signature as Ex.P2(b). The blouse and the saree were also blood stained. He identified M.Os.1 to 3.30. In the cross-examination, he says that he went to the sawmill in the bull cart belonging to C.W.4 and by that time sawmill was closed. After half an hour the same was opened. Power supply was there till 11.30 a.m. and thereafter there was no power supply. Hence, they were waiting. There were employees of sawmill also. The power came between 1.30 p.m. to 2.00 p.m. He admits that the house of P.W.1 is situated at a distance of 150 ft. from the sawmill. Except P.W.1 and the accused, no one were there at the spot. He also admits that when he came to the spot, P.W.1 was lying and she had sustained the injuries on her head and hand. He did not visit inside the house since P.W.1 came out of the house. The accused ran away from the spot to the extent of 150-200 meters from the house of P.W.1. He himself, C.Ws.4 and 3 chased him and accused threw the rod outside the house. It is also his evidence that the accused was stamping the stomach and chest of P.W.1. P.W.1 came out from the house and fell down outside the house. The police have not given any notice to come for mahazar. P.W.2 has produced the clothes. M.Os.1 to 3 were seized by packing the same in the cloth and he is not having any special identification marks. It is suggested that he is falsely deposing to help P.W.1 and the same was denied.31. P.W.6 in his evidence says that C.Ws.3, 4 and 5 were chasing the accused and they screamed to catch him and hence he himself and C.W.6 held him on the apprehension that he might be a thief and after apprehending him, he revealed about the ill-will. The accused told them to leave him saying if general public comes to the spot, he would be assaulted. He was taken near the house of P.W.1 and made to sit. Thereafter the police came and took him and also instructed him to come and give statement in the police station. He was subjected to cross- examination.32. In the cross-examination, he admits that for the first time he had seen C.Ws.4 and 5 and also admits that he was not having any acquaintance with the accused prior to the incident. He was apprehended at a distance of 25-30 meters from the house of P.W.1. He did not witness the blood stains at the spot. The police came and went inside the house and thereafter they left. He admits that in his statement he did not mention that P.W.3, C.Ws.4 and 5 were chasing him in terms of Exs.D.1 and 2.33. P.W.7 is the doctor who gave treatment to P.W.1. He says that the injured has revealed that the accused assaulted her with rod and she had sustained injury to her head and also found cut wound injury. He also found injury on the face below the right eye and also she was having pain in her right hand and the same was swelling. X-ray was taken and found there was a fracture of ulna bone and she was subjected to CT scan and found right temporal bone fracture. He has given the wound certificate in terms of Ex.P.3 and identifies his signature as Ex.P.3(a). He also sent police intimation in terms of Ex.P.4 and identifies his signature as Ex.P.4(a). The witness also identifies his signature on Ex.P.1 as Ex.P.1(a). It is also his evidence that if any is person assaulted with iron rod, there are chances of sustaining the injury as found on P.W.1. The injuries mentioned in Ex.P.3 would be sustained if iron rod is used to assault.34. In the cross-examination, it is elicited that in the hospital records it is mentioned that relatives brought injured to the hospital. In MLC register it is mentioned that P.W.1 came by herself. It is also elicited that they used to take the signature of the person in MLC register, who brought the injured to the hospital. It is also elicited that they used to mention in the MLC register if necessary for admission and also they have not mentioned the same in the MLC register if the patient has taken treatment as out patient. The witness also admits that if the patient is referred to other hospital, the same would be mentioned in the MLC register. He also admits that in MLC register they have not mentioned that the patient took the treatment as inpatient. It is also his evidence that P.W.1 inpatient records are not produced and witness says that she was an out patient. It is elicited that orthopedic surgeon Dr.Mahesh has given the opinion about the fracture and the same is not mentioned in the MLC register. They used to keep the patient in the hospital till the injured is stabilized and also till the arrival of relatives of the injured before sending the patient to other hospital. He also admits that he has not given the x-ray to the police. It is elicited that if the patient is subjected to x- ray, they used to mention the number and date. It is elicited that lacerated wound would