Krishna S/O Puttamadaiaha vs State Of Karnataka
2022 Latest Caselaw 5157 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 22ND DAY OF MARCH, 2022

                         BEFORE:

        THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

            CRIMINAL APPEAL NO.448 OF 2011

BETWEEN

1.    KRISHNA
      S/O PUTTAMADAIAHA
      AGED ABOUT 21 YEARS

2.    PUTTAMADAIAHA
      S/O LATE BASAVE GOWDA
      AGED ABOUT 50 YEARS
      BOTH ARE RESIDING AT
      BOMMANAIKANAHALLI VILLAGE
      T.NARASIPURA TALUQ
      MYSORE DISTRICT                       ... APPELLANTS

[BY SRI. M.V.VEDACHALA, ADVOCATE - ABSENT
SRI N.S.SAMPANGI RAMAIAH, ADVOCATE AS AMICUS CURIAE]

AND

1.    STATE OF KARNATAKA
      REPRESENTED BY ITS STATE PUBLIC PROSECUTOR,
      HIGH COURT BUILDING,
      BENGALURU - 560 001.

2.    T. NARASIPURA POLICE STATION
      MYSORE DISTRICT                ... RESPONDENTS

[BY SRI. R.D RENUKARADHYA, HCGP]
                               2




     THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C, PRAYING TO SET ASIDE THE JUDGMENT DATED
06/07.04.2011 PASSED BY THE PRL. S.J. MYSORE IN
S.C.NO.227/2009 - CONVICTING THE APPELLANTS/ACCUSED
FOR THE OFFENCE P/U/S 341, 324 R/W 34 OF IPC. THE
APPELLANTS/ACCUSED ARE SENTENCED TO UNDERGO S.I. FOR
ONE MONTH-FOR THE OFFENCE P/U/S 341 R/W 34 OF IPC. THE
APPELLANTS/ACCUSED ARE SENTENCED TO UNDERGO S.I. FOR
THREE YEARS AND PAY A FINE OF RS.5,000/- EACH, IN DEFAULT
OF PAYMENT OF FINE THEY SHALL UNDERGO FURTHER
IMPRISONMENT FOR SIX MONTHS FOR THE OFFENCE P/U/S 324
R/W 34 OF IPC.

     THIS CRIMINAL APPEAL COMING ON FOR FINAL
DISPOSAL, THROUGH VIDEO CONFERENCE/PHYSICAL HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:


                        JUDGMENT

This appeal is preferred against the judgment and order

dated 06.04.2011 passed by the Court of the Principal

Sessions Judge at Mysuru, in Sessions Case No.227/2009,

convicting and sentencing the appellants/accused Nos.1 and 2

for offences punishable under Section 341, 324 read with 34

of IPC.

2. It is the case of prosecution that on 01.06.2009 at

about 7.00 p.m., near a shaving shop in Bombanayakanahalli

village, when CW.1 - Krishna son of Kariappa (PW.3) was

proceeding by walk, the accused persons with a common

intention, wrongfully restrained him and with an intention to

take away his life, accused No.2 held him from the front and

accused No.1 stabbed him with a knife on his back and near

left ear.

3. Charges were framed against the appellants for

offences punishable under Section 341 and 307 read with

Section 34 of IPC.

4. In order to bring home of the guilt of accused, the

prosecution got examined 15 witnesses and got marked

Exs.P.12 to 14 and MO's 1 to 5.

5. Considering the oral and documentary evidence on

record, the trial Court came to the conclusion that the offence

was not committed with an intention to take away the life of

PW.3 and the said intention is not gathered from his evidence

and also the evidence of doctor - PW.1 who says that the

injuries are simple in nature and there is no fracture and

further, the injury inflicted on PW.3 is not endangering to his

life and in the absence of an intention to take away his life,

the offence under Section 307 is not made out and therefore

the offence which would attract is one under Section 324 of

IPC and not under Section 307 of IPC. The trial Court

convicted the accused for offences punishable under Section

341, 324 read with 34 of IPC.

6. Heard the learned Amicus Curiae appearing for

appellants and learned High Court Government Pleader for

respondent - State and perused the material on record.

7. PW.1 is the Senior Specialist at K. R. Hospital,

Mysuru who treated PW.3 and issued wound certificate, which

is marked as Ex.P1.

8. PW.2 is the medical officer at General Hospital,

T.Narsipura who has treated accused Nos.1 and 2 and issued

wound certificates marked as Exs.P4 and P3 respectively.

9. PW.3 is the injured and he is the first informant.

The complaint is marked as Ex.P7.

10. PWs.4 to 6, 8 and 9 are the eye witnesses to the

alleged incident.

11. PWs.7 and 11 are the panch witnesses to Ex.P5

under which knife (M.O.1) was seized.

