Madaiah @ Chikkamadanaika vs State By Srirangapatna Police ...
2022 Latest Caselaw 3843 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 7TH DAY OF MARCH, 2022

                         BEFORE:

       THE HON'BLE MR.JUSTICE MOHAMMAD NAWAZ

           CRIMINAL APPEAL No.1108 OF 2011


BETWEEN:

MADAIAH @ CHIKKAMADANAIKA,
S/O. LATE MADANAIKA @ NERALE MADAIAH,
AGED ABOUT 67 YEARS,
NAYAKA BY CASTE, AGRICULTURIST,
R/AT NEAR SHAMBHULINGAIAHNA KATTE,
RANGANATHANAGARA,
SRIRANGAPATNA TOWN.                        ... APPELLANT

[BY SMT. ARCHANA MURTHY, ADVOCATE]

AND:

STATE BY SRIRANGAPATNA
POLICE STATION,
REPRESENTED BY S.P.P.
HIGH COURT BUILDING,
BANGALORE.                               ... RESPONDENT

[BY SRI. KRISHNA KUMAR K.K., HCGP]


      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED
30.09.2011 PASSED BY THE P.O., FTC, SRIRANGAPATNA IN
S.C.NO.146/2009-CONVICTING THE APPELLANT/ACCUSED FOR
THE OFFENCE PUNISHABLE UNDER SECTION 307 OF IPC.,
AND THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO S.I.
FOR A PERIOD OF TWO YEARS AND TO PAY FINE OF Rs.10,000/-
(RUPEES TEN THOUSAND ONLY), IN DEFAULT, TO UNDERGO S.I.
FOR A PERIOD OF SIX MONTHS FOR HE OFFENCE PUNISHABLE
UNDER SECTION 307 OF IPC.
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     THIS CRIMINAL APPEAL COMING ON FOR HEARING
THROUGH VIDEO CONFERENCE/PHYSICAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:



                          JUDGMENT

This appeal is preferred by the accused aggrieved

by the Judgment and order passed by the Fast Track

Court, Srirangapatna in S.C.No.146/2009 dated

20.09.2011 convicting and sentencing him for an offence

punishable under Section 307 of IPC.

2. Heard the learned counsel for appellant and

the learned HCGP for respondent-State.

3. The brief facts of the case are that the victim by

name Manjula was given in marriage to one

Pavankumar. In their wedlock, they have two children.

Since one year, Manjula had deserted her husband and

she was residing in her parental home along with her

children. PW.1 is her sister and PW.2 is her mother.

One Rudresha son of the accused was visiting the said

house and he had developed close intimacy with Manjula,

in spite of PWs.1 and 2 advising him not to visit their

house. The accused was under the impression that PW.1

was supporting her sister Manjula to have relationship

with his son-Rudresha. In this background, on

20.05.2008, at about 12 noon, when the victim/PW.1

and PW.2 were returning to their house after washing

clothes in Shambhulingaiahna Katte (stream water), the

accused all of a sudden came near PW.1 and saying that

she has spoiled the life of his son, stabbed on her

abdomen with a knife with an intention to do away with

her life.

4. The victim/PW.1 was got admitted by

PW.2 to General Hospital, Srirangapatna wherein she

was treated by PW.3-Doctor. She was then shifted to

K.R.Hospital, Mysuru, for further treatment. When the

victim was taking treatment at General Hospital,

Srirangapatna, S.H.O. of Srirangapatna Police Station on

receiving the intimation from the said Hospital visited the

Hospital to record the statement of the victim. Since,

the victim was shifted to the K.R.Hospital, Mysuru, he

went to the said Hospital and recorded the statement of

the victim as per Ex.P1. Further, PSI-PW8 on taking

over investigation from PW.4-SHO visited the spot and

drew panchanama as per Ex.P2. Blood stained nighty

and knife produced by PW.2 was seized under Ex.P2.