occur by using of blunt or sharp edged weapon. The injuries found on P.W.1 are fresh injuries. The witness says that unless the patient was subjected to x-ray, he cannot tell about the linear fracture. He also admits that in the MLC register, they have not mentioned about the fracture of temporal bone. He also admits that x-ray cover page was corrected as 22.11.2007 from 11.11.2008. It is suggested that even though P.W.1 has not sustained injuries mentioned in Ex.P.3, he is falsely deposing before the Court and the injuries found were simple injuries and not grievous injuries, and the suggestions were denied. Injury No.1 would occur if a person had come in contact with hard object. A suggestion was made that if any person falls on the stone, injury No.2 could be sustained and the same was denied. The other suggestion was made that when a person slips and body comes in contact with the hard surface and if hand comes inside the hard surface, there is a chance of fracture of ulna, and the said suggestion was denied. The intimation was sent at around 12.35 p.m. to the police and they usually used to mention the name and time and there are no details in Ex.P.4. He also admits that when he has signed Ex.P.1, he has not mentioned the date and time. This witness was further examined and got marked Ex.P.5. He was subjected to cross-examination.35. In the cross-examination, he says that in their hospital there is no facility to mention the number in the x-ray. He admits that in Ex.P.5, it is mentioned as "x-ray right belt".36. P.W.8 in his evidence says that he found the accused in between 10.45 a.m. to 11.00 a.m. near Srinivasapura Sugar factory and the accused picked up an iron rod in the factory vicinity. He questioned as to why he is taking the same and the accused replied that some one is in trouble. Thereafter at around 12.00 p.m. to 12.30 p.m., he came to know that the incident was taken place and the accused was detained near the house of P.W.1. The police asked him to come and give the statement and accordingly he went and gave the statement.37. In the cross-examination, he admits that when he saw the accused near the vicinity of the sugar factory, he was alone. He came near the factory in his car and he does not know the car number. But it was white colour Maruti car. He admits that in his statement, he did not reveal anything about visiting near the house of P.W.1 and police seized the iron rod. It is suggested that he is falsely deposing and the accused never took the iron rod near the sugar factory and the same was denied.38. P.W.9 Head Constable in his evidence says that he took the seized articles for FSL on 06.12.2007 and the same were not in order. Hence, he came back and again took the articles on 07.12.2007 and delivered the same to FSL and thereafter he reported the same to C.W.14. In the cross- examination, he admits that he was permitted to take the same on 06.12.2007 and there was no separate permission given to carry the same on 07.12.2007.39. P.W.10 in his evidence he says that he carried the FIR to the Court and gave the same at 3.30 p.m. to the Magistrate and reported the same to C.W.14.40. P.W.11 is the Investigating Officer and in his evidence he says that he has received the police intimation from the hospital in terms of Ex.P.4 and thereafter he went to the hospital and recorded the statement of the injured in terms of Ex.P.1 in the presence of the doctor. He identifies his signature as Ex.P.1(b). Thereafter, he came and registered the case and sent the FIR in terms of Ex.P.7. At around 2.45 p.m. he went near the house of P.W.1 and took the accused to his custody and came back to police station at around 3.30 p.m. The voluntary statement of the accused was recorded and also recorded the statement of C.Ws.6 to 8. On the next day, he went to the spot at around 8.00 a.m. and conducted the mahazar from 8.30 a.m to 10.00 a.m. in terms of Ex.P.2 and also seized M.Os.1 to 3. He also seized the car of the accused. He also recorded the statement of C.Ws.2 to 5 and also recorded further statement of P.W.1 in the hospital. He prepared the rough sketch of the spot in terms of Ex.P.8. He also sent the seized articles to Mysore FSL and he issued Ex.P.6. He has collected the wound certificate and after the completion of the investigation, he filed the charge sheet.41. In the cross-examination, he admits that he did not visit the spot before getting the intimation from the hospital. He went to the spot at around 2.45 p.m. He has recorded the statement of P.W.1 when the injured was in the hospital. When he recorded the further statement, she was in Government Hospital, Channarayapatna. It is suggested that when he recorded the statement of P.W.1, at that time, C.Ws.2 to 5 were also present and the same was denied. He