Sri V.K. Yogesh vs The State Of Karnataka
2022 Latest Caselaw 3580 Kant

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   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 03RD DAY OF MARCH, 2022

                        BEFORE

       THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

           CRIMINAL APPEAL NO. 1078 OF 2011

BETWEEN:
SRI. V.K. YOGESH
AGED 48 YEARS,
SON OF LATE KESHAV UPADYAYA,
RESIDENT OF PRASHANT NILAYA,
KARIKE, BHAGAMANDAL-571 247.
MADIKERI TALUK, KODAGU DISTRICT.
                                          ... APPELLANT
(BY SRI. N. JAGADISH BALIGA , ADVOCATE (PH))

AND:

THE STATE OF KARNATAKA,
REPRESENTED BY THE BHAGAMANDALA POLICE,
KODAGU DISTRICT.
                               ... RESPONDENT

(BY SRI. KRISHNA KUMAR K.K., HCGP (PH))

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C, PRAYING TO SET ASIDE THE ORDER
DATED 24/29.9.11 PASSED BY THE S.J., KODAGU,
MADIKERI,      IN      S.C.NO.69/08-CONVICTING   THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 324 OF
IPC. AND THE APPELLANT/ACCUSED IS SENTENCED TO PAY
A FINE OF RS.15,000-00 (RUPEES FIFTEEN THOUSAND ONLY)
FOR THE OFFENCE P/U/S 324 OF IPC AND ETC.,

      THIS CRIMINAL APPEAL IS COMING ON FOR HEARING
THROUGH VIDEO CONFERENCE/PHYSICAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING;
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                       JUDGMENT

This appeal is preferred by the accused against his

conviction and sentence passed by the trial Court for

offence punishable under Section 324 of IPC.

2. Heard the learned counsel for appellant and the

learned High Court Government Pleader for

respondent/State and perused the material on record.

3. The gist of the prosecution case is that on

26.01.2008 at about 6.15 p.m. in Karike village, within the

limits of Bhagamandala Police Station, when the first

informant/PW-1 was doing contract work of constructing a

canal, which was undertaken from one Bhoruka Company,

the accused came to the spot and picked up quarrel with

him and with an intention to do away with his life, fired at

him with an Air-Gun, which hit on his right leg and

thereby, the accused committed an offence punishable

under Section 307 of IPC.

4. In order to establish the guilt of the accused,

the prosecution in all examined 09 witnesses and got

marked 11 documents and MOs-1 to 3. The defence got

marked Exs.P1 and P2.

5. The learned sessions Judge after appreciating

the oral and documentary evidence on record, acquitted

the accused of the charged offence under Section 307 of

IPC and convicted him for the offence punishable under

Section 324 of IPC. Accused was sentenced to pay a fine of

Rs.15,000/- and in default to pay the fine amount,

sentenced to undergo simple imprisonment for a period of

two months.

6. It is contended by the learned counsel for the

appellant that the prosecution has failed to establish the

guilt of the accused beyond all reasonable doubts. The

evidence of the injured is not corroborated by the medical

evidence. There is discrepancy in mentioning the time of

medical examination of the injured in the wound

certificate/Ex-P6. The recovery of Air-Gun/MO-1 is not

proved since both the panch witnesses have turned hostile.

Though the injured went to the police station to lodge the

complaint, no case was registered immediately which gives

rise to doubt with regard to the genuineness of the

prosecution case. He contends that the trial Court without

appreciating all these aspects has erroneously convicted

the accused and therefore, seeks to allow the appeal.

7. Per contra, the learned High Court Government

Pleader has contended, the victim examined as PW-1 has

categorically stated that the accused has fired at him with

a Air-Gun/MO-1. The said Air-Gun has been seized at his

instance. The evidence of PW-1 is corroborated by the

evidence of eye witnesses namely PWs-3 and 4 and further

corroborated by the medical evidence. He therefore,

contends that the trial Court has appreciated the entire

evidence in the proper perspective and rightly convicted

the accused and there is no illegality committed.

Accordingly, he seeks to dismiss the appeal.

8. The first informant/PW-1 is examined as PW-1.

He has deposed that the work of digging a canal in a place

called Karike, undertaken by his company was going on.

The arecanut garden of the accused was situated near the

said place. On 26.01.2008 at about 5.00 p.m. he was doing

the work along with PWs-2 to 7. At that time, the accused

came and threatened saying that he will commit murder by

firing at them, if stones and mud is thrown in his land. On

the same day, at about 6.30p.m., he once again came to

the spot and fired at him, due to which he sustained injury

to his right leg. He has further stated that he collapsed

and the workers took him in a jeep to Bhagamandala

Police Station. He was asked to lodge a complaint by the

Sub-Inspector of Police. Since, he was not in a position to

write down the complaint, he was taken to District

Hospital, Madikere, wherein, he was treated and then

advised to go to a higher hospital in Mangalore.

Thereafter, he returned to the police station and lodged the

complaint.

9. The complaint lodged by PW-1 is marked as Ex-

P1. In his evidence, PW-1 has corroborated the averments

made in the complaint. One of the workers, who was along

with PW-1 at the time of incident by name

Sri. Sandeep, whose name is very much found in the first

information report, has been examined as PW-4. He has

also deposed in his evidence that accused came to the spot

holding a gun and fired at the leg of PW-1, on account of

which he collapsed and he was taken to the police station

and then to the District Hospital, Madikere.

10. PW-3 is another eye witness. He has also

stated that the accused at about 5.30p.m., came near the

spot where PW-1 was working and threatened him that he

will shoot if the stones and mud is thrown in his land.