12. PWs. 10 and 13 are the panch witnesses to the

spot mahazar-Ex.P6 under which M.O's 2 to 4 are recovered.

13. PWs.12 and 14 are the police personnel who

carried the articles to RFSL, Mysuru.

14. PW.15 is the PSI who after receiving the memo

from the K.R.Hospital, Mysuru visited the said hospital and

recorded the statement of the injured/PW.3 as per Ex.P7.

15. Amongst the prosecution witnesses PWs.7, 10, 11

and 13 have been treated hostile by the prosecution.

16. The incident has taken place on 01.06.2009 at

about 7.00 p.m. The injured PW.3 was shifted to K.R.Hospital

by his son-in-law - PW.6. PW.15, the PSI of T.Narasipura

Police Station has deposed that on receiving a memo from the

K.R.Hospital, he went to the hospital at about 10.30 p.m. and

recorded the statement of the injured - PW.3 as per Ex.P7,

between 11.00 and 11.30 p.m in the presence of the doctor.

Thereafter he returned to the Police Station and registered the

case and forwarded the FIR - Ex.P8 to the jurisdictional Court

as well as to his superior officers. He has stated that on the

next day he visited the spot and conducted the spot mahazar

as per Ex.P6 and seized MO's 2 to 5. He has further stated

that on 28.06.2009 the accused persons appeared before him

with anticipatory bail order and he recorded the voluntarily

statement of accused No.1 and seized the knife (MO.1) under

Ex.P5. He has sent the seized articles to the FSL and

thereafter handed over the further investigation to the ASI -

Rajanna who filed the charge sheet.

17. In Ex.P7, it is stated by PW.3 / injured that about

four years prior, his son by name K. Mahadevaswamy

purchased 1 acre 5 guntas of land from his brother Puttaraju.

Adjacent to the said land, the land belonging to one B.

Mahadev son of Basavegowda measuring about 1 acre 10

guntas is situated. There was a land dispute between them.

At about 7.00 p.m. accused No.2 i.e., the brother of

B. Mahadev and accused No.1, son of accused No.2 picked a

quarrel with him questioning him as to why he is cultivating

the land. Thereafter saying that they will finish him, accused

No.2 held him and accused No.1 took a knife from his pocket

and stabbed him on his back and near his left ear.

Immediately, his wife-Puttathayamma (PW.4) and his

daughter Savitha (PW.5) rushed to the spot. His son-in-law

(PW.6) after coming to know about the incident came to the

spot and shifted him to the hospital.

18. According to prosecution PW's 4, 5, 6, 8 and 9 are

the eye witnesses to the incident in question. PW.4 is the wife,

PW.5 is the daughter and PW.6 is the son-in-law of PW.3.

PWs.8 and 9 are the villagers. All the said witnesses have

stated that they have seen the quarrel and also accused No.2

holding PW.3 and accused No.1 stabbing him on his back and

near his left ear.

19. The learned amicus curiae for the appellants has

contended that the alleged eye witnesses namely PWs-4, 5,

6, 8 and 9 have come to the spot after the incident in

question, as admitted by PW-3 himself and therefore, they

cannot be said to be the eye witnesses. He contends that in

view of the existing land dispute between the parties, the

accused are falsely implicated. It is his further contention

that PW-3 has suppressed the genesis of the incident and

suppressed the fact that even the accused have sustained

injuries, which gives rise to doubt the genesis of the

prosecution case. He contends that the recovery of knife is

not proved as both the panch witnesses to the recovery

mahazar have turned hostile and not supported the

prosecution. He submits that the FSL report also does not

favour the prosecution. He contends that the trial Court

placing reliance on the interested testimony of the

prosecution witnesses has erroneously convicted the

accused and the same has resulted in miscarriage of justice.

20. Per contra, the learned High Court Government

Pleader has argued in support of the prosecution case and

sought to reject the appeal.

21. The injured has been examined as PW-3. He has

deposed in his evidence that while he was returning to his

house from the land and when he was near the shaving

shop, accused No.2 questioned him as to why he has

cultivated the land and when he replied that he has been

cultivating the land for a long time, accused No.2 held him

from the front and accused No.1 stabbed him with a knife

on his back and also near his left ear. It is relevant to see

that in his cross-examination, he has stated that when the

quarrel took place there were about 4 to 5 persons standing

near the shop and except them only the accused and

himself were present. He has stated that those persons

who were near the shop did not come to the place of

incident and when he shouted for help, no one came to his

rescue. He has further stated that when he was stabbed,

he screamed and on hearing his screaming sound, his

family members came to the spot and immediately the

accused persons ran away from the spot. This clear

admission of PW-3 in the cross-examination shows that

there were about 4 to 5 persons standing near the shop and

no one came to his rescue and after he was stabbed, his

family members came to the spot. Admittedly, those

persons who were standing near the shop are not the

witnesses who are examined by the prosecution. PW.3 has

not stated that PWs-8 and 9 were among those persons. If

the evidence of PW-3 is carefully perused, then there is no

room for doubt that only after the incident of stabbing took

place, his family members came to the spot. It is also not

the case of prosecution that PWs-8 and 9 were among 4-5

persons who were standing near the shop. It is pertinent to

mention that PW-3 has admitted in the cross-examination

that he has not informed the police while giving his

statement that PWs-8 and 9 have also seen the quarrel.