admits that when he went to the spot, he found lot of general public at the spot. He admits that when he went to inspect the spot for the first time, he did not go inside the house of P.W.1. It is his evidence that on the next date he recorded the statement of P.W.2. P.W.1 made the statement that she gave her stained clothes to somebody. It is also his evidence that when he went to the spot at around 2.45 p.m., no other persons were there in the house of P.W.1. But when he visited the house of P.W.1 on 23.11.2007, one Vishwanath was present. He also says that he cannot say from which place P.W.2 brought M.Os.1 to 3. It is suggested that during the investigation he did not come to know from which place the accused brought the iron rod, and the said suggestion was denied. He admits that he did not conduct any mahazar from where the accused had brought the iron rod. The car was parked at a distance of 60 feet from the house of P.W.1. P.W.1 was having conscious when he recorded the statement. It is suggested that P.W.1 was not having conscious, and the said suggestion was denied. He admits that P.W.1 did not inform him that she is unable to make the signature as she has sustained fracture to right hand. It is suggested that C.W.7 has not given the statement in terms of Exs.D.1 and 2 and the same was denied.42. Having considered the grounds urged in the appeal and also the oral and documentary evidence, this Court has to re-appreciate the same in order to come to the conclusion that whether the Trial Court has committed an error in convicting the accused for the charges leveled against him. The law was set in motion by recording the statement of injured in the hospital in terms of Ex.P1. On perusal of Ex.P1 - complaint and also the further statement of the complainant, a specific allegation is made in the complaint that on 22.11.2007 at about 12:15 p.m, the accused came and knocked the door of the complainant, since the complainant was having acquaintance with this accused, who was also a member of Taluka Panchayath in which the complainant was also a member of the Taluka Panchayath during the said period, the complainant has opened the door. The accused on opening the door entered the house and he was having an object in his hand which was covered with paper and questioned where she has kept the money and gold ornaments. When the complainant questioned the same, the accused was having a motive in connection with the complainant did not support him in the Presidential Election of Taluka Panchayath, assaulted on her head with an iron-rod and so also on her face and right hand, as a result, she sustained the fractures. It is also alleged in the complaint that while assaulting her, he uttered the word that, he will not leave her and he will take the life of the complainant. It is also mentioned in the complaint that when she screamed at the spot, owner of the saw mill Eshwara, who has been examined as P.W.2 and other persons, who were in the saw mill and in the neighbouring land rushed to the spot and pacified the galata. The accused ran away from the place throwing the rod at the spot. Thereafter, she was taken to the hospital in an autorickshaw. No doubt, in the compliant, it is mentioned that other two persons were sitting in the Car bearing registration No.CKR 3858. In the further statement of the complainant, which was recorded on the next day i.e., on 23.11.2007, she states that by mistake she has mentioned that two other persons were sitting in the Car and no such persons, were there in the Car.43. In the chief-examination, P.W.1 - injured reiterated the averments made in the complaint and also she deposes that the persons, who rushed to the spot, were peeping the incident through the window and also deposed with regard to her further statement made on the next day. In the cross-examination, it is elicited that the road, which is formed in front of her house is a public road and also elicited that the accused made an attempt to become the President of the Taluka Panchayath. It is suggested that she has demanded a definite amount from him to cast vote in his favour and the accused has refused to pay the same and the said suggestion was denied. It is also elicited that both the accused and the complainant were elected in the election from particular party. On perusal of the entire cross- examination, the motive to attack the complainant is not in dispute. The very averment of the complaint is that he was having ill-will against the complainant that she did not support him in the Presidential Election, the same is also admitted in the cross-examination by suggesting that she demanded the definite amount to cast vote in favour of the accused and the same was denied. Hence, it is clear that there was an ill-will between both of