Thereafter, at about 6.15p.m., he once again came to the

spot and fired at PW-1 with a gun. PWs-1, 3 and 4 have

identified the gun marked as MO-1. Their evidence is not

shaken in the cross-examination.

11. The learned counsel for the appellant has

contended that as per the Seizure Mahazar-Ex-P2, under

which the pant (MO-2) of PW-1 is seized, the hole is on the

back side of the pant and therefore, he contends that the

evidence of the prosecution witnesses that the accused

shot at PW-1, standing infront of him cannot be believed.

The perusal of the Seizure Mahazar/Ex-P2 shows that the

hole in the pant was on the right side and not exactly on

the back side of the pant. Even otherwise, PW-1 in the

cross examination has denied that he sustained injury on

the back side of his leg. He has stated that he was

standing near the canal at a little higher level and the

accused was standing at the lower level. There is no

material discrepancy elicited in the cross examination of

PWs-1, 3 and 4 to disbelieve the incident in question.

12. PW-6 is the doctor who has treated PW-1 at

District Hospital, Madikere. The wound certificate issued

by PW-6 is marked as Ex-P6, which further corroborates

the evidence of PW-1. As per the wound certificate there is

a single fire arm penetrating injury on the right leg and

lateral side with clotted blood and carboneous shot around

size 0.5cms Though in the wound certificate there is a

mention about the treatment given at AJ Hospital and

Research Centre, Mangalore. However, no documents

pertaining to the said hospital have been produced.

13. The learned counsel for the appellant has

contended that the incident according to the prosecution

has taken place at about 6.30p.m. and according to the

medical Officer/PW-6, the injured came to the hospital at

4.00p.m. and therefore, he contends that it is a serious

discrepancy which go to the root of the prosecution case.

He has further contended that even though the injured has

first gone to the police station after the incident, no case is

registered immediately, which also gives rise to the

genuineness of the prosecution case.

14. A perusal of the wound certificate shows that

there is a mention about the history stating that the injury

is caused due to fire arm shot at 6.15 p.m. on 26.01.2008

in Karike village by one Sri. V.K. Yogesh i.e. the accused

herein, though it is stated that the injured was admitted at

4.00p.m. on 26.01.2008. The learned session Judge has

examined this aspect and observed that there is ample

evidence to show that the accused has sustained injury at

about 6.30p.m. in the evening and thereafter, he was

brought to the District Hospital, Madikeri. Therefore, the

timing mentioned in the wound certificate cannot be a

doubtful circumstance to disbelieve the prosecution case.

15. It is relevant to see that, in Ex-P1 itself the

injured has stated that when he was taken to the police

station, he was not in a position to give any statement and

therefore, he was shifted to the hospital. The same is

corroborated by him in his evidence. Hence, the fact that

not lodging the complaint immediately will not throw any

doubt on the prosecution case, as it is clearly stated by

PW-1 that he was not in a position to give statement and

therefore, he was taken to the hospital and thereafter

returned to the police station and lodged the complaint. It

is pertinent to mention that before the doctor history is

given that the victim sustained injuries on account of gun

shot fired by the accused herein. Therefore, at the earliest

point of time that is before the doctor, the victim has

clearly stated that he sustained injuries on account of the

gun shot fired by the accused.

16. It is the contention of the learned counsel for

the appellant that both the panch witnesses to the Seizure

Mahazar-Ex-P5 have turned hostile and therefore, the

recovery of Air Gun/MO-1 at the instance of the accused

has not been proved. Merely, because the panch witnesses

have turned hostile, the recovery mahazar cannot be

doubted. PW8-the PSI, has categorically stated that the

gun was recovered at the instance of the accused.

Moreover, PWs-1, 3 and 4 have identified the Air

Gun/MO-1. Hence, the said contention of the learned

counsel for the appellant cannot be accepted to disbelieve

the prosecution case.

17. The prosecution has examined PW-9, the

Ballistic expert. He has issued the report as for Ex-P9 and

P10 respectively after examining MO-1. As per the said

report, the gun was in working condition at the time of

examination and the hole marked in the pant was due to

the passage of the lead slug. It is further opined that the

lead slug in Article No.3 i.e. Air Rifle Slug could have been

filed through the Air Rifle in Article No.1.

18. It is also contended by the learned counsel for

the appellant that in the cross examination, PW-4 has

admitted that in the month of January, normally it

becomes dark at about 6.15 p.m. It is therefore, his

contention that the victim or the alleged eye witnesses

could not have seen the accused firing from a gun. The

witnesses have clearly stated that at about 5.00 p.m., the

accused came to the spot and threatened PW-1 and once

again came at 6.15 p.m. and fired at the victim with a gun.

When there is a categorical statement made by the victim

as well as the eye witnesses namely PWs-3 and 4 their

evidence cannot be disbelieved. Moreover, the accused is

known to PW-1 as well as PWs-3 and 4.

19. The learned Sessions Judge having carefully

examined the entire evidence and material on record has

come to the conclusion that the accused has fired the air

rifle or gun at the complainant on his leg. It is further

concluded that there is no cogent evidence to prove that

the accused has fired the gun shot with an intention to kill

the complainant. The accused was therefore acquitted of

the offence punishable under Section 307 of IPC and

convicted for the offence punishable under Section 324 of

IPC. I see no illegality in appreciating the evidence by the

trial Court. On re-appreciation of the oral and

documentary evidence, I find that there is sufficient

evidence against the accused for having committed an

offence punishable under Section 324 of IPC. Hence the

following:

ORDER

Criminal appeal is dismissed.

Sd/-

JUDGE JY