(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C. pleased to seta side the impugned judgment and order of Conviction and the order on sentence dated 06.03.2019, passed by the VII Additional District and Sessions Judge, Musury in S.C.No.182/2014, convicting the appellant/accused for the offence P/U/S 448, 504, 354, 506 and 307 of IPC.)
1. This appeal has been preferred by the accused challenging the legality and correctness of judgment and order of acquittal passed by the VII Additional Sessions Judge in S.C.No.182/2014 dated 06.03.2019.
2. I have heard the learned counsel appearing for the appellant and learned High Court Government Pleader for respondent-State.
3. The case of the prosecution in brief is that the Complainant-husband and one Madevi were staying along with their children in a shed put up on a vacant site belonging to Krishnappa Gowda in Muddumallappa Layout of Nanjajgud Town. The complainant-husband was working as a Auto driver in day time and at night he used to work s watchman. Adjacent to the said shed accused was also having a shed prior to the alleged incident. Six months back to the incident, accused had outraged the modesty of her by putting her and when she had gone to fetch water. A complaint also came to be registered against the accused.
4. On 20.0.2013 at about 10.15 p.m, the accused had trespassed into the shed of the complainant and had picked up quarrel and abused her in a filthy language and threatened her that he will rape her. But when he was pulling and pushing her she sought for help. At the same time her husband who had come in auto rickshaw had intervened and saved her life and at that time the accused who had brought a chopper tried to assault on his neck with the chopper with an intention to kill him. The complainant in order to escape from the attack had put his left hand across in the said circumstances accused assaulted to left thumb, as a result of the same, there was fracture to the left thumb.
5. He further proclaimed that he is handicapped and everyone will show sympathy to him and after getting a bail he would finish him off. At that time, CW-3 immediately snatched the chopper from accused and shifted the inured to the hospital. On 21.02.2013 at about 2.00 p.m, the police visited the hospital on information and recorded the statement of the injured and a case was registered in Crime No.75/2013. After completing the investigation, the charge sheet was filed.
6. Thereafter, the learned Sessions Judge took cognizance to secure the presence of the accused and after hearing the learned counsel for the parties the charge was framed. The accused pleaded not guilty and he claims to be tried, as such, trial was fixed.
7. In order to prove the case of the prosecution, it has got examined 12 witnesses and got marked 22 documents and one material object. Thereafter, the statement of the accused was recorded under Section 313 of Cr.P.C. and the accused denied the incriminating material. Thereafter, the statement of the accused was recorded. Thereafter, accused got examined himself as DW.1 and got marked 13 documents as Exs.D1 to D13. After hearing the learned counsel appearing for the parties the trial Court convicted the accused.
8. The main grounds urged by the learned counsel for the appellant are that trial Court without considering the material placed on record has come to a wrong conclusion and wrongly acquitted the accused. It is his further submission that many cases were pending between the parties and only because of enmity the present complaint has been filed though there is no such alleged incident has taken place. It is his further submission that PW1 in his evidence has deposed that he has shown the bloodstain cloths but the said cloths has not been recovered and seized by the police that itself creates a doubt in the case of the presentation.
9. It is his further submission that the conduct of PW.1 has not been properly appreciated. It is his further submission that the complaint and other material which has been produced by the accused has not been properly appreciated by the trial Court. It is the complainant and his wife along with others came and assaulted the accused and a false case has been registered against the accused.
10. It is his further submission that there were so many contradictions and omissions in the evidence of the prosecution and the same has not been properly appreciated by the trial Court. It is his further submission that the trial Court only based upon the evidence of PW.1 and 2 so far as convicted the accused. It his further submission that there was no intention to take away the life of the accused, if at all PW.1 has suffered the injuries that it is not the vital part of the body. Then under such circumstances, the Court below ought to have convicted the accused for a lesser offence rather than punishing under Section 307 of IPC.
11. He further submitted that already the accused has suffered imprisonment for a period of one and half year. This aspect has also not been considered by the Court below. On these grounds, he prays to allow the appeal and to set aside the impugned order and acquit the accused.
12. Per contra, the learned High Court Government Pleader vehemently argued and submitted that there is ample material as against the appellant-accused. PW.1 is the complainant and the husband of the victim and he has categorically deposed with regard to the overt tact of the accused and PW.2 has also clearly stated that the accused entered into the house and tried to outrage her modesty and at that time the complainant came inside and the accused with an intention to take away the life of PW.1 tried to assault on his neck and when he brought his left hand across his left hand thumb has been fractured. It is his further submission that nothing has been elicited from the mouth of the eye witness so as to discard his evidence. It is his further submission that the accused with an intention to take away the life try to assault the complainant but fortunately that it has hit to the left hand thumb.