22. In Ex-P7, PW-3 has stated that accused No.2

held him and accused No.1 stabbed him on his back and his

left ear, at that time, his wife (PW-4) and daughter (PW-5)

came and requested the accused not to assault him and

then the accused ran away from the spot. Thereafter,

hearing about the incident his son-in-law (PW-6) came and

shifted him to K.R. hospital. However, PW-6 in his evidence

has deposed that he along with his wife (PW-4) and his

mother-in-law (PW-5) were sitting in the veranda of the

house and on hearing the commotion near the shaving shop

they ran towards the spot. At that time, he saw accused

No.2 holding PW-3 and accused No.1 stabbing him on his

back and near left ear. He has stated that apart from them

Sri. Ramananjaiah (PW-8) and another have witnessed the

incident. The evidence of PW-6 that he saw the incident is

doubtful and cannot be accepted in view of the specific

averments in Ex-P7 that after the accused persons ran away

from the spot, PW-6 came to the spot, on hearing the news

and shifted the injured to the hospital.

23. Admittedly, PWs-4, 5 and 6 are the close

relatives of PW-3. As per PW-3 himself there is a land

dispute between the accused and himself. Hence, they

claiming to be the eye witnesses, though they have not

seen the actual incident in question cannot be ruled out.

The same is fortified from the cross-examination of PW-3,

wherein he has stated that at the time of incident except

the accused, himself and 4-5 persons standing near the

shop, there were no others and no one came to his rescue

even when he screamed for help. Further it is elicited in the

cross-examination that while recording his statement by the

police, he has not stated that PWs-8 and 9 have witnessed

the incident. It is also elicited that by the time his daughter

and son-in-law came to the spot, he was bleeding. The

prosecution has not examined the persons who were

standing near the shop, when the quarrel took place.

Hence, it is very difficulty to accept the case of prosecution

that PWs-4 to 6, 8 and 9 are the eye witnesses to the

incident in question.

24. PW-3 being an injured witness, his evidence

cannot be disbelieved or brushed aside lightly. Firm, cogent

and convincing ground is required to discard the evidence of

an injured witness. In the case on hand, the injuries

sustained by PW-3 is corroborated by medical evidence.

Prosecution has examined PW-1, Senior Specialist at K.R.

Hospital, Mysore and marked the wound certificate of PW-3

as Ex-P2. PW-1 has deposed that on 01.06.2009 at about

9.05 p.m., he examined the patient by name Sri. Krishna

S/o. Kullapaji Kariyappa (PW-3) who came with a history of

assault by Sri. Puttamadaiah (accused No.2) on 01.06.2009

around 7.00 p.m. near petty shop in Bommanayakana halli

by using a knife. He has noticed the following injuries.

1) A bleeding incised wound on lower part of back

right side (over lower limbs) measuring 5cm x 2cm x 2cm

2) A bleeding incised wound on scalp behind left ear

measuring 5cm x 1.5 cm x 0.5 cm. He has opined that the

above mentioned injuries are simple in nature. Further, he

has stated that the patient was admitted as an inpatient on

01.06.2009 and discharged on 09.06.2009.

25. The medical evidence, therefore corroborates the

evidence of the injured - PW-3. However, the question is

under what circumstances PW-3 sustained those injuries

and who has caused the injuries to him.

26 . It is pertinent to see that prosecution has got

examined PW-2, working as Medical Officer at General

Hospital, T. Narasipura. PW-2 has stated that on

01.06.2009, he examined Sri. Puttamadaiah (A2) and one

Sri. Krishna S/o Puttamadaiah (A1). The history furnished

by accused No.1 is that he was assaulted by Krishna (PW-3)

with a knife. On examination of accused No.2 he has

noticed the following injuries:

1. Abrasion wound present over the dorsum of right

hand below little finger measuring 4 x 4 c.m.

bleeding present.

2. Abrasion wound over the left zygoma measuring

1 x 1 c.m.

3. Multiple contusions wound over the left arm

inner aspect.

4. Linear abrasion wound over the left side of chest

10 c.m. in length x 1 c.m, in width.

5. Abrasion wound over the abdomen 8 c.m. above

umbilicus measuring 1 x 1 c.m.

6. Cut wound at the inner aspect of left index

finger, measuring 2 x 1 x 0.5 c.m.

