Shri. Akhilahammad S/O ... vs Madar S/O Alabax Beparti
2022 Latest Caselaw 4948 Kant

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

        DATED THIS THE 17TH DAY OF MARCH, 2022

                         PRESENT

      THE HON'BLE MR.JUSTICE SURAJ GOVINDARAJ

                             AND

           THE HON'BLE MS.JUSTICE J.M.KHAZI

           CRIMINAL APPEAL NO.100354/2017
                        C/W
           CRIMINAL APPEAL NO.100262/2017

 CRL.A. NO.100354/2017:

 BETWEEN:

 SHRI. AKHILAHAMMAD,
 S/O KUTUBUDDIN MUNAVALLI
 AGE: 30 YEARS,
 OCC: DRIVER,
 R/O: NEHRU NAGAR, ALNAVAR,
 TALUK & DISTRICT: DHARWAD
 (COMPLAINANT BEFORE THE TRIAL COURT)
 (APPELLANT BEFORE THIS HIGH COURT)
                                        ...APPELLANT
 (BY SRI. D.B.KARIGAR, ADV.)

 AND:

 1.     MADAR
        S/O ALABAX BEPARI,
        AGE: 30 YEARS,
        OCC: DRIVER,
        R/O: NEHRU NAGAR,
        ALNAVAR,
        TALUK & DISTRICT: DHARWAD

 2.     IMRAN
        S/O ALABAX BEPARI,
        AGE: 34 YEARS,
                            2


     OCC: BUSINESS,
     R/O: NEHRU NAGAR,
     ALNAVAR,
     TALUK & DISTRICT: DHARWAD

3.    HAZARATH
      S/O ALABAX BEPARI,
      AGE: 25 YEARS,
      OCC: DRIVER,
      R/O: NEHRU NAGAR,
      ALNAVAR,
      TALUK & DISTRICT: DHARWAD
      (ACCUSED NO.1 TO 3 BEFORE THE TRIAL COURT)
      (RESPONDENTS BEFORE THIS HON'BLE COURT)
                                           ...RESPONDENTS
(BY SRI. K.M.SHIRALLI, ADVOCATE FOR R1-R3;
    SRI.V.M.BANAKAR, ADDL. S.P.P. FOR R4)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372
OF CR.P.C., PRAYING TO THE NECESSARY ORDER MAY KINDLY
BE PASSED TO MODIFY THE IMPUGNED JUDGMENT AND ORDER
OF CONVICTION AND SENTENCE PASSED BY THE HON'BLE
PRINCIPAL DISTRICT & SESSIONS JUDGE, DHARWAD, IN ITS
S.C.NO.60/2017 DATED 31.07.2017 AND THEREBY IMPOSE
MAXIMUM PUNISHMENT TO THE ACCUSED NO.1 TO 3 BY
ALLOWING THIS APPEAL AND THEREBY IMPOSE PUNISHMENT
FOR THE OFFENCE PUNISHABLE UNDER SECTION 307 OF THE
IPC.

CRL.A. NO.100262/2017:

BETWEEN:

1.   MADAR ALLABHAX BEPARI,
     AGE: 31 YEARS,
     OCC: DRIVER,
     R/O NEHARU NAGAR,
     ALNAVAR,
     TQ: DHARWAD,
     DISTRICT: DHARWAD

2.   IMRAN ALLABHAX BEPARI,
     AGE: 35 YEARS,
     OCC: HOTEL BUSINESS,
     R/O NEHRU NAGAR,
     ALNAVAR,
                                3


      TQ: DHARWAD,
      DISTRICT: DHARWAD

3.    HAZARATH ALLABHAX BEPARI,
      AGE: 26 YEARS,
      OCC: COOLIE,
      R/O: NEHRU NAGAR,
      ALNAVAR,
      TQ: DHARWAD,
      DISTRICT: DHARWAD
                                            ...APPELLANTS
(BY SRI. K.M.SHIRALLI, ADV.)