them. Having taken note of the chief evidence and cross- examination, it is emerged that there was an ill-will in connection with Presidential Election of Taluka Panchayath in which the accused was contested in the election. Hence, the motive has been proved.44. With regard to the other persons, who came to spot after screaming sound came and peeping the incident through the window is not substantiated by the evidence of P.W.1 and also the evidence of PWs.2 to 5. The fact that the incident was taken place at 12:15 p.m, is not in dispute and also the witnesses, who have been examined before the Trial Court though they claim that they have witnessed the incident peeping the incident through the window and in their cross-examination P.W.2 categorically admitted that P.W.1 was already came out from the house and she was in the Verandah of the house. P.W.1 only told that the accused has assaulted her. P.W.1 was also lying in the canopy. Hence, it is clear that P.W.2 came to spot after the incident. P.W.1 also categorically admits that she cannot tell the place in which the P.W.1 has sustained the injuries and in which object she has sustained the injury. P.W.3, who claims that he witnessed the incident peeping through the window and witnessed the incident of assaulting P.W.1 with an iron-rod. In the cross-examination, he categorically admits that when he rushed to the house of P.W.1, she has already sustained the injuries and she also already came out from the house. Though, they claim they witnessed the incident of assault, it is clear that they did not witness the incident, but rushed to the spot. P.W.4, who claims that he was in the saw mill. In the cross-examination, he categorically says that when he rushed to the house of P.W.1, she was coming out from the house and she had sustained the injury on her head and below the right eye and the shoulder. She came out from the house and she fell down outside the house. Hence, it is clear that PWs.2 and 3 have not witnessed the incident. But only saw the accused, who was escaping from the spot at the distance of 15 feet and CWs.6 and 7 i.e., P.W.6 have catch-hold of the accused and brought him near the house of P.W.1. P.W.5 though he claims that he also witnessed the incident peeping through the window and assaulting P.W.1. In the cross-examination, he categorically admits that when he rushed to the spot, by that time, P.W.1 already lying in the Verandah of her house and categorically admits that the other persons, who came along with him also accompanied him and already P.W.1 was lying when they also accompanied him and found the injuries on the head and hand. Hence, it is clear that PWs.2 to 4 also came to spot after hearing the screaming sound but not witnessed the incident of assault and they came to spot on hearing the screaming sound and found the accused was making an attempt to escape from the spot.45. The Trial Judge while appreciating the evidence of PWs.2 to 5 has categorically comes to the conclusion that they can be treated as circumstantial witnesses and they cannot be treated as eyewitnesses. Hence, I do not find any error committed by the Trial Court in coming to such a conclusion having considered both the oral and documentary evidence available on record regarding witnessing the incident. But the fact that P.W.1 had sustained the injuries on her head and other parts of her body. All of them have spoken to and also categorically depose that the accused made an attempt to escape from the spot. The trial Judge minutely and meticulously examined the evidence of PWs.2 to 5 and rightly come to the conclusion that they can be treated as circumstantial witnesses.46. Now, coming to the catch-hold of the accused is concerned, P.W.6 categorically says in his evidence that PWs.3 to 5 was screaming at the spot to catch-hold of him and he himself and C.W.6 both apprehended the accused on the ground that he might have committed the theft and thereafter he was taken near the house of P.W.1. In the cross-examination, P.W.6 categorically says that for the first time he has seen PWs.4 and 5 before the Court and also he was not having any prior acquaintance with regard to the accused.47. P.W.6 categorically says that both of them held the accused at the distance of 25 to 30 meters from the house of P.W.1. He categorically admits that while making the statement he did not mention the name of CWs.3 to 5 that they were chasing the accused. Exs.D1 and D2 were got marked confronting the same to this witness. It has to be noted that a suggestion was made that the accused was not there in the spot and the said suggestion was denied. The accused has not disputed the fact that car of the accused was parked by the side of the road and suggested that car glasses were damaged and hence it is clear