7. Complains of pain at the back of head.

On examination of accused No.1, he noticed the

following injuries:

1. Cut wound palmer aspect of right hand below

right little finger measuring 4 x 1 x 0.5 c.m.

2. Cut wound at the base of right little finger

measuring 2 x 1 c.m.

27. The wound certificates of accused No.1 and 2 are

marked as Exs-P3 and P4 respectively. The injuries are said

to be simple in nature. PW-3 has stated that if a person

holding MO-1 attacks another person and in that process

the sharp edge of MO-1 comes into contact of palm aspect

of right hand at the base of little finger there is possibility

of injuries being caused which are mentioned in Ex-P4 and

the injures 1 to 4 mentioned in Ex-P3, abrasions to be

caused during the course of scuffle and coming into contact

with hard and rough surface and injury No.6 mentioned in

Ex-P3 can be caused if inner aspect of index finger comes

into contact with sharp edged object.

28. It is relevant to see that PW-3 has nowhere

deposed about any scuffle or the accused persons

sustaining any such injuries to them. It is the specific case

of the prosecution that accused No.2 held him tightly from

the front and accused No.1 stabbed him from the back with

knife. If that is so, the accused persons sustaining injuries

has not been explained by PW-3, which gives rise to a

reasonable doubt about the genesis of the incident and the

question also arises as to who was the aggressor.

29. The learned Sessions Judge was of the opinion

that as per Ex-P3 and P4, the injuries sustained by the

accused persons are simple in nature and also abrasions

and contusion and if really PW-3 himself has assaulted

accused Nos.1 and 2, they would have given complaint to

the police. It is further observed that it is nowhere

mentioned that the police did not record the statement and

refused to receive the complaint and record the statement

of accused No.1 and 2.

30. The injuries sustained by accused Nos.1 and 2

includes multiple contusions, cut wounds. The history

furnished by accused No.1 to PW-2 is that he was assaulted

by PW-3 with a knife. It is interesting to note that the

incident has taken place at about 7.00 p.m. on 01.06.2009

and both accused Nos.1 and 2 have gone to the General

Hospital, T. Narasipura by 8.45 p.m., on the same night.

PW-3 in his cross-examination has stated that T. Narasipura

is about 12Kms from his village, whereas K.R. Hospital is

about 25Kms. It is not forthcoming as to why PW-6 and

others have chosen to take PW-3 to K.R. Hospital, which is

about 25Kms from the village when there is a Government

hospital situated at T. Narasipura, which is at a distance of

12Kms. PW-3 was examined by the Doctor at K.R. Hospital

at about 9.05 p.m. on 01.06.2009 and even before that

both the accused have gone to the hospital at T. Narasipura

and they were treated by PW-2. It is not in dispute that the

injuries sustained by both the parties are simple in nature

and therefore, the trial Court was not justified in ignoring

the injuries sustained by the accused persons on the ground

that they have not lodged any complaint to the police and

further doubting about PW-3 inflicting those injuries. In the

cross-examination of PW-2, he has stated that he has

informed the concerned police about the injuries sustained

by the accused persons on account of assault by Sri.

Krishna (PW-3) by knife and further that the injuries

mentioned in Exs-P3 and P4 could be caused if any person

tries to ward off the attack made with a knife. When PW-2

has specifically stated that he has informed the police as

stated above, then it is not forthcoming as to why the police

have not received any complaint from the accused.

According to PW-15, he received memo from the hospital

regarding the injuries sustained by the accused but when he

went to the hospital, the accused were not present and

thereafter he did not enquire them. Merely because the

prosecution has examined the Doctor who treated the

accused persons, is not sufficient to come to the conclusion

that prosecution has explained the injuries sustained by the

accused. Neither in Ex-P7 nor in the evidence of PW-3,

there is any mention about the accused persons sustaining

injuries. On the other hand, PW-3 has totally denied in the

cross-examination about accused persons sustaining

injuries and taking treatment in the hospital. In view of the

existing land dispute between the parties and in view of

non-explanation of injuries sustained by the accused

persons, the evidence of PW-3 and other alleged eye

witnesses does not inspire confidence of the Court so as to

come to the conclusion that accused have committed

offences for which they are convicted and sentenced by the

trial Court.

For the foregoing reasons, I proceed to pass the

following:

ORDER

Appeal is allowed.

The impugned judgment dated 06.04.2011 passed in

S.C.No.227/2009 by the Court of Principal Sessions Judge

at Mysore, convicting and sentencing the

appellants/accused Nos.1 and 2 for offence punishable

under Sections 341, 324 read with Section 34 of IPC is

hereby set aside. Accused are acquitted of the said

offences and their bail bonds stand cancelled.

The learned Amicus Curiae is entitled for a fee of

Rs.10,000/-(Rupees Ten Thousand only).

Sd/-

JUDGE HB/JY