AND

THE STATE OF KARNATAKA
BY ALNAVAR P.S
R/BY S.P.P.
THE HIGH COURT OF KARNATAKA,
BENCH DHARWAD.
                                            ...RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL. S.P.P.)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER OF CONVICTION DATED 31.07.2017 PASSED IN
S.C.NO.60/2017 BY THE HON'BLE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, DHARWAD AND ACQUIT THE APPELLANTS OF
THE OFFENCES WITH WHICH THEY HAVE BEEN CONVICTED
AND SENTENCED.

     THESE CRIMINAL APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 21.02.2022, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, J.M.KHAZI J.,
DELIVERED THE FOLLOWING:

                       JUDGMENT

Cr.A.No.100262/2017 is filed by accused Nos.1 to 3

under Section 374 (2) of Code of Criminal Procedure, 1973

(hereinafter referred to as "CrPC" for short) challenging

their conviction and sentence the accrued for the offences

punishable under Sections 323, 325, 504, 506, 109 read

with Section 34 of the Indian Penal Code, 1860

(hereinafter referred to as "IPC" for short).

2. On the other hand Crl.A.No.100354/2017 is filed

by complainant under Section 372 of Cr.PC with a prayer

to the impugned Judgment and order of conviction and

sentence for the offence punishable under Section 307 IPC

and impose maximum punishment.

3. For the sake of convenience the parties are

referred to by their rank before the trial Court.

4. The allegations against the accused are that on

23.09.2015 at 5.00 p.m., while complainant Akhil Ahmed

Munavalli and his brother CW-4 Khalil Ahmed Munavalli

were purchasing Banana from the push cart of CW-5

Rafeeq Ahmed, in front of complex of Alnavar Pattan

Panchayathi, accused Nos.1 to 3 picked up quarrel with

them. Accused No.1 abused complainant saying that he

told the officials of Telson company of Belagavi not to give

him the job of Driver in the said company and assaulted

him with hands. At this stage accused No.2 offered a knife

to accused No.1 and instigated him to assault the

complainant with the knife and kill him. Accused No.1 took

the knife from the hands of accused No.2 and assaulted

the complainant on the left portion of his neck and both

elbows and middle finger of right hand and caused

bleeding injuries. Accused No.2 and 3 assaulted the

complainant with hands and thereby Accused Nos.1 to 3

attempted to cause his death. Accused Nos.1 to 3 also

gave threat to the life of complainant and thereby

committed the offences punishable under Sections 323,

504, 506, 109, 307 read with Section 34 of IPC.

5. Charge is framed against accused Nos.1 to 3 for

the offences punishable under Sections 323, 307, 504,

506, 109 read with Section 34 of IPC. They have pleaded

not guilty and claimed trial.

6. In support of the prosecution case, 16 witnesses

are examined as PWs.1 to 16, Exs.P1 to 21 and MO.No.1

are marked.

7. During the course of their statement under

Section 313 of Cr.P.C., accused have denied the

incriminating evidence. They have not chosen to lead

defence evidence.

8. The trial Court has convicted the accused Nos.1

to 3 for the offences punishable under Sections 323, 325,

504, 506, 109 r/w Section 34 IPC.

9. We have heard elaborate arguments of both

sides and perused the records.

10. During the course of arguments, the learned

counsel representing the accused submitted that impugned

Judgment of conviction and sentence rendered by the trial

Court is contrary to law, evidence, facts and probabilities

of the case. The learned Sessions Judge has gravely erred

in convicting the accused for the offences punishable under

Sections 323, 504, 506, 109 read with Section 34 of IPC,

on the testimony of prosecution witnesses which is

contradictory, unreliable and artificial. The trial Court has

erred in placing reliance on the testimony of PWs-1, 2, 5

and 6 who are relatives and interested witnesses.

11. The learned counsel would further submit that

though the alleged incident has taken place on

23.09.2015, complaint is filed on 26.09.2015 and the

reason for the delay is not explained. The trial Court has

not appreciated this fact. The trial Court has failed to

appreciate the evidence in the light of the fact that there

was enmity between accused persons and PWs.1, 3, 5 and

6 and as such the accused persons are falsely implicated

by them. The evidence regarding the recovery of weapon

is artificial and unreliable and prays to allow the appeal

and set aside the conviction and sentence.

