Mr. L Puttaramegowda vs The State
2022 Latest Caselaw 3274 Kant

                                1


       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 25TH DAY OF FEBRUARY, 2022

                          BEFORE

     THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

            CRIMINAL APPEAL No.710/2011
BETWEEN:

1.     MR. L. PUTTARAMEGOWDA
       S/O LATE LINGEGOWDA @
       DODDEEREGOWDA
       AGED ABOUT 62 YEARS
       NO.35, GAJANURU VILLAGE & POST
       KASABA HOBLI
       MALAVALLI TALUK, MANDYA DISTRICT

2.     MR. G.P. RAMESHA
       S/O L. PUTTARAMEGOWDA
       AGED ABOUT 30 YEARS
       PRESENTLY RESIDING AT
       NO.20, LAKSHMINARAYANA NIVASA
       1ST MAIN ROAD, DEVARACHIKKANAHALLI
       BEHIND ROYAL SHELTER
       BENGALURU-560 072
                                           ....APPELLANTS
(BY SRI. S. NAGARAJA, ADVOCATE FOR APPELLANT-2,
    V/O DTD:21.04.2021 APPEAL AGAINST A1 ABATED)

AND:

THE STATE
BY MALAVAHALLI RURAL
POLICE STATION
                                            .... RESPONDENT
(BY SRI. K.S. ABHIJITH, HCGP)
                                 2

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF   CR.P.C.  PRAYING   TO    SET   ASIDE  THE   ORDER
DATED:08.06.2011 PASSED BY THE ADDL. S.J., MANDYA IN
S.C.NO.152/2009    -   CONVICTING      THE   APPELLANT
NO.1/ACCUSED NO.1 FOR THE OFFENCES P/U/S 326 AND THE
APPELLANT NO.2/ACCUSED NO.2 FOR THE OFFENCE P/U/S 324
OF IPC.

     THIS CRIMINAL APPEAL HAVING BEEN HEARD    AND
RESERVED FOR JUDGMENT ON 15.02.2022, COMING ON FOR
'PRONOUNCEMENT JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:

                           JUDGMENT

The appellants have filed this appeal under Section

374(2) of Cr.P.C. challenging the judgment of conviction

and order of sentence passed by the Additional Sessions

Judge, Mandya in S.C.No.152/2009 dated 08.06.2011,

whereby the learned sessions judge has convicted the

accused No.1/appellant No.1 for the offence under Section

326 of IPC, while accused No.2/appellant No.2 is convicted

for the offence under Section 324 of IPC.

2. For the sake of convenience parties herein are

referred to their original ranks occupied by them before the

trial Court.

3. The brief factual matrix leading to the case are

that on 03.05.2009 at about 9.00 p.m, the accused No.1

was abusing complainant in filthy language. As such the

complainant called one Javaregowda and his brother

Madegowda requesting them to question accused No.1 as to

why he is abusing them. Then the son of accused No.1 i.e.,

accused No.2 came there and pushed down the complainant

in order to assault him. Then the son of complainant rushed

to the spot in order to rescue his father and at that time

accused No.1 stabbed the son of complainant with knife on

his abdomen and chest thereby caused grievous injuries. It

is also alleged that accused No.2-Ramesh has also stabbed

the complainant with knife on his chest and the witnesses

pacified the dispute and snatched away the knives. It is

also alleged that on account of previous animosity the

accused have assaulted the complainant and his son by

attempting on their lives. As such the complainant has filed

the complaint as per Ex.P1 and on the basis of the

complaint, a case was registered in Cr.No.50/2009. Then

investigating officer investigated the crime. He has also

visited the spot, drawn mahazar, recovered the material

objects and recorded statement of witnesses and having

found that there is sufficient material as against accused,

he has submitted the charge sheet against the accused for

the offence under Section 307 read with Section 34 of IPC.