that he was apprehended at the spot and accused has not given any explanation in his 313 statement in this regard.48. Having considered the material on record, particularly, the evidence of the Doctor, who has been examined as P.W.7. His evidence is very clear with regard to the nature of injuries and he also treated P.W.1, when the injured was taken to the hospital immediately. P.W.7 given the Wound Certificate in terms of Ex.P3 and also it is substantiated that he only given the intimation to the police in terms of Ex.P4. No doubt, in the cross-examination, it is elicited that in the Wound Certificate, it is mentioned that relatives have brought the injured and also mentioned as "self' and in depth, cross-examination of this witness with regard to making of entry in the MLC register. This witness categorically says that Dr.Mahesh, Orthopedic Surgeon gave the report that P.W.1 had sustained the fractures and there was no mention in the MLC Register regarding the same. P.W.7 categorically says PW.1 took the treatment as out-patient and she was stabilized and her relatives took her to the higher centre from his hospital. It is also elicited in the cross-examination with regard to the x-ray, no date and time has been mentioned and without subjecting the injured to the x-ray, it is not possible to report that she has sustained the fractures. It is admitted in the MLC register, no where, it is mentioned that she has sustained the temporal bone fracture. The witness also admits that the date 11.11.2008 was corrected as 22.11.2007.49. Having perused the corrections found on the x-ray cover and the same does not contain the x-ray number and date. Hence, it creates a doubt in the mind of the Court with regard to the nature of injuries sustained by P.W.1. However, it is clear that P.W.1 has sustained the injuries on account of the incident and immediately she was taken to the hospital and she only revealed the name of the assailant to the Doctor when P.W.1 was taken to the hospital. Ex.P1, is clear that the injured was taken to the hospital within a span of 25 minutes and history reveals that the incident has taken place at 12 noon and the injured was subjected to examination at 12:25 p.m. and found the injuries. The Doctor has opined the nature of injuries No.3 and 5 are grievous and other injuries are simple in nature. Hence, it cannot be contended that the accused has been falsely implicated in the case due to the earlier political motive as contended by the learned counsel for the appellant.50. In the cross-examination, except eliciting the answer in respect of Ex.P5, the correction of the date, nothing is elicited. The name of the injured is categorically mentioned as "Jayalakshmamma". It is elicited in the cross-examination that in the x-ray cover, it is mentioned with regard to "x-ray right belt" AP and lateral view and also it is mentioned as the fracture of ulna right femur. On perusal of the x-ray, which is in respect of ulna and found the fracture and the discrepancy found with regard to the corrections of date is clear, but the fact that P.W.7 has categorically deposed that the injured was subjected to x- ray, when the injured was taken to the hospital and found the fracture of lower end of ulna. Though, the learned Counsel has brought to the notice of the Court that the corrections made in the x-ray cover, nothing is disputed in the cross-examination of P.W.7 that the x-ray available in the cover, the same is not in respect of the right hand of the injured and merely because there are corrections on the x-ray cover, the Court cannot form an opinion that the same is not belongs to P.W.1. Hence, it is clear that the complainant-P.W.1 had sustained injuries on her head and there was a fracture to temporal bone and there was a fracture of the right ulna. The medical report supports the case of P.W.1. No doubt, PWs.2 to 5 are not eyewitnesses. The evidence of P.W.1 inspires the confidence of the Court that the accused came with a weapon and assaulted her and the incident was taken place at around 12 noon. The injured was taken to the hospital at 12:25 p.m. itself and subjected to medical examination. The evidence of P.W.6 supports that the accused was apprehended at the spot. No doubt, the other witnesses, who have been examined before the Court, particularly, the evidence of P.W.9, who deposes that he had seen the accused taking MO-3 in front of the Sugar Factory and his evidence does not inspire the confidence of the Court. The fact that MO-3 was seized at the spot. No doubt, there was a discrepancy and in the Mahazar-Ex.P3, it is specifically mentioned that P.W.2 produced the same at the spot, but, P.W.2 in his evidence says that MO-3 was lying on the spot and the same was seized by the Police. Except this discrepancy, the