12. On the other hand, in Crl.A.No.100354/2017,

the learned counsel representing the complainant argued

that even though the evidence placed on record

establishes the motive for the accused persons to attack

the complainant and assaulting him on the vital part with

the intention of causing his death resulting in his

sustaining grievous injury, the learned Sessions Judge has

erred in not convicting the accused persons for the

offences punishable under Section 307 IPC.

13. He would further submit that the eyewitnesses

to the incident have supported the prosecution case except

for PW-4. While the trial Court has come to a correct

conclusion that the allegations against the accused are

proved beyond a reasonable doubt, it has erred in holding

that offence under Section 323 instead of 307 IPC is made

out. The trial Court has shown leniency to the accused

persons which they do not deserve. They have acted in a

high-handed manner and in broad daylight attacked the

complainant with a knife on his vital part and as such

provision of Section 307 IPC is attracted and prays to allow

the appeal and prays to convert the conviction for the

offence punishable under Section 307 IPC.

14. On the other hand, the learned Additional State

Public Prosecutor supporting the impugned Judgment and

order of conviction and submitted that the State has not

challenged the same for enhancement of the punishment

and sought for dismissal of both appeals.

15. The points that arise for our consideration are:

(i) Whether the accused Nos.1 to 3 have made out any justifiable grounds to interfere with impugned judgment, order of conviction and sentence.

(ii) Whether the complainant has made out any justifiable grounds to convert the conviction for the offence punishable under Section 325 IPC into 307 IPC ?

(iii) What order ?

16. The findings on the above points are:

Point No.(i): In the Negative

Point No.(ii): In the Negative

Point No.(iii): As per the final order for the following:

REASONS

17. Point Nos.(i) & (ii): Complainant has filed

Crl.A.No.100354/2017 seeking conviction for the offence

punishable under Section 307 IPC instead of 325 IPC

contending that even though the evidence establishes the

fact that accused persons assaulted the complainant with

the intention of causing his death, the trial Court has erred

in reducing the gravity of the offence to 325 IPC.

18. On the other hand, the accused have filed

Crl.A.No.100262/2017 contending that the evidence placed

on record is not sufficient to prove the charges levelled

against them and that the prosecution has failed to prove

the motive. On the other hand, they have specifically

contended that on the date of the incident, the

complainant was eve-teasing some girls and he was

assaulted by the girls and their relatives. The complainant

did not file any complaint against them, as he was

ashamed of the said fact. They have specifically contended

that when the fact of the complainant being assaulted by

the girls and their relatives for eve-teasing came to be

known to everyone, under a mistaken notion that the

accused persons were responsible for spreading the said

news, as an afterthought the complainant has chosen to

file the complaint at a belated stage.

19. According to the prosecution, the motive for

the accused persons to assault the complainant is that the

complainant is working as a driver in Telson Company at

Belgaum and even though accused No.1 applied for the

post of driver, he did not get an appointment and he was

under an impression that the complainant gave an adverse

opinion about him and therefore he did not get the job and

because of the said reason, on 23.09.2015 when the

accused persons came across the complainant, they

assaulted him.

20. The accused have not disputed the fact that

the complainant was working as a driver in Telson

Company at Belgaum. They have also not disputed the fact

that accused No.1 also applied for the post of driver, but

he did not get the job. It is also relevant to note that the

accused have not disputed the motive attributed by the

complainant for them to assault him i.e., after accused

No.1 did not get the job of driver, he nursed ill will against

the complainant, thinking that he had given an adverse

opinion about him and therefore, he did not get the job

and those were the reasons for the accused persons to

assault the complainant. It is also relevant to note that the

accused persons do not dispute the presence of the

complainant on 23.09.2015 at Alnavar and the fact that he

had come to the town for celebrating the Ramzan festival,

which was due on 25.09.2015.