After submission of the charge sheet the accused were

arrested and were produced before the Court and

subsequently, they were enlarged on bail. The prosecution

papers were also furnished to the accused after hearing

both sides.

4. Learned sessions judge has framed charge under

Section 307 read with Section 34 of IPC and same was read

over and explained to the accused. They pleaded not guilty

and claimed to be tried. To prove the guilt of the accused

prosecution has examined in all 14 witnesses as PW.1 to

PW.14 and placed reliance on documents marked at Ex.P1

to P8 and 3 material objects as Mos.1 to 3.

5. After conclusion of the evidence of the

prosecution the statement of accused under Section 313 of

Cr.P.C. is recorded to enable the accused to explain the

incriminating evidence appearing against them in the case

of the prosecution. The case of the accused is of total denial

and they did not choose to lead any oral or documentary

evidence. On the contrary Ex.D1 and D2 were got marked

during the cross examination of the witnesses. After

hearing the arguments the learned sessions judge came to

a conclusion that the prosecution has failed to establish the

offence under Section 307 read with 34 of IPC. However, he

came to a conclusion that prosecution has proved the

offence under Section 326 of IPC against accused No.1 and

under Section 324 of IPC as against accused No.2 and

accordingly, convicted them by imposing sentence of

imprisonment as well as fine.

6. Being aggrieved by this judgment of conviction

the appellant-accused have filed this appeal. It is also

important to note here that during the pendency of the

appeal on 21.04.2021, as accused No.1/appellant No.1 is

reported to be dead, the case against him stands abated

and case against accused No.2 alone being prosecuted.

7. Heard the arguments advanced by the learned

advocate for the appellant and learned HCGP. I have also

perused the records.

8. Learned advocate would contend that the

impugned judgment of the trial Court is against the law and

probabilities and the trial Court has rightly come to a

conclusion that there is no motive to convict under Section

307 of IPC but wrongly convicted the accused under Section

326 and 324 of IPC. He would further submit that there is

discrepancy in the evidence regarding the actual time of the

incident and the evidence is not properly appreciated. He

would further contend that all the witnesses are interested

and relatives and the case is an outcome of the village

politics. He would also contend that accused No.2 is a

practicing lawyer and only in order to tarnish his image, a

false case has been lodged against him. Hence, he would

contend that considering the discrepancy in the evidence,

inconsistent stand and delay in recording the statement of

witnesses, it is evident that prosecution has failed to bring

home the guilt of the accused and as such he would seek

for allowing the appeal by acquitting accused-appellant

No.2.

9. Per contra learned HCGP would submit that

Pws.1 and 2 are the injured witnesses and have supported

the case of the prosecution and there is no reason for

discarding their evidence. He would contend that Pws.3 to 5

are eye witnesses and their evidence is corroborated with

each other and the accused/appellant No.2 has taken plea

of alibi which is not established and that itself disclose his

presence at the spot. He would further contend that the

learned sessions judge appreciated the oral and

documentary evidence in proper perspective and has

imposed reasonable sentence which does not call for any

interference as it does not suffer from any perversity. As

such he would seek for dismissal of the appeal.

10. To prove the guilt of the accused the prosecution

has examined in all 14 witnesses. Pw.1 and Pw.2 are the

injured witnesses. Pw.3-Javaregowda, Pw.4-Madegowda

and Pw.5-Dodda Marigowda are the eye witnesses. Pw.5

has partially turned hostile but he has deposed regarding

injuries been caused to Pws.1 and 2. Pw.6-Ravi is another

eye witness but he has turned hostile. However, his

evidence establish that Pws.1 and 2 did sustained injuries

though he has turned hostile regarding witnessing the

incident. Pws.7 and Pw.8 are the spot and seizure

witnesses. Pw.9-M.V.Srinivasaiah is the police constable

who has deposed regarding receiving the complaint and

issuing FIR. Pw.10 has deposed regarding recording the

statement of the injured-Pw.2. Pw.11-Govindaraju.B and

Pw.12-T.Venkatesh are the investigating officers.