5. To establish the guilt of the accused, the

prosecution has got examined nine witnesses and got

marked Exs.P1 to P9(a) and MOs.1 and 2. The defence

taken by the accused as per cross-examination of PWs.1

and 2 is that since PW1's sister was having illicit

relationship with one Rudresha i.e., son of the accused,

there was quarrel between PW.1 and her sister Manjula

and on the date of incident, PW.1 sustained injury on

coming into contact with glass pieces.

6. Learned counsel for the appellant has

contended that there are serious contradictions in the

evidence of the prosecution witnesses which go to the

root of the prosecution case. According to PW.1,

immediately after the incident she went to the police

station and from there she went to General Hospital,

Srirangapatna, whereas in her evidence she has not

stated that she has gone to the police station. Further,

according to her, her statement was recorded by the

police at the General Hospital, Srirangapatna whereas

PW.4-SHO has stated that her statement was recorded

at K.R.Hospital, Mysuru. She would further contend that

there is discrepancy with regard to seizure of MO.2-knife.

She contends that even according to prosecution, knife

was not recovered at the instance of the accused. PW2

has stated that the said knife was given to the police in

the Hospital which is contrary to Ex.P2 and the spot

mahazar wherein it is shown that the knife was

recovered at the time of drawing the spot mahazar on

the next day of the incident. She therefore, contends

that in view of these discrepancies in the prosecution

case, benefit of doubt has to be given to the accused.

7. Per contra, learned HCGP has contended that

the victim-PW.1 has clearly stated that the accused

stabbed on her abdomen with a knife. PW.2 is an eye

witness to the incident who was along with PW.1 and

both the witnesses have identified MO.2. He contends

that Doctor-PW.3 who has treated the victim has issued

Wound Certificate-Ex.P3 and according to which, the

injuries sustained are grievous in nature. He further

contends that the accused has stabbed on the vital part

of the body (abdomen) of the victim with an intention to

commit murder and therefore, the Trial Court is justified

in convicting and sentencing the accused for the offence

punishable under Section 307 of IPC.

8. It is no doubt true that there are certain

discrepancies in the prosecution case. PW.1/victim, in

her evidence, has stated that after the accused stabbed

her, she was taken to General Hospital, Srirangapatna

and from there she was shifted to K.R.Hospital, Mysuru,

wherein she was an in-patient for about 14 days. She

has stated that the police visited General Hospital at

Srirangapatna and recorded her statement. However,

according to PW.4, on receiving the intimation regarding

the incident, he visited the General Hospital,

Srirangapatna and he was informed that the injured was

already shifted to K.R.Hospital, Mysuru and therefore, he

reported the same to the PSI who directed him to record

the statement of the injured at K.R.Hospital, Mysuru.

Thereafter, he visited the said hospital and after

confirming from the Doctor that the injured is in a fit

condition, recorded her statement as per Ex.P1 on the

same day between 5.30-6.00 p.m.

9. Another aspect is that PW.1/victim in her

cross-examination has stated that immediately after she

was stabbed by the accused, she went to the Police

Station by walk and from there she was taken to the

hospital in an autorickshaw brought by the police. She

has stated that she went to the police station along with

her mother and informed the police that she was stabbed

by the accused, which was written down by the police.

10. Though PW1 has deposed that her statement

was recorded at General Hospital, Srirangapatna and

prior to that she went to the police station and informed

the police about the incident, the fact remains that even

at the first instance she has informed the police that she

was stabbed by the accused on her abdomen.

Obviously, PW1 had sustained injury on her abdomen

and therefore, the police might have immediately sent

her to the Hospital for treatment which cannot be found

fault with. Insofar as recovery of weapon-MO.2 (knife)

is concerned, admittedly the said knife is not recovered

at the instance of the accused. However, both PWs.1 and

2 have identified the knife as the one from which the

accused inflicted the injury. Inflicting injury to PW.1 with

a knife cannot be doubted in view of the evidence of

PW.1, which is corroborated by the evidence of PW.2.

Therefore, even if the independent witness namely PW.6

has turned hostile, the case of the prosecution cannot be

doubted.