21. Out of the witnesses examined before the

Court, PW-1 Akhil Ahmed is the complainant/injured, PW-3

Khalil Ahmed, PW-4 Rafeeq Ahmed, PW-5 Mubarak

Khanapur and PW-6 Muzafar Khanapur are eyewitnesses to

the incident. Except for PW-4 Rafeeq Ahmed all the other

witnesses have supported the prosecution case so far as

the actual incident is concerned. The evidence of PW-1, 3,

5 and 6 prove the fact that on 23.09.2015 at around 5.00

p.m. complainant and PW-3 were purchasing banana from

the pushcart of PW-4 Rafeeq Ahmed and at that time,

accused Nos.1 to 3 came and confronted the complainant.

It is relevant to note that PW-4 Rafeeq Ahmed is a banana

vendor and he sells bananas in a pushcart opposite the

Pattan Panchayati complex. Even though PW-4 Rafeeq

Ahmed has turned hostile, he has not disputed the fact

that everyday he sells bananas in a pushcart opposite the

Pattan Panchayati complex. However, he has denied that

on the date of incident also, he was selling bananas.

22. During his cross-examination by the

prosecution, PW-4 Rafeeq Ahmed has stated that on

23.09.2015 he did not do the business in his pushcart. As

evident from the testimony of the prosecution witnesses

during 2015, the Ramzan and Ganesha festival fell on the

same day and therefore, the police were overpressed and

they did not come to the hospital to record the statement

of the complainant immediately after the incident. While

the evidence of PWs-1, 3, 5 and 6 establish the fact that

on the date of the incident, PW-4 Rafeeq Ahmed was doing

business in his pushcart. Even though during his cross-

examination by the prosecution, PW-4 Rafeeq Ahmed has

deposed that on the date of the incident he did not do the

business, having regard to the fact that it was a festival

season and as a banana vendor, it would be reasonable to

expect him to have his business on the date of incident.

23. PW-4 has not given any specific reason as to

why on the date of the incident, he did not do the banana

business. On the other hand during his cross-examination

by the prosecution, he has admitted that his relationship

with the accused persons is very cordial and accused

persons would come to his shop for purchasing fruits. This

goes to show that in order to help the accused persons, he

has chosen to depose falsehood and he has not supported

the prosecution case. However, the testimony of PWs-1, 3,

5 and 6 prove the fact that on the date of the incident PW-

4 was doing banana business and he was very much

present when the incident took place.

24. In fact the evidence of PW-16 Basavaraj

Halabannanavar establishes the fact that he has recorded

the statement of PW-4 Rafeeq Ahmed, wherein he has

stated that he was very much present when the incident

took place. Except suggesting that PW-4 Rafeeq Ahmed

has not given a statement before him as per Ex.P4, the

defence has not made any suggestions to PW-16 that

when the incident took place, PW-4 Rafeeq Ahmed was not

present at the scene of occurrence and on that day he did

not do the banana vending business. Discussing about the

culture of compromise and the witnesses turning hostile to

nullify the effect of other admissible evidence, the Hon'ble

Supreme Court reported in (2017) 1 SCC 5291, has held

that even where some of the witnesses have turned hostile

if the other evidence is sufficient, a conviction could be

based on such evidence. It is very common in India for the

witnesses to turn hostile for various reasons including to

help accused persons. In spite of the fact that PW-4

Ramesh and others Vs. State of Haryan

Rafeeq Ahmed has not supported the prosecution case,

through the testimony of PWs-1, 3, 5 and 6 as well as the

evidence of PW-16 the prosecution has proved that when

the incident took place, PW.4 Rafeeq Ahmed was very

much present at the scene of occurrence.

25. The defence has taken up a specific contention

that PWs-3, 5 and 6 are related to the complainant and as

such their evidence is inadmissible. It is not in dispute that

PW-1 and 3 are real brothers. However, during his cross-

examination PW-1 has denied that PWs-5 and 6 are his

relatives. However, during the cross-examination PW-3 has

stated that PW-5 is his wife's brother and PW-6 is his

wife's uncle's son. Since these two witnesses are related to

PW-3 from his wife's side that too a distant relative, during

his evidence, PW-1 has chosen to depose that they are not

related to him. However, this will not make his evidence or

the evidence of PW-5 and 6 inadmissible. Having regard to

the fact that PW-3 is the brother of PW-1 and PWs-5 and 6

are their distant relatives, their evidences have to be

scrutinized carefully and it is to be examined whether they

are having any motive to falsely implicate the accused

persons.