Pw.13-Dr.G.N.Pramod and Pw.14-Dr.Raju are the medical

officers who have treated the injured. Ex.P1 is the

complaint, while Ex.P2 is the spot mahazar. Ex.P5 is the FIR

and Ex.P6 and Ex.P7 are the wound certificates. Ex.P8 is

the FSL report, while Ex.P9 is the MLC book. Ex.D1 and D2

are the two photos marked during the cross examination.

Mos.1 and 2 are the two knives alleged to have been used

by the accused, while Mo.3 is the banian said to have been

used by the injured Pw.2.

11. According to the prosecution on 03.05.2009 at

9.00 p.m, accused No.1 was abusing the complainant in

filthy language and as such complainant called one

Javaregowda and his brother Madegowda and asked them

to question the accused No.1 in this regard. It is further

alleged that at that time son of accused No.1 i.e., accused

No.2 came there and pushed down the complainant with an

intention to assault him. Then the son of the complainant

i.e., Pw.2 rushed to the spot to rescue his father and at that

time accused No.1 stabbed the son of the complainant with

knife on his abdomen and chest causing injuries. It is also

alleged that accused No.2 had also stabbed the complainant

with knife on his chest and the witnesses Pws.3 to 5 rushed

to the spot and pacified the dispute and Javaregowda

snatched away the knives. It is also alleged that the

incident has occurred in view of the previous enmity

pertaining to the incident took place 3 days earlier.

12. Pw.1 is the complainant who has sustained

injuries in the case. In his evidence he deposed that 3 days

earlier accused No.2 while carrying water in a pot had hit

on his knee with water vessel and at that time, verbal

exchange had taken place. He further deposed that on

account of this accused No.1 is said to have been abusing

the complainant and therefore, he had asked Cws.3 to 5 to

enquire in this regard and at that time accused No.2 came

there and pulled him down.

13. He had further deposed that when his son Pw.2

came there to rescue him, accused No.1 stabbed him on

stomach and chest with knife and when he tried to interfere

accused No.2 assaulted him with knife. He has also deposed

regarding the witnesses gathered there pacifying the

dispute and snatching away the knives-Mos.1 and 2. During

the cross examination, it is elicited that no complaint was

lodged in respect of earlier incident but that itself cannot be

a ground for discarding his evidence. The witness was cross

examined at length but nothing worthy was elicited so as to

discard his evidence regarding assault. His evidence clearly

discloses that no admissions or contradictions are elicited so

as to discard his testimony. He has specifically deposed the

nature of assault as per the case of the prosecution. Further

merely the pendency of the civil dispute between the

daughters of his brother and accused, is not a ground for

discarding his evidence. Nothing was elicited so as to

disclose that Pw.1 had any malice to falsely implicate the

accused persons. During the cross examination, it is

suggested that when the alleged incident has taken place,

during the said period accused No.2 was not in station and

thereby a plea of alibi is set up for accused No.2. When

accused No.2 is setting up plea of alibi that too he being an

advocate, the burden is on him to establish that he was

somewhere else and his presence at the spot was

practically impossible. But no such evidence is placed to

substantiate the said contention. It is settled law that when

plea of alibi is taken by accused No.2 under Section 103 of

the Indian Evidence Act, 1872, the burden is on him to

prove the same, but accused No.2 has not made any

attempts to substantiate his contention.

14. Apart from that the other defence is taken that

while removing the coconut shells the complainant has

sustained injuries due to coming in contact with crowbar

fixed on the ground for removal of the coconut shells. But

the said contention cannot be accepted as it is hard to

accept that at late night the complainant and his son were

removing coconut shells. Apart from that the incident has

occurred infront of their house and there it is elicited that

the crowbar is fixed to the ground in order to remove the

coconut shells normally in the field. Further it is not the

case of the accused that the crowbar was fixed infront of

the house of accused for removal of the coconut shells.