fact that MO-3 had seized at the spot is not in dispute. P.W.2 specifically deposed that the Police came to spot on the next date and seized the same and also he has produced MOs-1 and 2, the clothes, which were given from the hospital and he brought and given the same to the mother of P.W.1. The Police came and seized the same in his presence in the particular morning in the presence of other witnesses.51. The main contention of the learned counsel for the appellant is that though these are the articles seized and the same were not sent to the FSL. But the prosecution has examined one of the witness, who carried the said objects to the FSL Department, but no report has been produced before the Court. Merely because there is no FSL report, this Court cannot come to a conclusion that MOs-1 and 2, clothes are not belongs to the injured and MO-3 was not used for assault. P.W.1 categorically deposed with regard to assaulting on her with MO-3 and also she identifies the same and the same was seized on the next day at the spot. The injured witness as well as PWs.2 to 5 though they are not the eyewitnesses, they categorically depose that the accused tried to escape from the spot throwing MO-3 at the spot. In the absence of the FSL report, the prosecution cannot rely upon the same cannot be accepted. It is specific in the evidence of the prosecution witnesses that there were no blood stains on the MOs, but the same was seized. When such being the case, it cannot be held that the same is fatal to the case of the prosecution.52. Having appreciated both oral and documentary evidence, the document - Ex.P1 came into existence immediately when the injured was taken to the hospital and the statement of the injured was recorded in the hospital itself by the Investigating Officer. The accused was also handed over to the Police at the spot. Apart from that, FIR was sent to the jurisdictional Magistrate on the same day and the same was acknowledged by the Magistrate at 3:30 p.m. There was no delay in sending the FIR and also the Police Constable, who carried the FIR is also examined before the Court. On perusal of Ex.P1, it is clear that the injured statement was recorded from 1:15 p.m. to 1:45 p.m. in the hospital within a span of one hour of the incident and the evidence of P.W.1 inspires the confidence of the Court that the accused came and knocked the door and thereafter abruptly assaulted her with iron-rod. The medical evidence is also clear that MO-3 would cause the injury found on P.W.1. When such being the case, I do not find any error committed by the Trial Court in appreciating the evidence available on record.53. The other contention of the learned counsel for the appellant is that the offence under Section 307 of IPC cannot be invoked and an intention is missing and the nature of injuries does not attract Section 307 of IPC and also the Court has to look into the nature of weapon, which was used for assault. The learned counsel vehemently contends that there was no intention and P.W.1 was not spoken with regard to the intention to take away the life. Except mentioning the same in the complaint, the compliant recitals has not been corroborated by the prosecution and P.W.1 while deposing not stated anything about his intention i.e., to take away her life. There is a substance in the contention of the arguments of the learned counsel for the appellant, though in the complaint it is mentioned that, with an intention to take away the life an assault was made and P.W.1 in her chief evidence, not spoken anything about his intention to take away the life, but spoken with regard to the motive and he came with the iron-rod covered with paper. The fact that the accused came to the house of the complainant along with MO-3 and it is the specific evidence of P.W.1 that, it was covered with a paper and she did not notice the

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iron-rod immediately when she opened the door and the same was covered with the paper. No doubt, the prosecution made an attempt to bring the case within the ingredients of Section 307 of IPC by examining the other witnesses PWs.2 to 5 though they have spoken in their evidence that with an intention to take away the life of the accused, assaulted and their evidence cannot support the case of the prosecution, when P.W.1 herself did not speak anything about her intention. It has to be noted that the intention would be there inside the mind and the same cannot be drawn without the specific evidence. The Court also take into note of all the surrounding circumstances whether the accused was having any intention to take away the life. It has to be noted that the accused assaulted P.W.1 inside the house and he ran away from the place. If really, he intends to take away the