26. The evidence of PWs-1, 3, 5 and 6 prove the

fact that on 23.09.2015 at 5.00 p.m. while PW-1 and 3

were purchasing banana from the pushcart of PW-4 Rafeeq

Ahmed, accused Nos.1 to 3 went there and accused No.1

confronted the complainant saying that because of him he

could not get the job of driver at Telson company and so

saying he assaulted the complainant with hands. At this

stage accused No.2 offered him a knife saying that he

should assault the complainant with it. Taking the knife

from the hands of accused No.2, accused No.1 assaulted

the complainant on his left elbow. While accused Nos.2 and

3 were holding the complainant, accused No.1 assaulted

him on his neck with the knife. He also assaulted him on

his right elbow and when he tried to prevent accused No.1

from assaulting him and catch the knife, he sustained an

injury to the middle finger of the right hand. At this stage,

he fell down and accused No.3 stamped him on his

stomach with his right leg. PW-4 Rafeeq Ahmed, PW-5

Mubarak, PW-6 Muzafar and CW-8 Altaf intervened and

rescued him.

27. The evidence of PW-5 Mubarak and PW-6

Muzafar prove the fact that on the date of incident, they

had come to the complex for purchasing the clothes and at

that time complainant and his brother i.e., PW-3 were

purchasing banana and all the three accused came there

and started assaulting complainant saying that he was

responsible for accused No.1 not getting the employment.

They have also spoken to about the actual assault made

on the complainant and that though they wanted to rescue

the complainant, since the accused persons brandished the

knife, they did not tried to rescue him. The evidence of

PWs-1, 3, 5 and 6 further establish the fact that after

assaulting the complainant, accused persons left the place

by saying that today he has survived and accused No.1

threw the knife at the spot and all the three went away.

28. Even though a suggestion is made to PWs-1

and 3 that on the date of incident, PW-1 had eve teased

some girls and he was assaulted by the said girl and their

relatives, no such suggestion is made to PWs-5 and 6.

Except for the bald suggestion, the accused has failed to

place any material on record to show that on the date of

the incident, the complainant was indulged in eve-teasing

and he was assaulted by somebody else. Having regard to

the fact that the complainant has sustained injuries due to

use of knife, the bald suggestion that he was assaulted by

somebody else without making any specific allegations as

the nature of injuries sustained by him and the weapons

used for assaulting him, we are of the considered opinion

that only with the view to escape from the allegations

made against them, the accused have taken up a false

defence and they have not succeeded in establishing the

same.

29. We are aware of the fact that the burden of

proof on the accused to prove the defence is not beyond

reasonable doubt but only on preponderance of

probabilities. However, the accused have failed to prove

their defence even on preponderance of probabilities.

30. Even though the incident has taken place on

23.09.2015, the complaint came to be filed on 25.09.2015.

In this regard the prosecution has come up with

explanation that immediately after the incident, the

complainant was shifted to Government Hospital, Alnavar,

i.e., local Government hospital and thereafter he was

shifted to SDM hospital, Dharwad. In this regard PW-1 has

deposed that during 2015 both Ganesha festival as well as

Ramzan fell on the same day and the Police were engaged

in bandobast duty and therefore on 26.09.2015 police

visited the hospital and recorded his complaint.

31. In this regard the evidence of PW-8

Mahadevappa is relevant. He is the head constable who

has recorded the statement of complainant, based on

which the case came to be registered. He has deposed that

on 24.09.2015, i.e., on the very next day of incident, as

per the directions of his superior officer, he went to SDM

Hospital, Dharwad. Since the complainant/injured was

taking treatment, his brother and father informed him that

as he is resting, he will give the complaint later and

therefore he came back. He has further deposed on

26.09.2015, while he was engaged in the bandobast duty

regarding Kalasa banduri agitation at Kadabagere Cross,

his superior officer informed him that from the hospital

they have received the MLC and directed him to record the

statement of the complainant. Accordingly, at 11.15 a.m.

he visited the hospital and recorded the statement of the

complainant as per Ex.P1. He has also deposed that since

the busses were not plying, in a lorry he returned to

Alnavar and handed over the complaint. The SHO

registered the case on the basis of the complaint and

handed over the FIR to him. Because of scarcity of vehicles

plying, at 10.00 p.m. he visited the residence of the

Magistrate and handed over the FIR as per Ex.P5.