13. It is his further submission that the accused has assaulted with chopper the weapon that it had been used itself clearly goes to show that the accused was having an intention to take away the life. It is his further submission that earlier complainant and accused had rivalry that itself clearly goes to show that there was a motive for the purpose of the said act. Taking into consideration all the above and facts and circumstances, the trial Court has rightly convicted the accused. On these grounds, he prays that the appeal is devoid of merits and same is liable to be dismissed.
14. I have carefully and cautiously gone through the submission made by the learned counsel appearing for the parties and perused the records.
15. In order to prove the guilt of the accused, prosecution got examined 12 witnesses. PW.1 is the injured and he is the husband of PW.2. In his evidence, he has deposed that the got married with PW.2 with love marriage and he got two siblings and he is running the auto rickshaw and during night hours he is working as watchman.
16. He has further deposed that 5 to 6 months earlier to the alleged incident PW.2 was fetching water at that time the accused by holding her hand pulled her saree and torn her blouse with an intention to outraged her modesty. In this regard, a case has been registered. He has further deposed that on 20.03.2013 as usual he had been to auto work he returned at about 10.00 or 10.30 p.m. when he came near the house he saw many people gathered outside his shed and accused by trespassing into the house pulled his wife and abused in a filthy language and he was telling that she has filed the complaint, he will outrage the modesty. When the complainant by pulling her tried to rescued her at that time the accused who has brought the chopper along with him abused the complainant and with an intention to take away the life to assault on the left side of his neck and he escaped and brought the left hand across, due to assault left hand thumb was fractured with injuries.
17. Accused was telling that he will not leave complainant and he also used to say that he is the RTI activist and he knows the police and police department and he also knows how to come out of the prison and since he is a handicapped person, sympathy will be there for him. At that time, PW.2 and PW.3 snatched the chopper from the accused and have taken the complainant to the Government Hospital at Nanjanagud at about 11.00 or 11.30 p.m and at about 2.00 or 2.30 p.m police came and recorded the statement of the injuries and registered the case. During the course of cross examination, he has admitted that apart from PW.2 he has also got married to one Malli earlier to the marriage. He has also further admitted that on 20.4.2012 himself and his wife assaulted with stones and abused the accused and in that light the case has been registered in Crime No.46/2012 and the said case was also in the Court and other objections have been denied by the accused.
18. PW.2 is the victim. She has also reiterated the evidence of PW.1. During the course of cross examination nothing has been elicited so as to discard the evidence. PW.3 is also an eyewitness and he was also a auto driver. He has deposed that after hearing a galata, he came to the spot where galata was going on and he saw the accused who is before the Court was assaulting on PW.1 and as a result of the same the thumb was got fractured and the blood was flowing. Immediately, he bandaided by snatching the Macchu and rescued the complainant. He is also a witness to the spot mahazar at Ex.P3. During the course of cross-examination, nothing has been elicited so as to discard his evidence. PW.4 is the doctor who examined PW.1 sustained cut wound over the left thumb and bleeding was there. He has deposed that the injuries has suffered fracture on the left hand thumb. He has issued the wound certificate as per Ex.P5. During the course of cross examination, he has admitted that on the same day at about 11.20 p.m he has also given treatment to the accused and he was brought with a history of assault to the hospital earliest by one Umesh and there was injury to the head and the said injury was fresh. He has further admitted that the injury caused to PW.1 is due to the assault with sharp edge. Except that nothing has been elicited from the mouth of this witness. PW.5 is the PDO and at the request of the police, he has issued the khatha extract as per Ex.P9. PW.6 is the doctor. He has deposed that Nanjanagud Rural police came and received a written complaint from the complainant Umesh. The said complaint is written by himself in his presence and handed over the same to police. He has identified Ex.P1. During the course of cross examination, nothing has been elicited from the mouth of this witness. PW.7 is also a doctor and with further reference he examined PW.1 and he has issued a certificate as per Ex.P6. During the course of cross examination nothing has been elicited from the mouth of this witness. PW.3 is the Police Constable who has drawn spot mahazar at Ex.P3.
19. PW.9 is the owner of the land in survey number where the accused and the victim were residing by putting the shed. PW.10 is the ASI. He has gone to the hospital and in the presence of the doctor, he has inquired the complainant and received the complaint as per Ex.P1 and brought the same and produced before PW.12.
20. PW.11 is the Investigating Officer who investigated the case and had filed chargesheet against the accused. PW.12 is the police inspector who received the complaint given by PW.10 and registered the case and issued FIR and partly investigated the case.
21. DW.1 is the accused. In his evidence he deposed that on 20.03.2013 at about 9.30 p.m three to four persons trespassed into his house and tried to kill him and assaulted with Macchu and he fell down. At that time he was assaulted with stone and nobody was there in his house. He alone was there and after that he has been taken to the hospital and thereafter he filed a complaint. He has also got produced D to D7.