Hence, the evidence clearly discloses that the evidence of

Pw.1 is not at all impeached.

15. Pw.2 is another injured and son of Pw.1. He has

deposed that on hearing abusing words his father asked

Cws.3 to 5 to question accused No.1 and at that time

accused No.2 came there and assaulted his father. He

further deposed that when he went there to rescue his

father, accused No.1 assaulted on his right chest and

abdomen and he sustained injuries and when his father

intervened accused No.2 assaulted his father with knife.

Though this witness was also cross examined at length,

nothing was elicited so as to impeach his evidence.

16. Pw.3 has deposed that he had seen accused

No.2 beating Cw.2 with hands and at that time accused

No.1 stabbed Cw.2 on his stomach with knife and then

accused No.2 stabbed on the chest of the complainant. An

attempt is made in the cross examination to establish that

he is friend of the brother of Pw.1 i.e., Cw.4 but he denied

the said suggestion. Pw.4 is the brother of the complainant

and he has also deposed regarding the assault made by

accused Nos.1 and 2 by knife on complainant and Cw.2 i.e.,

his son. His evidence is also consistent in the case of the

prosecution.

17. Pws.5 and 6 are two more eye witnesses.

Though they have denied witnessing the assault personally,

but, however there evidence clearly disclose that

complainant has secured them and when they went to the

spot, Pw.2 was lying by sustaining injury on his abdomen

and accordingly complainant has also sustained injuries.

Though they have turned hostile to the case of the

prosecution regarding witnessing the incident but that itself

is not sufficient to discard evidence as other part of the

evidence disclose that they have seen both Pws.1 and 2 had

sustained injuries and stated regarding shifting them to the

hospital.

18. Pws.7 and 8 are the spot mahazar witnesses and

they have deposed regarding mahazar done by them and

seizure of the material objects. Pw.9 has deposed regarding

registration of the case and issuing FIR while Pw.10

deposed regarding recording the statement of the Pw.2 in

the hospital and Pws.11 and 12 are the investigating

officers.

19. Pws.13 and 14 are the material witnesses. Pw.13

is the Doctor of Cauvery hospital and he has deposed that

Cw.2 i.e., Pw.2 was brought with the history of stab injuries

and he found penetrating would over left anterior

abdominal wall and cut lacerated wound over left side of

chest. He has specifically deposed first injury was grievous

and second injury was simple in nature. This witnesses was

cross examined but nothing was elicited and it is elicited

that such injury can be caused if a person falls on sharp

edged crowbar but as observed above, it is to be noted

here that admittedly incident has taken place at 10.00

p.m., in night. In such an odd hour it is hard to accept that

Pws.1 and 2 were engaged in peeling of coconut shells. No

such suggestions have been made and only a casual

suggestion has been made in this regard.

20. Pw.14 is another Doctor of Malavally hospital and

he has deposed regarding treating Pws.1 and 2 as out

patients and Pw.1 sustained simple injury. There is no

reason for discarding the evidence of Pws.13 and 14 and

Pw.14 has categorically stated that injuries can be caused

only by knife and no reasons are forthcoming for these two

witnesses to give false evidence in this regard.

21. The evidence on record discloses that both Pws.1

and 2 have sustained injuries in view of the assault made

by accused Nos.1 and 2. The same is also established by

the medical evidence and witnesses. The nature of injuries

discloses that Pw.2 has sustained grievous injuries due to

assault by accused No.1, while Pw.1 has sustained simple

injury due to assault by accused No.2.

22. The learned sessions judge considering the

evidence on record has come to a conclusion that

prosecution has not established the offence under Section

307 of IPC but came to a conclusion that accused No.1 has

committed an offence under Section 326 of IPC while

accused No.2 has committed the offence under Section 324

of IPC and accordingly, convicted them. It is also important

to note here that the State has not challenged this finding

of the learned sessions judge in respect of convicting the

accused under Sections 326 and 324 of IPC rather than 307

of IPC.