32. During his cross-examination, PW-8 has

deposed that on 25.09.2015, when he visited the hospital,

complainant/injured was not in a position to speak fluently,

he was speaking slowly. He has been questioned as to

whether he took the permission of the Doctors for

recording the statement of the complainant, which he has

answered in the negative. It is not the case of the

prosecution that the complainant/injured was on his death

bed and there was no expectation of him surviving and as

such his statement was to be recorded as his dying

declaration. Therefore, there was no need for PW-8 to take

the permission of the Medical Officer. Only in such

emergent cases where there is no possibility of the injured

surviving, as a precautionary measure, the opinion of the

Doctor would be taken as to whether the injured is in a fit

condition to give a statement or not. It is also relevant to

note that the complainant had sustained a deep cut injury

on his neck and therefore, the say of the prosecution that

he was not in a position to speak fluently and therefore, on

the next date of the incident i.e., on 24.09.2015 he could

not give a statement is probable and acceptable. Thus,

through the testimony of PWs-1 and 8, the prosecution has

proved and given a plausible explanation for the delay in

filing the complaint.

33. With regard to the delay in filing the complaint,

the accused persons have taken up a defence that after

being assaulted by the girls and their parents/relatives for

eve teasing, being ashamed of his own act, the

complainant did not choose to file a complaint and after

the information of the said incident spread in the town,

thinking that it is the accused persons who have spread

the information of the said incident, the complainant has

chosen to file a false complaint. As discussed earlier the

accused have failed to prove even by preponderance of

probabilities that on 23.09.2015 the complainant was

indulged in eve teasing and that he was assaulted by the

girls and the parents and being ashamed of it, the

complainant did not chose to file complaint against the real

culprits. The accused have also failed to prove that the

said The information with regard to the said incident

spread throughout the town and suspecting the hand of

the accused persons, later on a false complaint came to be

filed against them.

34. As already discussed, the accused have not

disputed the motive attributed by the prosecution

regarding accused No.1 not getting the employment in

Telsang company and accused No.1 suspecting the hand of

complainant in not getting employment. On the other hand

through the testimony of PWs-1 and 3, prosecution has

proved the motive for the accused persons to attack the

complainant. However, the accused have failed to establish

that the complainant had motive to falsely implicate

accused Nos.1 to 3. Through the testimony of PWs-1, 3, 5

and 6, the prosecution has proves the actual incident,

wherein accused Nos.1 to 3 assaulted the complainant

more particularly accused No.1 with knife. Inspite of the

fact that PWs-5 and 6 are distant relative of PWs 1 and 3,

we find their evidence reliable, cogent and convincing.

They have no ill will against the accused persons to falsely

depose against them. We have carefully scrutinized the

testimony of PWs-1, 3, 5 and 6 and find no reason to

disbelieve their evidence. The allegation made by the

accused persons regarding their false implication by

complainant is flimsy and not acceptable.

35. Further, the evidence of PWs-1 and 3 proves

the fact that immediately after the incident, the

complainant was shifted to Government hospital, Alnavar

and on the advice of the Doctors, he was shifted to SDM,

Dharwad. PW-11 Dr.Udaykumar is the Medical Officer

working at PHC, Alnavar. He has deposed that on

23.09.2015 at 6.00 p.m. complainant, i.e., PW-1 Akhil

Ahmedm Kutubuddin Munavalli was admitted to the

hospital with the history of assault and he found five

injuries and after first aid, he was recommended to be

taken to Government Hospital, Dharwad, but he was

shifted to SDM hospital, Dharwad. He has further deposed

that based on the details of treatment given at the SDM

hospital, Dharwad, he has issued the injury certificate at

Ex.P17. He has given opinion that injury Nos.1 to 3 are

simple in nature whereas injury Nos. 4 and 5 are grievous.

