(Prayer: This Criminal Appeal is filed under Section 377 Cr.P.C. praying to modify the sentence imposed on 28.10.2010 passed in sessions case No.34/2008 passed by the District and sessions Judge, Kodagu, Madikeri and impose maximum sentence on the respondent/accused for the offence P/U/S 323 of IPC and etc.,)
1. The judgment and order dated 28.10.2010 passed by the Sessions Court, Madikeri, in S.C.No.34/2008 is called in question in these appeals by the State.
Crl.A.No.216/2011 is filed by the State praying for enhancement of sentence against accused No.1. Whereas Crl.A.No.217/2011 is filed against the judgment and order of acquittal acquitting accused for the offence under Section 307 r/w Section 34 of IPC. Since both these appeals are arising out of the same judgment, these appeals are clubbed and heard together.
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br />By the impugned judgment, the Trial Court convicted accused No.1 for the offence under Section 323 of IPC. However, the Trial Court acquitted accused Nos.1 and 2 for the offence under Section 307 r/w Section 34 of IPC.
2. The case of the prosecution in brief is that at about 8.30 a.m. on 20.01.2008, when the complainant (PW.1) was involved in the road laying work along with PWs.2 and 3 namely Vasudeva and Ponnu, two unknown persons came there and obstructed PW.1 from working by threatening him that he has not attended the work in the Coffee Estate and instead he is doing road laying work; so saying, one of the two persons threatened PW.1 by showing Kathi and assaulted him with Kathi (chopper), consequent upon which PW.1 sustained simple injury on his shoulder. PWs.2 and 3 are the eye witnesses to the incident. Immediately, after the said incident the accused went away from the scene; PWs.2 and 3 informed PW.8 (P.N. Shivaprasad) about the incident who came to the spot and took the injured in a jeep to Siddapur Government hospital for treatment; Station House Officer (PW.7) recorded statement of injured/complainant in the hospital on 20.01.2008; since the place of assault was within the jurisdiction of Madikeri Rural Police Station, he sent the statement of the injured and the memo/intimation given by the medical officer to Madikeri Rural Police Station; PW.6-Sub-Inspector of Police of Madikeri Rural Police Station received the complaint along with memo through police constable attached to Siddapur Police Station at 6.30 p.m. on 20.01.2008 and registered a case in Crime No.6/2008 of Madikeri Rural Police Station. PW.10 another Inspector of Police took up further investigation of case and laid the charge-sheet.
3. In order to prove its case, the prosecution in all examined 11 witnesses, got marked 12 exhibits and 5 material objects. The accused were tried for the offences under Sections 323 and 307 r/w Section 34 of IPC. However, they are acquitted of the said offences. The Trial Court convicted accused No.1 only for the offence under Section 323 of IPC. Hence, these appeals by the State.
4. Learned advocates have taken us through the material on record and the judgment of the Court below. They argued in support of their respective contentions.
5. PW.1 is the injured eye witness. PWs.2 and 3 are the eye witnesses to the incident. PW.4 is a hearsay witness. He heard over the phone regarding the assault on PW.1. He is witness for mahazar Ex.P2, under which Pant, T-Shirt of PW.1 are seized. PW.5 is the Police Constable who carried the statement of the victim to Madikeri Rural Police Station from Siddapur Police Station. He also carried memo issued by the medical officer to Madikeri Rural Police Station. PW.6 is the Inspector of Police attached to Madikeri Rural Police Station. Based on the complaint lodged by PW.1, he registered a case and conducted part of the investigation. PW.7 is the Station House Officer of Siddapur Police Station, who recorded the statement of injured at Siddapur Government Hospital and transmitted the same to Madikeri Rural Police Station since the incident had taken place within the jurisdiction of Madikeri Rural Police Station. PW.8 is the Supervisor who received the telephonic information about the assault on PW.1 and shifted the injured to the hospital in a jeep. PW.9 is the Doctor who examined the injured and issued wound certificate as per Ex.P10. He has also given report as per Ex.P9 after examining Kathi (chopper sent to him). He has clarified that PW.1 had sustained one injury on the left shoulder measuring 3 X 1/2 cm and an abrasion on outer margin of the right ear. There were no other injuries. PW.10 is the Inspector who laid the charge-sheet after completion of investigation. PW.11 is the Assistant Director of Forensic Science Laboratory. He gave report as per Ex.P11. Serology report is at Ex.P12. It is specified in the report that blood stains were of human being and they belong to 'O' group.
6. In the matter on hand, the convicted accused has not filed appeal. Even otherwise, we find from the evidence on record that the Trial Court is justified in believing the version of PWs.1 to 3 while convicting accused No.1. All the three eye witnesses including the injured eye witness have specified that it was accused No.1 who assaulted PW.1, consequent upon which PW.1 sustained certain simple injuries. No overt act is alleged against accused No.2. Therefore, the Trial Court is justified in convicting accused No.1 only. It is also justified in exonerating accused No.2.
7. Question to be decided in these appeals is as to whether accused No.1 has committed offence under Section 307 of IPC or not. It is the case of the prosecution that accused No.1 was holding chopper which is a sharp cutting weapon. At that point of time, admittedly PW.1 was indulged in a road laying work. He was not having any arm. He was all alone. PWs.2 and 3 were working about 30 meters away from there. Thus, it is clear that, if really accused No.1 had got any intention to commit offence punishable under Section 307 of IPC, he could have done so, more particularly when PW.1 was unarmed and was all alone; on the contrary, accused No.1 was armed with chopper. Looking to the material on record, it is amply clear that accused No.1 had merely come to the spot for threatening PW.1 and prohibiting him from going ahead with road laying work since he was supposed to do the work in the Coffee Estate in which he was living. The grievance of accused No.1 appears to be that though PW.1 was provided with residential quarters in the Coffee Estate of accused No.2, PW.1 instead of working in the Coffee Estate, joined hands with PW.8 and indulged in the work of laying road. In this context, the incident must have occurred. Thus, the circumstances would clearly reveal that accused No.1 had not intended to commit murder but had intended only to threaten and prohibit PW.1 from proceeding with road laying work. As aforementioned, accused No.1 wanted PW.1 to work in the Coffee Estate since he was allotted a quarters in the Coffee Estate and had occupied the same.
As mentioned supra, the complaint merely states that two unknown persons came and one of such two unknown persons assaulted PW.1 with Kathi (chopper). No overt acts are attributed to another person who accompanied the assailants. Even before the Court, PWs.1 to 3 have clearly deposed that it was accused No.1 who assaulted PW.1 with Kathi and it was he who threatened PW.1. Not even a minute overt act is attributed to accused No.2. Therefore, the Trial Court is justified in acquitting accused No.2.
8. Hence, we are of the clear opinion that the Trial Court is justified in concluding that there is no intention on the part of the accused to commit any offence than the offence under Section 323 of IPC. The wound certificate –Ex.P10, as aforementioned discloses only one incised wound on the left shoulder measuring 3 X 1/2 cm apart from one abrasion. The injuries are simple in nature. Except aforementioned injuries, no other injury is found on the body of PW.1. The Trial Court having regard to the totality of facts and circumstances, ordered accused No.1 to undergo imprisonment for three months and to pay a fine of Rs.500/-. The accused No.1 has already undergone three months of imprisonment. Under the facts and circumstances, the three months imprisonment ordered by the Trial Court appears to be just and reasonable. Hence, we decline to enhance the sentence of imprisonment imposed on accused No.1. Accordingly, no interference is called for. The appeals fail and the same stand dismissed.