23. Accused No.1 is sentenced to suffer rigorous

imprisonment for a period of 2 years with fine of Rs.5,000/-

with default clause. Admittedly accused No.1 is now

reported to be dead and case against him is abated.

Accused No.2 is sentenced to rigorous imprisonment for a

period of 3 months with fine of Rs.5,000/- with default

clause. As such now the appeal is restricted in respect of

appellant No.2/accused No.2. The offence under Section

324 of IPC is punishable with imprisonment for a term

which may extend to 3 years or with fine or both. Hence, it

is not mandatory for imposing sentence of imprisonment.

The records further disclose that appellant No.2/accused

No.2 was in custody from 27.08.2009 to 14.09.2009 for a

period of 19 days.

24. Learned counsel for the appellant would contend

that the evidence lead by the prosecution is inconsistent

and there are lot of material contradictions. He would also

contend that all the witnesses are relatives. In this context

learned HCGP has placed reliance on a decision reported in

the case of State of Uttar Pradesh vs. Naresh and

others reported in (2011) 4 SCC 324 and invited the

attention of the Court to paragraphs 29 and 30.

"29. A mere relationship cannot be a factor to affect credibility of a witness. The evidence of a witness cannot be discarded solely on the ground of his relationship with the victim of the offence. The plea relating to relatives' evidence remains without any substance in case the evidence has credence and it can be relied upon. In such a case the defence has to lay foundation if plea of false implication is made and the Court has to analyse the evidence of related witnesses carefully to find out whether it is cogent and credible. [Vide Jarnail Singh, Vishnu v. State of Rajasthan and Balraje]

"30. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about

the credibility of the witness and record a finding as to whether his deposition inspires confidence.

"9. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility."

Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited. [Vide: State v.

Saravanan, Arumugam v. State, Mahendra Pratap Singh v. State of U.P. and Sunil Kumar Sambhudayal Gupta (Dr.) v. State of Maharashtra]

The Hon'ble Apex Court has clearly held that mere

relationship cannot be a factor to affect the credibility of the

witness. Further Pws.1 and 2 are the injured and their

evidence cannot be brushed aside in a mechanical way that

too when accused No.2 failed to establish plea of alibi.

Further minor discrepancies are bound to occur which do

not goes to the root of the case.

25. Learned counsel for the appellant would contend

that accused No.2 is a practicing lawyer and in view of

village politics he has been targeted by falsely implicating in

this case. But the evidence does disclose that his presence

at the spot and he has taken defence of plea of alibi which

he has failed to establish. Under such circumstance now it

cannot be argued that the prosecution has failed to

establish his guilt. The trial Court has already showed

leniency. However, looking to the nature of simple injury

caused by accused No.2, in my considered opinion

imprisonment for a period of 3 months appears to be little

harsh and considering these aspects in my considered

opinion, the imprisonment which he has undergone can be

set off by enhancing the fine to Rs.25,000/- which will

serve the purpose. Only to this extent regarding the

sentence of imprisonment, the appeal needs to be allowed

and accordingly, I proceed to pass the following:

ORDER

The appeal is allowed in part.

          The     judgment        of    conviction    passed     in
     S.C.No.152/2009        by     the    Additional      Sessions

Judge, Mandya dated 08.06.2011 is confirmed.

However, the sentence of imprisonment of 3 months passed against accused No.2 is modified and he is sentenced to undergo imprisonment for a period which he was in custody with enhanced fine of Rs.25,000/-. In default of payment of fine accused shall under go Simple imprisonment for 3 months. Out of the fine amount recovered Rs.5,000/- shall be paid to the complainant and Rs.10,000/- shall be paid to PW.2 by way of compensation and balance Rs.10,000/- shall be credited to the State Treasury.

Sd/-

JUDGE

NS