He has also opined that such injuries are possible if

assaulted with MO-1 knife. He has also spoken to about

the visit of the police when PW-1 was taking treatment at

the PHC, Alnavar, but expressed ignorance whether they

succeeded in recording his statement or not.

36. With regard to the opinion given by him as per

Ex.P19, PW-11 has deposed that on 13.02.2017 the IO

produced MO-1 knife before him and after examining the

same, he has given opinion as per Ex.P19, wherein he has

stated that the injuries as detailed in the injury certificate

are possible if assaulted with MO-1 knife. In fact PWs-1, 3,

5 and 6 have also identified MO-1 as the knife used by

accused No.1 to assault the complainant. Their evidence is

corroborated by the testimony of PW-11.

37. Thus the prosecution has proved that the

complainant was assaulted with MO-1 by accused No.1 and

at the time of incident, accused Nos.2 and 3 were with

accused No.1 and they instigated and abated accused No.1

to assault the complainant with MO-1. We find the

evidence of PWs-1, 3, 5 and 6 cogent, convincing and

reliable and there are no reasons to disbelieve their

testimony. Their evidence is supported by the testimony of

PW-11, who has treated the complainant at the

Government hospital, Alnavar.

38. PW-10 Dr. Sheshagiri had deposed that from

2006 he has worked at SDM Medical College at the

emergency department. On 23.09.2015, while he was in

the emergency ward, the complainant was brought at 9.10

p.m. After giving him an initial treatment, he was admitted

to the in-patient department. He had also deposed that

complainant had taken initial treatment at the PHC,

Alnavar. He has produced the records with regard to the

treatment given at the SDM, Dharwad. The evidence of

this witness is not disputed by the defence.

39. PW-2 Siraj Bhagwan is a witness to the

spot/seizure mahazar Ex.P2. However, he has not

supported the prosecution case and deposed that he

signed Ex.P2 when it was a blank. However, during his

cross-examination by the prosecution, he has admitted

that on 26.09.2015 he, PW-3 Khalil Ahmed and concerned

police visited the spot near the Pattan Panchayat Complex.

But, he has denied that PW-3 pointed out the knife which

was fallen at the spot and the same was seized through

Ex.P3. He has admitted that accused are his acquaintance

and his relationship with accused is good and they are his

regular customers. This explains the reason for PW-2 not

supporting the prosecution case.

40. However, the spot/seizure mahazar is proved

through the testimony of PW-3 and PW-16 the

Investigating Officer. Much is made out of the fact that

though the incident has taken place on 23.09.2015, the

recovery is made on 26.09.2015 after lapse of about three

days. However, the evidence placed on record establish

the fact that though the incident took place on 23.09.2015

at about 5.00 p.m., as the complainant was under

treatment having suffered a severe injury to his neck and

was not in a position to give statement, there was delay in

filing the compliant. As soon as the complaint came to be

registered, the Investigating Officer has visited the spot

and recovered the knife. It is relevant to note that the

knife had fallen in a busy public place. However, the police

were able to recover the same from the spot and we find

no reason to disbelieve the testimony of the prosecution

witnesses on this aspect. Moreover, the chemical report at

Ex.P20, the FSL report is negative for the presence of the

blood. This explains and corroborate the case of the

prosecution that for nearly three days, the MO-1 knife had

fallen at the spot and therefore, the presence of the blood

could not be deducted.

41. PW-15 Dr. B. Srinivas Pai had treated the

injured at SDM, Dharwad. He has specifically deposed that

there was fracture of left orbit below the left eye. Similarly

the injury on the middle finger of the right hand is also a

grievous injury. He has specifically stated that the injury to

the middle finger of the right hand was a fracture which

could be ascertained beyond any doubt and after verifying

the CT scan, he came to know that the left orbit was also

fractured and based on the medical records and CT scan,

he is able to say that there was fracture. The testimony of

this witness is not seriously disputed by the defence,

except eliciting a statement that the police have not taken

his opinion. Since the concerned police have taken the

opinion of PW-11, they have not separately taken the

opinion of this witness.