11. Accused was charged for an offence

punishable under Section 307 of IPC. It is the specific

case of the prosecution that the accused with an

intention to do away with the life of PW.1 stabbed on her

abdomen. In Ex.P1, PW.1 has stated that when she

started screaming, one Rangaswamy (PW.6) and her

mother (PW.2) held the accused and snatched the knife

from his hand. Thereafter, the accused stating that he

will commit her murder some other day, fled away from

the scene.

12. PW.1, in her evidence, has nowhere stated

that the accused was held by her mother-PW.2 and

Rangaswamy (PW.6) and knife was snatched from his

hand. If that is so, the accused had an ample

opportunity to stab PW.1 more number of times if really

he had an intention to commit her murder. PW.6 has

denied that he snatched the knife from the accused. He

has been treated hostile. Admittedly, there is one injury

sustained by PW.1. In her cross-examination, PW.1 has

stated that after the incident she went to the police

station, which is about 3/4th of a furlong, by walk.

13. PW.3 is the Doctor, who treated PW.1 and

issued Wound Certificate marked as Ex.P3. Perusal of the

same goes to show that PW.1 sustained an incised

wound over the gastric region 2" x 1½" deep to

abdomen. In his cross-examination, PW.3 has specifically

stated that the Investigating Officer has not shown

MO.2-knife before issuance of Ex.P3-Wound certificate.

Further, he has stated that the depth of the injury cannot

be measured.

14. It is relevant to see that according to

prosecution, PW.1 after taking First Aid treatment at the

General Hospital, Srirangapatna, was shifted to

K.R.Hospital, Mysuru, for higher treatment. PW.1 has

stated that she was admitted at K.R.Hospital, Mysuru, for

a period of 14 days. PW.3-Doctor has stated that PW.1

was referred to higher treatment after providing First

Aid. However, the prosecution has not placed any

medical records or documents in respect of the

treatment given to PW.1 at K.R.Hospital, Mysuru. There

is no material to show that PW.1 took treatment at

K.R.Hospital, Mysuru, for a long period as deposed by

her in her evidence.

15. It is further relevant to mention that PW.1 in

her evidence has stated that when the accused stabbed

on her abdomen, the intestine came out. However, the

same is not stated in Ex.P1. Even PW.3-Doctor who has

given the First Aid treatment to PW.1 has not stated

about the same. On the other hand, he has only stated

that PW.1 has sustained incised wound measuring

2" x 1½" deep to abdomen. PW.2-mother who went

along with PW.1 to the hospital has stated that her

daughter sustained bleeding injuries and her nighty was

blood stained. As already observed, PW.1 in her

cross-examination has stated that immediately after she

was stabbed by the accused, she went to police station

by walk, which is at a distance of 3/4th furlong.

16. On a careful perusal of the entire evidence on

record, it cannot be said that the prosecution has been

able to establish beyond reasonable doubt that the

accused had an intention to commit murder of PW.1 or

that he has caused grievous injury to her.

17. For the forgoing reasons, the conclusion

arrived at by the Trial Court that the accused has

committed an offence under Section 307 of IPC is liable

to be set aside. The accused is liable to be convicted

under Section 324 of IPC.

18. At this juncture, Smt. Archana Murthy,

learned counsel for the appellant submits that the

incident has taken place in the year 2008. At the time of

incident the accused was aged about 65 years and now

he is more than 78 years. He is literally on death bed

and suffering from paralysis. Therefore, she prays to

take a lenient view.

In the facts and circumstances and for the

foregoing reasons, the following:

ORDER

i) The appeal is partly allowed.

ii) The conviction and sentence dated

30.09.2011, passed against the accused for the offence

punishable under Section 307 of IPC, in

SC No.146/2009 on the file of the Presiding Officer, Fast

Track Court, Srirangapatna, is hereby set aside.

iii) The accused is convicted for the offence

punishable under Section 324 of IPC. He is sentenced

to pay a fine of Rs.10,000/- and in default of payment of

fine, he shall undergo Simple Imprisonment for a period

of three months.

Sd/-

JUDGE TL