22. On going through the evidence and material placed on record, it indicates that there were cases pending as against the appellant/accused and the complainant earlier to the alleged incident. Prior to the incident, the accused was teasing PW.2 and other women who were passing through his house and he also tried to outrage the modesty of PW.2. In that regard, case was registered in Crime No.46/2012. In the alleged incident, the accused has trespassed and came to the house and again abused and threatened her and he had tried to outrage the modesty and at that time. PW.1 rescued her. The accused has already carried Macchu, and tried to assault on the left side of the neck and when he brought his left hand across the Macchu hit to the left hand thumb and as a result of the same, the complainant has sustained injuries.
23. PWs.1, 2 and 3 are the eyewitnesses to the alleged incident they have categorically stated about the overt act of the accused assaulting with the Macchu by trespassed into the house by abusing with an intention to outrage her modesty. This witness is also corroborate with medical evidence. Immediately, on 20.03.2013 he has been taken to the hospital and there has been got admitted with an history of assault with machhu by the accused and he has also given his opinion that there was fracture and he has also issued Ex.p6. In his evidence, he has deposed and given the opinion that there is compound fracture of head of proximal phalanx of left thumb he has issued wound certificate as per Ex.P5. He has also given the opinion that similar type of injuries can be caused if the assault has been committed by using the chopper – M.O.1. Even the doctor PW.6 has also stated that when the injures was in hospital police came and recorded his statement and he has identified the complainant. When the injures is eyewitnesses his presence and credibility cannot be discarded without there being any material to show that it is contaminated testimony cannot be discarded. When there is a material to show that the alleged incident has taken place because of the enmity, the accused has trespassed into the house, assaulted with a chopper, under such circumstances, the evidence of PWs.1 to 3 can be accepted that too when he got examined himself and has contended that it is the complainant and other three persons entered into his house and they have assaulted with the chopper but the said injury which has been sustained are not by sharp edge but he has sustained the wound with the pelting of stone and have receive the said injuries at the time of rescue. Even as could be seen from the records and the documents produced along with records, the complainant’s complaint has been registered on 21.10.2008 at about 14.30 hours and the second complaint filed by the accused has been registered on 21.10.2008 at about 18.15 hours and even subsequently the B-final report has been filed and the same has been challenged by the accused.
24. By taking into consideration the material produced it clearly goes to show that it is the accused who has abused in filthy language by tress passing into the house and tried to outrage the modesty of PW.2 and has assaulted PW.1 with chopper and caused the compound fracture of head of proximal phalanx of left thumb. All the evidence clearly points out towards the guilt of the accused. There are no good grounds to hold that accused has not committed any offence. In that light, the order of conviction is correct. But, however, the conviction for the offence under Section 307 of IPC is not correct while convicting the accused, the Court has to see the circumstances, weapon used, intention and injuries caused and its effect. In that light, the alleged injury which has been caused is not going to attract the provisions of Section 307 of IPC.As could be seen from the evidence and material placed on record the accused had trespassed into the house and was abusing and tried to outrage the modesty of PW.2 and he was uttering towards her that he will take away the life and when PW-1 intervened, at that time he has tried to assault him on h is neck, but it hit to left thumb
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and caused the said fracture. So in that light, I am of the opinion that the trial Court ought to have convicted the accused not under Section 308 but under 324 of IPC. In that light, the appellant has made out a case to modify the conviction and sentence for the offence punishable under Section 307 of IPC passed in the judgment of the trial Court. Accused has been convicted for the offence punishable under Section 324 of IPC. 25. Taking into consideration the above and facts and circumstances, the appeal is allowed in part and the judgment passed by the VII Additional District and Sessions Judge, Mysuru in S.C.No.182/2014 is modified and insofar as the conviction and the sentence passed as against the accused under Section 448, 504, 354 and 506 of IPC is concerned the same has been confirmed and insofar as the offence under Section 307 of IPC is concerned the same is modified and the accused-appellant is convicted for the offence punishable under Section 324 of IPC and he has been sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs.5,000/-. In default, he shall undergo simple imprisonment for a period of six months. All the sentences must run concurrently. It is brought to the notice of this Court that the accused has already undergone the imprisonment for a period of more than one year. In that light, as he has been already undergone imprisonment more than for a period of one year, then under such circumstances, as per Section 428 of Cr.P.C., period of detention undergone by the accused to be given set off. If already accused has served the sentence as imposed above, the jail authorities the directed to release the accused forthwith, if he is not required in any other case. I.A. No.3/2019 does not survive for consideration and the same is disposed of.