42. The testimony of PW-16 the Investigating

Officer prove the investigation conducted by him. Except

suggesting that on the date of incident, he had received

the information that the complainant was assaulted by

somebody else, the testimony of this witness is not

seriously disputed. No suggestion is made to this witness

that on 23.09.2015, the complainant was indulged in eve

teasing and he was assaulted by the girls and their

parents. In fact during their statement under Section 313

Cr.P.C, the accused persons have not at all given any

statement with regard to the complainant allegedly being

assaulted by somebody else and that the blame is put on

them. After examining the oral and documentary evidence,

the trial Court has come to a right conclusion that it is the

accused persons who assaulted the complainant with the

knife at MO-1 and held them guilty of the said offence. We

find no reason to interfere with the said conclusions

arrived at by the trial Court and therefore the appeal filed

by the accused persons is liable to be dismissed.

43. Now coming to the appeal filed by the

complainant that the conviction of the accused should have

been for the offence punishable under Section 307 IPC and

not for Section 325 IPC.

44. During the course of the judgment, the trial

Court has discussed in detail the nature of injuries

sustained by the complainant and the opinion of the

medical Officer regarding the same. Ex.P-17 is the wound

certificate issued by the Medical Officer, Primary Health

Centre, Alnavar. This document is issued based on the

details of the treatment taken by the complainant both at

the PHC, Alnavar as well as SDM, Hospital, Dharwad. As

per Ex.P17, the following are the injuries suffered by the

complainant:

"1. Closed lateral wound of size 6 and ½ cm. over left side of neck, bleeding present.

2. Lateral wound of size 3 x ½ cm on left elbow region

3. Lateral would of size 4x1/2 cm over right elbow region.

4. Cut injury over right middle finger of size 2x1/2 cm

5. Abrasion below eye region."

45. Out of these injuries, injury Nos.1 to 3, which

includes injury to the vital part i.e., neck are simple in

nature. Injury No.4 and 5 are grevious in nature being

fractures. In view of the fact that the injury inflicted on the

vital part viz., neck is simple in nature, it could not be held

that the intention of accused persons more particularly

accused No.1 was to cause death of the complainant.

46. As rightly discussed by the trial Court, it is not

the case of the prosecution that accused Nos.1 to 3

confronted complainant, after making preparations to

assault him. According to the prosecution, accused No.1

was under a mistaken notion that complainant was

responsible for him not getting employment in Telson

company where he was already working as driver and on

seeing the complainant in the market place, in a fit of

anger he started assaulting the complainant with hands.

Only after accused No.2 took out a knife and offered it to

accused No.1 with an advice to use it, accused No.1 took

the knife from him and assaulted the complainant. The

evidence on record indicate that accused Nos.2 and 3

caught hold of the complainant to facilitate accused No.1

to assault him. When complainant evaded the blows, he

sustained defence injuries to his left elbow, right elbow

and right middle finger. Considering these aspects, the

trial Court has come to a correct conclusion that the

accused persons did not have the intention of causing the

death of the complainant while he was assaulted with MO-

1 knife and therefore, instead of Section 307 IPC, Section

325 IPC is attracted and accordingly, convicted accused

Nos.1 to 3. Consequently, the appeal filed by the

complainant is also liable to be dismissed.

47. Admittedly, the State has not filed any appeal

either for converting the sentence for the offence under

Section 307 IPC or for enhancement of the punishment. In

the result, both appeals fail and accordingly, point Nos. 1

and 2 are answered in the Negative.

48. Point No.(iii): In view of our findings in point

Nos.1 and 2, we proceed to pass the following:

ORDER

(1) Crl.A.No.100354/2017 filed by complainant

and Crl.A.No.100262/2017 filed by the

accused Nos.1 to 3 are dismissed.

(2) Registry is directed to send back the trial

Court records.

(3) The trial Court shall secure the presence of

accused Nos.1 to 3 and commit them to

prison to undergo sentence.

Sd/-

JUDGE

Sd/-

JUDGE

RR