life, he would have inflicted more injuries. Mainly, there are two grievous injuries, one is on the head and the other is on the fracture of right ulna. No doubt, the circumstances clearly disclose that P.W.1 to ward off the blow gave the right hand and as a result she has sustained injuries to the right hand and there was a fracture and he really intended to take away the life he would have inflicted more injuries and the other two injuries are simple in nature i.e., below the right eye and on the face. It is also important to note that, when the other witnesses rushed to the spot, the accused ran away from the spot. When P.W.1 was not spoken with regard to the intention to take away the life, the Court also cannot draw an inference that he came with a weapon with an intention to take away the life. However, the material is very clear that he came to the house of P.W.1 with an iron-rod, assaulted her and caused the grievous injuries. Hence, there is a force in the contention of the learned counsel for the appellant and there was no intention to take away the life and the ingredients of Section 307 of IPC cannot be invoked. It is settled law that need not necessarily the injured must sustain the fractures and grievous injuries in order to invoke Section 307 of IPC. If it is gathered from the situation and the incident that he was having an intention to take away the life, the Court can invoke Section 307 of IPC but in the case on hand he came with a weapon, assaulted and caused the fractures. Hence, at the most it attracts Section 326 of IPC and not Section 307 of IPC. The Trial Judge has committed an error in invoking Section 307 of IPC in the absence of evidence of P.W.1 and she has not deposed that with an intention to take away the life, he assaulted her. However, the judgment of the Apex Court in the case of Balram Bama Patil (supra) is not applicable to the case on hand to adjust the period of sentence served taking into the fact that the accused went with deadly weapon and assaulted the P.W.154. The other contention of the learned counsel for the appellant is that Section 448 of IPC cannot be invoked and there are no ingredients of Section 448 of IPC and the trial Judge ought not to have convicted for the offence under Section 448 of IPC. The learned counsel also would submit that the evidence reveals that the injured herself opened the door having acquaintance with the accused. Hence, the accused cannot be convicted for the offence punishable under Section 448 of IPC. The said contention cannot be accepted for the reason that in order to invoke Section 448 of IPC to punish the accused for the house-trespass, the Court has to look into the very proviso of Section 442 of IPC regarding house-trespass, whether the prosecution has proved the ingredients of Section 442 of IPC. Section 442 of IPC says, whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit "house- trespass".55. In the case on hand, no doubt, the accused came and knocked the door and on opening the door, he entered the house. In order to invoke Section 448 of IPC, the explanation in respect of Section 442 of IPC is clear that the introduction of any part of the criminal trespasser's body is entering sufficient to constitute house-trespass. The same is defined in Section 442 of IPC. It is also held that house-trespass can be committed only if one enters into a building as held in Dinesh Thakur v. State of Bihar reported in 1970 Cr L.J. 1199 (Patna). If a person entered into a building itself is enough to invoke Section 448 of IPC. Hence, the contention of the accused that no case has been made out to convict the accused under Section 448 of IPC cannot be accepted.56. In view of the discussions made above, I pass the following:ORDER(i) The appeal is allowed in part.(ii) The impugned judgment of conviction dated 07.12.2010 and the order on sentence dated 08.12.2010 passed in S.C.No.23/2008 on the file of Fast Track Court, Channarayapatna, is modified bringing the accused for the offence punishable under Section 326 of IPC instead of 307 of IPC.(iii) In respect of an offence punishable under Section 448 of IPC, the Judgment of the Trial Court is confirmed.(iv) The accused is sentenced to undergo Simple Imprisonment for a period of two years instead of five years and directed to pay a fine of Rs.50,000/-. Out of the fine amount an amount of Rs.40,000/- is payable to P.W.1 and the remaining amount of Rs.10,000/- is vest with the Government.(v) The Trial Court is directed to secure the accused and subject him for sentence for a remaining period since he was in judicial custody during the trial as well as after the conviction. Hence, accused is entitled to the benefit of set off under Section 428 of Cr.P.C.
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